Roanoke Country Club, Inc. v. Town of Williamston

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in accordance

with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-756

NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

ROANOKE COUNTRY CLUB, INC., T&J

PROPERTIES, LLC, ROBERT R. MARTIN

AND WIFE, THERESA W. MARTIN AND

REGINALD W. ROSS, JR. AND WIFE,

DELORES ROSS,

Petitioners

v. Martin County

No. 10 CVS 374

TOWN OF WILLIAMSTON,

Respondent

Appeal by petitioners from order entered 29 February 2012

and judgment entered 18 February 2013 by Judge Marvin K. Blount,

III in Martin County Superior Court. Heard in the Court of

Appeals 11 December 2013.

Eldridge Law Firm, PC, by James E. Eldridge, for

petitioner-appellants.

Sharp, Michael, Graham & Baker, LLP, by Ronald G. Baker,

for respondent-appellee.

CALABRIA, Judge.

Petitioners appeal from (1) the trial court’s judgment in

favor of the Town of Williamston (“respondent”), which affirmed

respondent’s annexation ordinance (“the ordinance”); and (2) the

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trial court’s order awarding sanctions to respondent due to

petitioners’ failure to comply with the Rules Implementing

Statewide Mediated Settlement Conferences in Superior Court

Civil Actions (“the mediation rules”). We affirm.

I. Background

On 5 January 2009, respondent adopted a “Resolution of

Consideration” identifying an area of land for potential

annexation (“the annexation area”). On 11 January 2010,

respondent adopted a “Resolution of Intent” which described the

boundaries of the annexation area and fixed the dates for a

public informational meeting and public hearing. Respondent

also adopted an annexation report which stated that the degree

of coincidence between the annexation area’s boundary and

respondent’s corporate limits was 20.49%. A portion of the

proposed boundary of the annexation area ran along a private

road known as Courtney Lane.

Respondent conducted a public informational meeting on 1

March 2010 and a public hearing on 5 April 2010. On 3 May 2010,

respondent adopted an annexation ordinance for the annexation

area with an effective date of 3 September 2010. Prior to that

date, on 1 July 2010, petitioners, who own real property within

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the annexation area, filed a petition for review of the

annexation in Martin County Superior Court.

The case was mediated on 1 September 2011. Petitioners

Theresa W. Martin (“Mrs. Martin”) and Delores Ross (“Mrs. Ross”)

did not attend this mediation. In addition, no one with the

authority to settle the case on behalf of petitioners Roanoke

Country Club, Inc. (“RCC”) and T&J Properties, LLC, (“T&J”) was

present. During the mediation, respondent was informed that any

agreement made during the course of the mediation would need to

be approved by a voluntary association known as the Martin

County Citizens Against Annexation (“MCCAA”), of which all

petitioners were members, and by the Board of Directors of RCC.

The parties that were actually present at the mediation were

able to negotiate a preliminary settlement agreement. However,

this agreement was subsequently rejected by MCCAA.

On 19 October 2011, respondent filed a motion for sanctions

against petitioners due to the failure of all petitioners to

attend the mediated settlement conference as required by N.C.

Gen. Stat. § 7A-38.1 (2013) and Rule 4.A. of the mediation

rules. On 29 February 2012, the trial court entered an order

sanctioning petitioners and ordering them to pay $4,235.15 in

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attorney’s fees. In addition, Mrs. Martin and Mrs. Ross were

fined $1,000.00.

After the mediated settlement agreement was rejected, the

petition challenging the annexation was heard by the trial court

in October 2012. On 18 February 2013, the court entered a

judgment affirming the annexation. Petitioners appeal.

II. Annexation

Petitioners argue that the trial court erred by affirming

respondent’s annexation. Specifically, petitioners contend (1)

that the trial court erred by admitting into evidence

respondent’s trial exhibit 17; and (2) that the trial court

erred by finding and concluding that respondent complied with

all relevant annexation statutes.

A. Trial Exhibit 17

Petitioners first argue that the trial court erred by

admitting respondent’s exhibit 17, a map of the annexation area

from 2010, into evidence because the probative value of the

exhibit was outweighed by unfair prejudice. However, as

petitioners concede in their brief, they did not object to

respondent’s exhibit 18, a map of the annexation area in 2012,

which is virtually identical to the map depicted in exhibit 17.

While petitioners appear to be under the impression that it was

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unnecessary to object to exhibit 18 because the “damage [was]

already done” by the introduction of exhibit 17, it is well-

established that “[w]hen . . . evidence is admitted over

objection, but the same or similar evidence has been previously

admitted or is later admitted without objection, the benefit of

the objection is lost.” City of Statesville v. Cloaninger, 106

N.C. App. 10, 17, 415 S.E.2d 111, 115-16 (1992)(internal

quotations and citation omitted and emphasis added). Since

petitioners did not object to exhibit 18, they cannot argue on

appeal that the substantially similar exhibit 17 was

inadmissible. This argument is overruled.

B. Compliance with Annexation Statutes

Petitioners next argue that the trial court erred by

finding and concluding that respondent complied with all of the

requirements of the statutes governing annexation. We disagree.

Judicial review of an annexation ordinance is limited to

a determination of whether applicable

annexation statutes have been substantially

complied with. When the record submitted in

superior court by the municipal corporation

demonstrates, on its face, substantial

compliance with the applicable annexation

statutes, then the burden falls on the

petitioners to show by competent and

substantial evidence that the statutory

requirements were in fact not met or that

procedural irregularities occurred which

materially prejudiced their substantive

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rights.

In determining the validity of an

annexation ordinance, the court's

review is limited to the following

inquiries: (1) Did the

municipality comply with the

statutory procedures? (2) If not,

will the petitioners suffer

material injury thereby? (3) Does

the area to be annexed meet the

requirements of G.S. 160A-48 . .

.?

Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 15, 356

S.E.2d 599, 601 (1987) (internal quotations and citations

omitted). “The party challenging the annexation has the burden

of showing error.” In re Annexation Ordinance, 296 N.C. 1, 10,

249 S.E.2d 698, 703 (1978).

Initially, we note that our annexation statutes were

significantly overhauled in 2011. See 2011 N.C. Sess. Law 396.

However, the annexation at issue in the instant case was

initiated prior to this overhaul, and consequently, respondent

was required to comply with the requirements established by the

previous version of the annexation statutes. In the instant

case, petitioners contend that respondent failed to satisfy the

requirements included in N.C. Gen. Stat. § 160A-48 & -49 (2009).

1. N.C. Gen. Stat. § 160-49

Pursuant to N.C. Gen. Stat. § 160A-49,

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[a]t least 30 days before the date of the

public informational meeting, the governing

board shall approve the report provided for

in G.S. 160A-47, and shall make it available

to the public at the office of the municipal

clerk. In addition, the municipality may

prepare a summary of the full report for

public distribution.

N.C. Gen. Stat. § 160A-49(c) (2009). At the hearing reviewing

the annexation ordinance, petitioners Robert R. Martin (“Mr.

Martin”) and Reginald W. Ross, Jr. (“Mr. Ross”) each testified

before the trial court that they were unable to obtain full

copies of the annexation report from respondent. However, N.C.

Gen. Stat. § 160A-49(c) does not require that a complete copy of

the annexation report be made available for distribution to the

public. Instead, the statute only requires that the complete

report be made available to the public at the office of the

municipal clerk. Respondent’s town clerk, Glinda Fox (“Fox”),

specifically testified that the full annexation report was

available in her office for the required statutory period.

Fox’s testimony was sufficient to support the trial court’s

finding and conclusion that respondent complied with N.C. Gen.

Stat. § 160A-49. This argument is overruled.

2. N.C. Gen. Stat. § 160A-48

Petitioners next argue that the trial court erred by

finding and concluding that respondent complied with the

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requirements of N.C. Gen. Stat. § 160A-48. Specifically,

petitioners contend that respondent’s annexation failed to

comply with N.C. Gen. Stat. § 160A-48(e), which requires that

“[i]n fixing new municipal boundaries, a municipal governing

board shall use recorded property lines and streets as

boundaries.” Petitioners contend that respondent’s annexation

violated this requirement because (1) the boundary line for the

annexed area crosses streets; and (2) the boundary line runs

along a private road known as Courtney Lane.

a. Crossing Streets

Petitioners first argue that annexation boundaries which

cross over streets are not permitted by N.C. Gen. Stat. § 160A-

48(e) because “[w]hen read in conjunction with using recorded

property lines in fixing the boundary, the language dictates

that the boundary is properly established when it follows the

street and not when it crosses over it.” However, petitioners

fail to cite any authority for this proposition. N.C. Gen.

Stat. § 160A-48(e) simply requires the use of streets as

boundaries. It does not specify that the boundary must

continuously follow a particular side of a street and this Court

cannot judicially impose such a requirement. See Zaldana v.

Smith, ___ N.C. App. ___, ___, 749 S.E.2d 461, 463 (2013)(“We

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have no power to add to or subtract from the language of the

statute.” (internal quotations and citation omitted)). Instead,

the statute allows for the annexation boundary to follow along

any part of the street, so long as the boundary is actually

included within the street. Cf. Capps v. City of Kinston, 215

N.C. App. 110, 122, 715 S.E.2d 520, 528 (2011)(invalidating an

annexation boundary because it ran parallel to, rather than on,

a street). Thus, respondent’s annexation, with boundaries which

followed recorded property lines and which crossed but

continuously remained upon some portion of various streets,

complied with N.C. Gen. Stat. § 160A-48(e) (2009). This

argument is overruled.

b. Use of Private Road

Petitioners next argue that the use of the private street

Courtney Lane as a boundary was not permitted by N.C. Gen. Stat.

§ 160A-48(e). Petitioners’ argument is another attempt to add a

requirement that is not specifically included in that statute.

N.C. Gen. Stat. § 160A-48(e) merely requires the use of a

“street” as a boundary; there is no requirement that the street

be designated as public. In contrast, there are many examples

of statutes which specifically apply only to public roads. See,

e.g., N.C. Gen. Stat. § 160A-300 (2013)(“A city may by ordinance

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prohibit, regulate, divert, control, and limit pedestrian or

vehicular traffic upon the public streets, sidewalks, alleys,

and bridges of the city.” (emphasis added)). Since there is no

specific “public” limitation in N.C. Gen. Stat. § 160A-48(e), we

cannot judicially impose one. See Zaldana, ___ N.C. App. at

___, 749 S.E.2d at 463.

In the instant case, the trial court specifically found

that “Courtney Lane is a street.” The court additionally found

that Courtney Lane served as a method of ingress and egress from

three homes, including the sole method of access for one

property, that Courtney Lane was also used for construction

access, and that it would be used to access a shopping center in

the future. These findings, which were supported by the

evidence presented to the trial court, adequately support the

trial court’s determination that Courtney Lane was properly

considered a street for purposes of N.C. Gen. Stat. § 160A-

48(e). This argument is overruled.

Since we have rejected each of petitioners’ arguments, we

hold that the trial court properly upheld respondent’s

annexation and affirm the trial court’s judgment.

III. Mediation Sanctions

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Petitioners argue that the trial court erred by ordering

sanctions for the failure of some petitioners to attend

mediation. We disagree.

Pursuant to N.C. Gen. Stat. § 7A-38.1(g),

[a]ny person required to attend a mediated

settlement conference or other settlement

procedure under this section who, without

good cause, fails to attend . . . in

compliance with this section and the rules

promulgated by the Supreme Court to

implement this section is subject to . . .

monetary sanctions imposed by a resident or

presiding superior court judge.

N.C. Gen. Stat. § 7A-38.1(g) (2013). Rule 4.A.(1) of the

mediation rules specifies that a mediation must be attended by

“[a]ll individual parties” and that

[a]ny party that is not a natural person or

a governmental entity shall be represented

at the conference by an officer, employee or

agent who is not such party’s outside

counsel and who has been authorized to

decide on behalf of such party whether and

on what terms to settle the action or who

has been authorized to negotiate on behalf

of such party and can promptly communicate

during the conference with persons who have

decision-making authority to settle the

action[.]

Regarding corporate parties, the rule further specifies that

if a specific procedure is required by . . .

the party’s governing documents (e.g.,

articles of incorporation, bylaws,

partnership agreement, articles of

organization or operating agreement) to

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approve the terms of the settlement, then

the representative shall have the authority

to negotiate and make recommendations to the

applicable approval authority in accordance

with that procedure.

A. Mrs. Martin and Mrs. Ross

In the instant case, it is undisputed that neither Mrs.

Martin nor Mrs. Ross attended the mediation. Petitioners filed

an affidavit from Mr. Martin in which he attempted to explain

Mrs. Martin and Mrs. Ross’s absence by averring that he

“obtained authority from [his] wife to appear . . . and

negotiate on her behalf” and that he understood that Mr. Ross

“was likewise authorized to appear and negotiate on his wife’s

behalf during the Mediation.” However, there is nothing in the

mediation rules which would permit Mrs. Martin and Mrs. Ross to

authorize their husbands to represent them at mediation. Rule

4.A.(2) makes clear that “[a]ny party or person required to

attend a mediated settlement conference shall physically attend

until an agreement is reduced to writing and signed as provided

in Rule 4.C. or an impasse has been declared.” This rule’s

requirement of physical attendance by all parties may only be

excused “(a) By agreement of all parties and persons required to

attend and the mediator; or (b) By order of the senior resident

superior court judge, upon motion of a party and notice to all

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parties and persons required to attend and the mediator.”

There is no provision which would allow a party to unilaterally

authorize someone to appear on their behalf.

Thus, the trial court properly found that Mrs. Martin and

Mrs. Ross “did not attend the Mediated Settlement Conference and

have offered no sufficient excuse for not attending.” This

finding, in turn, supported the trial court’s conclusions that

Mrs. Martin and Mrs. Ross violated the mediation rules by

failing to attend the mediation.

B. RCC and T&J

Finally, petitioners contend that RCC and T&J did not

violate the mediation rules because they were both represented

by an individual with “the authority to negotiate and make

recommendations to the applicable approval authority” as

required by Rule 4.A.(1). Petitioners base this argument upon

the affidavit of George Griffin (“Griffin”), an officer of RCC,

in which Griffin averred that he was authorized to negotiate on

behalf of RCC, and upon Mr. Martin’s affidavit, in which he

averred that he contacted T&J’s directors and obtained their

consent to negotiate on the company’s behalf. However, the

trial court declined to credit these affidavits because it found

that petitioners failed to present any governing documents from

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either RCC or T&J which demonstrated that a specific method of

approval was required for these entities. As the finder of

fact, the trial court was entitled to decide that Mr. Martin and

Griffin’s respective affidavits were insufficient to establish

RCC and T&J’s compliance with Rule 4.A. See Coble v. Coble, 300

N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980)(“The trial court

must itself determine what pertinent facts are actually

established by the evidence before it, and it is not for an

appellate court to determine de novo the weight and credibility

to be given to evidence disclosed by the record on appeal.”).

Ultimately, the trial court’s findings were sufficient to

support its conclusions that both T&J and RCC violated the

mediation rules. This argument is overruled.

IV. Conclusion

Respondent’s annexation complied with all relevant

statutory requirements and, accordingly, we affirm the trial

court’s judgment upholding the annexation. The trial court

properly concluded that Mrs. Martin, Mrs. Ross, RCC, and T&J

violated the mediation rules. As a result, we affirm the trial

court’s order awarding sanctions to respondent based upon these

violations.

Affirmed.

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Judges BRYANT and GEER concur.

Report per Rule 30(e).