N.C. Dep't of Transp. v. Mission Battleground Park

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA16-125

Filed: 6 September 2016

Guilford County, No. 13 CVS 4061

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Plaintiff,

v.

MISSION BATTLEGROUND PARK, DST; MISSION BATTLEGROUND PARK

LEASECO, LLC, Lessee; LASALLE BANK NATIONAL ASSOCIATION, as Trustee

for the Register Holders of CD 2006-CD3 Commercial Mortgage Pass-Through

Certificates; LAT BATTLEGROUND PARK, LLC, Defendants.

Appeal by defendants from judgment entered 30 July 2015 and orders

entered 24 September 2015 by Judge Richard S. Gottlieb in Guilford County

Superior Court. Heard in the Court of Appeals 9 August 2016.

Attorney General Roy Cooper, by Special Deputy Attorney General Hilda

Burnett-Baker and Assistant Attorney General Phyllis A. Turner, for the

North Carolina Department of Transportation.

Smith Moore Leatherwood LLP, by Patrick M. Kane, Bruce P. Ashley and

Matthew Nis Leerberg, for defendant-appellants.

TYSON, Judge.

Defendants appeal from judgment entered upon a jury’s verdict returned on

just compensation. We find no error.

I. Background

Landmark at Battleground Park (“Landmark”) is a 240-unit apartment

complex located on Drawbridge Parkway in Greensboro, North Carolina. The

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named Defendants are the current owner, former owner, mortgage holder, and

lessee of Landmark.

On 11 March 2013, the North Carolina Department of Transportation

(“NCDOT”) condemned a 2.193 acres portion of Landmark’s property for

construction of a portion of “the Greensboro Urban Loop.” The elevated highway

was constructed near and on an angle relative to the front entrance of the property.

Landmark is owned by Defendant LAT Battleground Park, LLC (“LAT

Battleground”). LAT Battleground purchased the property from Defendant, Mission

Battleground Park DST, for $14,780,000.00, with knowledge of and during the

pendency of the condemnation.

Prior to the highway construction, the apartment complex was described as

“tucked away” from the road and situated “in the woods” on 32.76 acres. A heavily

wooded tree buffer existed adjacent to the road. Landmark’s secluded location was

asserted to provide a market advantage for prospective tenants. The outdoor

amenities, including pools, volleyball and tennis courts, and wooded areas are “main

selling points” for potential residents. Drawbridge Parkway was a low traffic

volume, two-lane roadway with a posted thirty mile-per-hour speed limit prior to

the construction. Drawbridge Parkway was relocated on two lanes closer to the

complex on property taken as part of this condemnation.

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The highway construction eliminated the wooded buffer in front of the

property, part of which was located on the Drawbridge Parkway’s right-of-way. The

elevated six-lane highway runs at an angle in front of the property, thirty-five to

forty feet above the ground. Evidence presented showed a portion of the highway

was constructed over LAT Battleground’s property.

The highway plans include construction of a 15-foot noise wall, rising from

the highway to fifty to fifty-five feet in front of Landmark. The construction plans

also include another thirty-five foot noise wall on Drawbridge Parkway, directly

across the street from Landmark.

The parties did not agree upon the amount of damages and compensation

owed to Landmark for the property taken. NCDOT deposited $276,000.00 with the

Guilford County Clerk of Superior Court as its estimate of just compensation.

Landmark claimed NCDOT’s estimate was grossly inadequate, and asserted just

compensation for the appropriation and damages ranged between $3,100,000.00 and

$3,700,000.00.

NCDOT filed a complaint in Guilford County Superior Court to obtain a

determination of just compensation due. The cause was tried before a jury on 29

June 2015. Defendants’ evidence tended to show damages of $3,169,175.00 incurred

from the construction of the highway project across a portion of the property.

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NCDOT presented two expert witnesses. One expert witness testified

Defendants’ damages were $276,000.00, the amount of the deposit with the clerk of

court. NCDOT’s other expert witness testified Defendants’ damages were

$1,271,850.00. The jury returned a verdict, and determined $350,000.00 was just

compensation for damages arising from the taking of the property. LAT

Battleground appeals.

II. Issues

LAT Battleground argues the trial court erred by: (1) excluding James

Collins’ expert opinion testimony on fair market value; (2) excluding a sound and

noise demonstration by LAT Battleground’s acoustical expert, Dr. Noral Stewart;

(3) declining to hold a hearing on the issue of juror misconduct and denying LAT

Battleground’s motion for a new trial based upon juror misconduct; and (4) giving a

special jury instruction requested by NCDOT.

III. Evidentiary Rulings

A. Standard of Review

The trial courts are afforded “wide latitude of discretion when making a

determination about the admissibility of expert testimony.” State v. Bullard, 312

N.C. 129, 140, 322 S.E.2d 370, 376 (1984). The standard of review for a trial court’s

evidentiary ruling is abuse of discretion. Marley v. Graper, 135 N.C. App. 423, 425,

521 S.E.2d 129, 132 (1999). “To demonstrate an abuse of discretion, the appellant

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must show that the trial court’s ruling was manifestly unsupported by reason, or

could not be the product of a reasoned decision.” Wachovia Bank v. Clean River

Corp., 178 N.C. App. 528, 531, 631 S.E.2d 879, 882 (2006) (citation and emphasis

omitted).

B. Opinion Testimony and Report of James Collins

1. Preservation of Error

NCDOT argues LAT Battleground did not preserve the trial court’s ruling on

the admissibility of Mr. Collins’ testimony and evidence for appellate review,

because NCDOT did not call Mr. Collins as a witness at trial. We disagree.

Pursuant to Rule 103 of the Rules of Civil Procedure:

(a) Effect of erroneous ruling. -- Error may not be

predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is

affected, and

. . . .

(2) Offer of proof. -- In case the ruling is one excluding

evidence, the substance of the evidence was made known

to the court by offer or was apparent from the context

within which questions were asked.

Once the court makes a definitive ruling on the record

admitting or excluding evidence, either at or before trial,

a party need not renew an objection or offer of proof to

preserve a claim of error for appeal.

N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2015).

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LAT Battleground made an offer of proof of the substance of Mr. Collins’

testimony, which appears in the record. This issue was preserved under the plain

language of Rule 103, and is properly before us. See GE Betz, Inc. v. Conrad, 231

N.C. App. 214, 232, 752 S.E.2d 634, 648 (2013) (“A motion in limine is typically

insufficient to preserve for appeal the admissibility of evidence; however, a party

may preserve the exclusion of evidence for appellate review by making a specific

offer of proof.”). This argument is overruled.

2. Requirement of Voir Dire

LAT Battleground argues the trial court erred by ruling upon NCDOT’s

motion to exclude Mr. Collins’ opinion and evidence without conducting a voir dire.

It asserts the absence of a voir dire deprived the court of the opportunity to

understand the nature and scope of Mr. Colllins’ testimony before deciding to

exclude it.

LAT Battleground cites no binding precedent which requires the trial court to

conduct a formal voir dire hearing prior to ruling on a motion in limine. LAT

Battleground cites Floyd v. Allen, 2008 N.C. App. LEXIS 2000, *20-21, 2008 WL

4779737, *7 (N.C. Ct. App. Nov. 8, 2008), an unpublished opinion of our Court, in

which the Court held it was error to exclude expert testimony when the trial court

ruled on the motion within fifteen minutes, and without considering the expert’s

deposition or other evidence of his anticipated testimony.

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Here, the record shows the trial court heard arguments of counsel and

considered Mr. Collins’ 124-page report, which included his credentials, research,

methodology, and opinion. The trial court took the matter under advisement during

the overnight recess, far different than the facts present in Floyd. The information

presented to and considered by the trial court was sufficient to allow the court to

properly rule upon NCDOT’s motion in limine without holding a formal voir dire.

This argument is overruled.

3. Trial Court’s Ruling on N.C. Gen. Stat. § 93A-83

N.C. Gen. Stat. § 93A-83, a provision of the regulatory Real Estate License

Law, provides a licensed real estate broker in good standing “may prepare a broker

price opinion or comparative market analysis and charge and collect a fee for the

opinion,” if the list of requirements in subsection (c) of the statute are met. N.C.

Gen. Stat. § 93A-83(a) (2015). The terms “broker price opinion” and “comparative

market analysis” are statutorily defined as

an estimate prepared by a licensed real estate broker that

details the probable selling price or leasing price of a

particular parcel of or interest in property and provides a

varying level of detail about the property’s condition,

market, and neighborhood, and information on

comparable properties, but does not include an automated

valuation model.

N.C. Gen. Stat. § 93A-82 (2015).

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The statute also prohibits a licensed broker from preparing an appraisal.

The statute states:

Notwithstanding any provisions to the contrary, a person

licensed pursuant to this Chapter may not knowingly

prepare a broker price opinion or comparative market

analysis for any purpose in lieu of an appraisal when an

appraisal is required by federal or State law. A broker

price opinion or comparative market analysis that

estimates the value of or worth a parcel of or interest in

real estate rather than sales or leasing price shall be

deemed to be an appraisal and may not be prepared by a

licensed broker under the authority of this Article, but

may only be prepared by a duly licensed or certified

appraiser, and shall meet the regulations adopted by the

North Carolina Appraisal Board. A broker price opinion or

comparative market analysis shall not under any

circumstances be referred to as a valuation or appraisal.

N.C. Gen. Stat. § 93A-83(f) (2015) (emphases supplied).

The statute sets forth eleven enumerated “required contents” of a broker

price opinion or comparative market analysis. N.C. Gen. Stat. § 93A-83(c) (2015).

Included in these requirements is a disclaimer, which states as follows:

“This opinion is not an appraisal of the market value of

the property, and may not be used in lieu of an appraisal.

If an appraisal is desired, the services of a licensed or

certified appraiser shall be obtained. This opinion may

not be used by any party as the primary basis to

determine the value of a parcel of or interest in real

property for a mortgage loan origination, including first

and second mortgages, refinances, or equity lines of

credit.”

N.C. Gen. Stat. § 93A-83(c)(10) (2015).

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LAT Battleground retained Mr. Collins, a licensed real estate broker and

certified property manager (“CPM”), to provide an independent analysis of a “broker

price opinion or comparative market analysis” of Landmark before and after the

taking. N.C. Gen. Stat. § 93A-83(a). Mr. Collins opined the fair price for Landmark

before the taking was $15,338,000.00, and a fair price after the taking of

$11,603,733.00, a difference of $3,734,276.00. Mr. Collins explained his opinion and

market analysis in a 124-page report.

On the morning of trial, NCDOT moved to exclude the testimony and report

prepared by Mr. Collins under the provisions of N.C. Gen. Stat. § 93A-83. NCDOT

argued Collins’ report failed to meet the statutory requirements for a broker price

opinion or comparative market analysis, violated the restrictions imposed by the

statute regarding a broker price opinion or comparative market analysis, and

violated Rule of Evidence 702.

The trial court determined Mr. Collins’ report violated N.C. Gen. Stat. § 93A-

83(f), because it “purports to offer a fair market analysis before and after the taking

that was determined on history bases.” The court further stated the report

“repeatedly refers to a fair market valuation and such references may not be offered

at trial.” The court allowed Mr. Collins’ testimony before the jury, but limited him

to offering an opinion on sales and leasing prices for the property.

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LAT Battleground chose not to call Mr. Collins as a witness. LAT

Battleground presented the testimony of Michael Clapp, a certified appraiser. Mr.

Clapp testified the fair market value of the property before the taking was

$13,944,250.00, and the fair market value after the taking was $10,775,075.00, a

difference of $3,169,175.00.

NCDOT’s certified appraiser, Rod Meers, testified the fair market value of

Landmark before the taking was $14,835,100.00, and the fair market value after

the taking was $14,559,050.00, for a difference of $276,050.00. Another certified

appraiser, J. Thomas Taylor, testified for NCDOT that the fair market value of

Landmark before the taking was $14,743,975.00, and the fair market value after

the taking was $13,472,125.00, for a difference of $1,271,850.00. The jury did not

adopt the exact value opinions of any of the appraisers in determining its verdict of

just compensation.

Mr. Collins’ report repeatedly states it is an opinion of the “fair market value”

of the property, before and after the taking, rather than the “probable selling price,”

which would be permitted under the statute. Under the plain language of the

statute, Mr. Collins, a licensed real estate broker, who is not also a licensed

appraiser, is not permitted to prepare “a valuation appraisal.” N.C. Gen. Stat.

§ 93A-83(f). The trial court properly held Mr. Collins was bound by the restriction

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set forth in the statute in limiting his testimony. This assertion of error is

overruled.

C. Exclusion of the Sound Demonstration

LAT Battleground argues the trial court abused its discretion by excluding a

sound and noise demonstration prepared by Dr. Noral Stewart. We disagree.

Dr. Stewart was tendered and accepted as an expert witness in the areas of

acoustics, noise control, and environmental noise. LAT Battleground sought to

introduce into evidence a sound demonstration as part of Dr. Stewart’s testimony to

show the purported increase in the noise levels in the apartment complex before

and after the taking and construction.

The test for determining whether a demonstration is admissible “is whether,

if relevant, the probative value of the evidence is substantially outweighed by the

danger of unfair prejudice, confusion of the issues or misleading the jury, under

Rule 403 of the Rules of Evidence.” State v. Witherspoon, 199 N.C. App. 141, 149,

681 S.E.2d 348, 353 (2009) (citation omitted). The sounds Dr. Stewart used for the

demonstration was “pink noise,” which is a broadband sound, rather than highway

noise. Dr. Stewart opined that the noise levels in Landmark would be up to four

times louder as a result of the taking, and was attempting to show various decibel

levels of sound through this demonstration.

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Defendants informed the trial court that their experts had relied upon

estimates of increased noise in determining their values, but had not heard Dr.

Stewart’s sound demonstrations. The court performed a Rule 403 balancing test,

and determined: (1) Defendant’s valuation experts did not consider the sound

demonstrations in formulating their opinions of value; (2) the demonstration was of

a sound that was not similar to highway noise; (3) the noise generated was based on

an average, inflated by ten percent; and, (4) a potential tenant or resident “would

not hear an average,” and excluded the demonstration.

Based upon these considerations, LAT Battleground has failed to show the

trial court abused its discretion in excluding Dr. Stewart’s sound demonstration.

This argument is overruled.

IV. Juror Misconduct

LAT Battleground argues the trial court erred by failing to hold an

evidentiary hearing on the issue of juror misconduct and by denying their motion

for a new trial. We disagree.

After the jury’s verdict was announced, counsel for LAT Battleground spoke

with Jurors Number Five and Six. Both jurors disclosed to counsel that

“extraneous” information was before the jury during deliberations. Juror Number

Six told the jury that through his work as a civil engineer, he knew that NCDOT

was spending millions of dollars constructing “noise walls” at Landmark. Evidence

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of the planned construction of noise walls was in evidence and before the jury, but

an estimated cost of the noise barrier walls had not been introduced at trial.

The trial concluded on 7 July 2015. The trial court’s judgment was entered

on 30 July 2015. On 10 August 2015, LAT Battleground filed a motion for a new

trial under Rule 59(a)(2), based upon juror misconduct. On 2 September 2015, LAT

Battleground filed a request for an evidentiary hearing on the issue of juror

misconduct.

A. Standard of Review

“[A] motion for a new trial is addressed to the sound judicial discretion of the

trial judge and is not reviewable in the absence of an abuse of discretion.” Smith v.

Price, 315 N.C. 523, 533, 340 S.E.2d 408, 414 (1986) (citation omitted).

B. Analysis

Rule 606(b) of the Rules of Evidence provides:

Upon an inquiry into the validity of a verdict or

indictment, a juror may not testify as to any matter or

statement occurring during the course of the jury’s

deliberations or to the effect of anything upon his or any

other juror’s mind or emotions as influencing him to

assent to or dissent from the verdict or indictment or

concerning his mental processes in connection therewith,

except that a juror may testify on the question whether

extraneous prejudicial information was improperly

brought to the jury’s attention or whether any outside

influence was improperly brought to bear upon any juror.

Nor may his affidavit or evidence of any statement by him

concerning a matter about which he would be precluded

from testifying be received for these purposes.

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N.C. Gen. Stat. § 8C-1, Rule 606(b) (2015) (emphasis supplied).

Extraneous information is defined as

Information dealing with the defendant or the case which

is being tried, which information reaches a juror without

being introduced into evidence. It does not include

information which a juror has gained in his experience

which does not deal with the defendant or the case being

tried.

State v. Rosier, 322 N.C. 826, 832, 370 S.E.2d 359, 363 (1988). “When there is

substantial reason to fear that the jury has become aware of improper and

prejudicial matters, the trial court must question the jury as to whether such

exposure has occurred and, if so, whether the exposure was prejudicial.” State v.

Black, 328 N.C. 191, 196, 400 S.E.2d 398, 401 (1991).

In ruling on LAT Battleground’s motion for a new trial, the court relied solely

on the affidavit of Patrick Kane, Esq., the attorney for LAT Battleground who spoke

with Jurors Number Five and Six after the trial. Mr. Kane’s affidavit states that he

spoke with the two jurors, and learned that the jury had heard from Juror Number

Six that the cost of the noise barrier walls was “millions of dollars.” Juror Number

Six told Mr. Kane that his work involves designing roadways, and he has extensive

experience in condemnation of properties for roadway construction, and had

consulted on projects involving NCDOT in the past.

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The trial court found that the statement made by Juror Number Six that the

sound walls “cost millions of dollars” was general, vague, and related to a tangential

matter. The court determined that the juror’s statement was not “extraneous

information,” and declined to conduct an evidentiary hearing. The court noted LAT

Battleground learned of Juror Number Six’s statement to the jury on the same day

as the verdict, but failed to take any steps to address the issue for over a month.

Our courts have distinguished between “external” influences on jurors, which

may be used to attack a verdict, and “internal” influences on a verdict. See State v.

Quesinberry, 325 N.C. 125, 133-35, 381 S.E.2d 681, 687 (1989), cert. granted and

judgment vacated in light of McKoy, 494 U.S. 1022, 108 L.Ed.2d 603 (1990), death

sentence vacated and remanded for new sentencing, 328 N.C. 288, 401 S.E.2d 632

(1991) (holding juror consideration of the possibility of the defendant’s parole was

an “internal influence,” “general information,” and a “belief” or “impression,” and

did not constitute grounds to award a new trial).

Jurors do not leave their general opinions, knowledge, and life experiences at

the door of the courthouse. Evidence was presented to show construction of noise

barrier walls in front of Landmark was planned and included as part of the highway

project. Evidence was also presented to show the size, scale, length, and heights of

the noise barrier walls. The trial court could fairly conclude most jurors would

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generally understand that substantial costs are incurred in erecting the immense

concrete highway noise barrier walls.

Juror Number Six’s statement constituted tangential and non-specific

“general information.” LAT Battleground did not show a “substantial reason to fear

that the jury ha[d] become aware of improper and prejudicial matters” during

deliberations, to rise to an abuse of discretion to deny an evidentiary hearing. Black,

328 N.C. at 196, 400 S.E.2d at 401. The statement of Juror Number Six during

deliberations was not prejudicial “extraneous information” to warrant a new trial

under Rule 606(b). This argument is overruled.

V. Special Jury Instruction

LAT Battleground argues the trial court erred by giving the jury an

inapplicable special instruction. We disagree.

A. Standard of Review

This Court reviews a jury instruction to determine if an error occurred and, if

so, whether “such error was likely, in light of the entire charge, to mislead the jury.”

Boykin v. Kim, 174 N.C. App. 278, 286, 620 S.E.2d 707, 713 (2005) (citation

omitted).

B. Analysis

Defendants introduced an animation and testimony to show the wetland area

owned by the City of Greensboro across the street from Landmark was a “feature”

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that added value to their property. The land across the street was not owned by

Defendants, belonged to the City of Greensboro, and was not part of the

condemnation at issue. The City’s property consisted of undeveloped woodlands

and wetland. LAT Battleground argues the law requires “that view from the

property be considered in the ‘after’ valuation.”

LAT Battleground asserts reversible error from the following jury

instruction:

Fair market value should not include the diminution in

value of the remainder of the property caused by the

acquisition and use of the adjoining lands of others for the

same undertaking.

NCDOT acquired only a portion of LAT Battleground’s tract of property. Our

Supreme Court has explained:

If only a portion of a single tract is taken, the owner’s

compensation for that taken includes any element of

value arising out of the relation of the part taken to the

entire tract. United States v. Miller, 317 U.S. 369, 87 L.

Ed. 336, 63 S. Ct. 276. “The rule supported by better

reason and the weight of authority is that the just

compensation assured by the 5th Amendment to an owner

a part of whose land is taken for public use, does not

include the diminution in value of the remainder, caused

by the acquisition and use of adjoining lands of others for

the same undertaking.” Campbell v. United States, 266

U.S. 368, 69 L. Ed. 328, 45 S. Ct. 115.

Carolina Power & Light Co. v. Creasman, 262 N.C. 390, 401, 137 S.E.2d 497, 505

(1964). The Court further stated:

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No additional compensation may be awarded to him by

reason of proper public use of other lands located in

proximity to but not part of the lands taken from the

particular owner. The theory behind this denial of

recovery is undoubtedly that such owner may not be

considered as suffering legal damage over and above that

suffered by his neighbors whose lands were not taken.

Id. at 402-03, 137 S.E.2d at 506.

LAT Battleground relies heavily on this Court’s decision in Bd. of Transp. v.

Brown, 34 N.C. App. 266, 237 S.E.2d 854 (1977), aff’d per curiam, 296 N.C. 250, 249

S.E.2d 803 (1978). In Brown, an eight-acre portion of the landowners’ 52.2 acre tract

was taken for construction of a “controlled access highway facility.” Id. at 267, 249

S.E.2d at 855. The trial court excluded all evidence of the effect of traffic noise from

the highway on the landowners’ remaining property, and instructed the jury not to

consider such effect. Id.

This Court held the exclusion of the effect of noise on the remaining property

was error, and stated:

Noise or any other element of damages to the remaining

lands is compensable only if it is demonstrably resultant

from the use of the particular lands taken. “If only a

portion of a single tract is taken the owner’s compensation

for that taking includes any element of value arising out of

the relation of the part taken to the entire tract.”

(Emphasis added) United States v. Miller, 317 U.S. 369,

376, 63 S.Ct. 276, 281, 87 L.Ed. 336, 344 (1943).

Id. at 269, 249 S.E.2d at 856 (added emphasis in original). This language in Brown

pertains to circumstances in which the physical taking is of a portion of a parcel,

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and the remaining portion of property not taken is damaged thereby, also referred

to as damage to the “remainder.” Id. Here, LAT Battleground argues its residual or

remaining property not physically taken was damaged by actions of NCDOT on the

City of Greensboro’s property across the street.

LAT Battleground argues the trial court’s instruction was error, because the

destruction of the “view” from Landmark of the City of Greensboro’s wetlands

across the street should be included in just compensation. LAT Battleground

conceded at oral argument that Landmark would not be entitled to just

compensation if the City of Greensboro had damaged the “view” from Landmark by

removing all of the trees on the wetlands across the street, by building a concrete

wall there, or making other affirmative use of the City’s property. As noted above,

the undeveloped 2.193 acres portion taken from Landmark’s 32.76 acres parcel was

primarily used to relocate the existing two lane Drawbridge Parkway closer to the

improved portions of Landmark’s remaining parcel. A portion of the removed

wooded buffer apparently was also located on the existing right of way for

Drawbridge Parkway, and not on Landmark’s property.

The special jury instruction provided was a clear and correct statement of

law. LAT Battleground has failed to show the instruction was likely to either

mislead the jury or was prejudicial error. This argument is overruled.

VI. Conclusion

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The trial court did not abuse its discretion in limiting Mr. Collins’ testimony

and evidence of “fair market value” of the property before and after the taking due

to the restrictions set forth in N.C. Gen. Stat. § 93A-83. LAT Battleground has

failed to show the trial court abused its discretion by excluding the sound

demonstration prepared by Dr. Stewart, LAT Battleground’s acoustical expert.

The trial court did not err in denying LAT Battleground’s motion for a new

trial based upon juror misconduct. LAT Battleground has failed to show the trial

court’s jury instruction, that other owners’ properties taken did not impact LAT

Battleground’s property, included a misstatement of law or was likely to mislead

the jury. We also reject LAT Battleground’s final contention that “cumulative

errors” warrant a new trial.

NO ERROR.

Judges BRYANT and INMAN concur.

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