Opinion
No. COA09-37.
Filed January 19, 2010.
Pasquotank County No. 00 CvS 641.
Appeal by defendants from judgment entered 15 July 2008 by Judge Alma L. Hinton in Pasquotank County Superior Court. Heard in the Court of Appeals 19 August 2009.
Hornthal, Riley, Ellis Maland, L.L.P., by Benjamin M. Gallop and John D. Leidy, for plaintiff-appellee. Mary F. Jackson-Heard and Barbara B. Seaforth, pro se defendant-appellants.
Mary F. Jackson-Heard and Barbara B. Seaforth appeal from the Order Directing Verdict and Final Judgment entered by the trial court on 15 July 2008 permanently vesting in the Joint Redevelopment Commission of Pasquotank County and the City of Elizabeth City, North Carolina, title to a tract of real property located in Elizabeth City Township, Pasquotank County, North Carolina; ordering that the amount deposited by the Plaintiff which was still held by the Clerk of Superior Court of Pasquotank County be paid to Defendants in equal shares; and taxing the costs to Plaintiff. After a careful review of the record in light of the applicable law, we affirm the trial court's judgment.
On 11 September 2000, Plaintiff filed a Complaint, Declaration of Taking, and Notice of Deposit in which Plaintiff sought to acquire by condemnation a 4,012 square foot tract of real property owned by Defendants located at 803 Anderson Street in Elizabeth City Township, Pasquotank County, North Carolina. Plaintiff estimated that the property to be taken had a fair market value of $700.00 and deposited that amount with the office of the Clerk of Superior Court of Pasquotank County. On 16 October 2000, Defendants filed an Answer in which they admitted ownership of the property that Plaintiff sought to condemn and denied "that the sum of $700.00 is just compensation for the taking of the property."
Plaintiff is a joint county-city redevelopment commission created in 1995 pursuant to Article 22 of Chapter 160A of the North Carolina General Statutes. Pasquotank County and Elizabeth City created Plaintiff for the purpose of redeveloping blighted areas using the authority granted pursuant to N.C. Gen. Stat. § 160A-500 et seq. Among other powers, Plaintiff has eminent domain authority pursuant to Chapter 40A of the North Carolina General Statutes.
The property in question was apparently situated just outside the corporate limits of Elizabeth City.
On 18 December 2000, Plaintiff filed a Motion For Appointment of Commissioners seeking the appointment of three commissioners "to go upon the property, appraise the damages resulting from the taking, and report the same to the Court" pursuant to N.C. Gen. Stat. § 40A-48. On 9 January 2001, the Clerk of Superior Court of Pasquotank County appointed three individuals to "ascertain and determine the compensation which ought justly to be paid by the plaintiff to the defendants by reason of the condemnation." On 31 January 2001, the Commissioners filed a report in which they indicated that "the fair market value of the property taken and compensation due the owners [was] the sum of $1[,]000.00." On 1 February 2001, Defendants filed Exceptions To Report of Commissioners in which they alleged that "[t]he Commissioners failed to award the defendants fair and adequate compensation for the property taken from the defendants" and "failed to take into consideration the Housing and Community Development Act of 1978 on one to one replacement of housing."
A discovery scheduling conference was held before the Honorable Dwight L. Cranford, Judge of the Superior Court, on 21 July 2003. At that time, Defendants indicated that they were unable to communicate with their attorney and requested additional time to obtain replacement counsel. Judge Cranford entered a discovery scheduling order on 3 September 2003 which provided that all written discovery would be commenced by 15 January 2004 and that all depositions would be complete by 15 February 2004.
After unsuccessfully seeking to obtain another attorney, Defendants began representing themselves at some unspecified time in 2003. The record on appeal and supplement to the record on appeal does not contain an order allowing Defendants' counsel to withdraw.
Defendants served interrogatories upon Plaintiff on 28 January 2004. Plaintiffs answered Defendants' interrogatories despite the fact that they were not served in a timely manner. On 20 July 2004, Defendants filed a Motion to Compel seeking the entry of an order compelling the production of certain documents. On or about 7 September 2004, the Honorable Milton F. Fitch, Jr., Judge of the Superior Court, denied Defendants' Motion To Compel. Although the parties apparently discussed conducting certain depositions, Defendants cancelled those depositions before they were ever scheduled.
On 19 November 2004, Defendants, acting pro se and without seeking or obtaining leave of court, filed a Counterclaim in which they alleged that Plaintiff, Pasquotank County, Elizabeth City, the Board of Commissioners of Pasquotank County, and the City Council of Elizabeth City had violated Defendants' rights under the Fifth and Fourteenth Amendments of the United States Constitution and the Civil Rights Act of 1866 by taking a number of steps to cause Defendants' property, which was located in "an all Black community," to lose its economic value and that Defendants were "entitled to compensation for the real property of at least $70,000 and for the loss in rental income of at least $50,000." On 23 December 2004, Plaintiff filed a Motion To Strike seeking the entry of an order "striking the purported counterclaim filed by the Defendants in this matter" based upon their failure to comply with N.C. Gen. Stat. § 1A-1, Rule 13(f). On 9 February 2005, the Honorable J. Richard Parker, Judge of the Superior Court, entered an Order Striking Counterclaim in which Judge Parker struck the Counterclaim filed by Defendants on 19 November 2004 because of their failure to comply with N.C. Gen. Stat. § 1A-1, Rules 13(f) and 15(a), and because "[a]llowing the Defendants' counterclaim setting forth for the first time allegations that Plaintiff, and other nonparties, have discriminated against the Defendants will unduly prejudice the Plaintiff by requiring Plaintiff to defend a claim in addition to the claim now pending, will require that the Plaintiff expend additional resources to defend against the Defendants' new allegations and will delay the trial of this matter." Defendants noted an appeal from Judge Parker's order to this Court. In an opinion filed on 21 February 2006, this Court dismissed Defendants' appeal as interlocutory and noted "that the trial court did not abuse its discretion in striking the counterclaim, in light of defendants' non-compliance with N.C. Gen. Stat. § 1A-1, Rule 15(a), and the court's uncontested findings of prejudice arising from their four-year delay in asserting the counterclaim." Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2006 N.C. App. LEXIS 407 (No. COA05-676) (2006).
In addition, Pasquotank County moved to dismiss Defendant's Counterclaim for lack of personal and subject matter jurisdiction and for failure to state a claim for which relief could be granted pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(1), 12(b)(2), and 12(b)(6). On 13 April 2005, Judge Parker entered an order dismissing Defendants' counterclaim for lack of subject matter and personal jurisdiction, for failure to state a claim for which relief could be granted, and for non-compliance with N.C. Gen. Stat. § 1A-1, Rule 13(f). Defendants noted an appeal to this Court from Judge Parker's 13 April 2005 order. On 18 April 2006, this Court filed an opinion dismissing Defendants' appeal as interlocutory. Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2006 N.C. App. LEXIS 846 (No. COA05-1146) (2006).
This matter proceeded toward trial while Defendants' appeals were pending before this Court. Judge Parker entered an Order On Final Pre-Trial Conference on 16 May 2005. After this case was calendared as the second case for trial at the 5 December 2005 session of the Superior Court to be held in Pasquotank County, Defendants sought a continuance on the grounds that Judge Parker's 9 February 2005 and 13 April 2005 orders were on appeal and that one of Defendants had a personal scheduling conflict with the trial date. At the 5 December 2005 session, Defendants' motion to continue the case until the 17 January 2006 session was granted. At the 17 January 2006 session, the Honorable W. Russell Duke, Jr., granted Defendants' request that the case be continued predicated on the possibility that a decision by this Court concerning the pending appeals might affect the outcome of the trial.
On 19 May 2006, Defendants filed a Motion To Hear and To Determine All Issues, in which they requested the Court to "hear and determine `any and all issues raised by the pleadings other than the issue of compensation,'" including, but not limited to, issues such as the validity of Plaintiff's redevelopment plan, "[w]hether racial discrimination is a factor in this case," "[w]hether Defendants' rights under the 5th and 14th amendments of the United States Constitution have been violated," "[w]hether Defendants' rights under the 1866 Civil Rights Act have been violated," "[w]hether the appraisal used by [Plaintiff] in its condemnation complaint is defective," "[w]hether conspiracy and fraud are factors in the case," and "[w]hether the area taken is correct." On the same date, Defendants filed a Motion To Amend Answer And To File Counterclaim in which they sought to assert claims against Plaintiff, Pasquotank County, and Elizabeth City for "inverse condemnation, racial discrimination, and conspiracy and fraud to take property." On 15 June 2006, Plaintiff filed a Motion For Sanctions Under Rule 11 seeking the entry of an order imposing sanctions upon Defendants for filing the Motion To Amend Answer And To File A Counterclaim.
Defendants contended in this document that discovery had been ordered on 3 September 2003 and that they had filed their initial counterclaim on 19 November 2004 "after gaining more knowledge of condemnation law and obtaining some information from Plaintiff through discovery."
On 9 July 2007, the Honorable Clifton W. Everett, Jr., Judge of the Superior Court, entered an Order Denying Motion To Amend Answer And To File Counterclaim, Denying Defendants' Motion To Determine Other Issues And Granting Plaintiff's Motion For Sanctions, in which Judge Everett found that Defendants' "motion to amend their answer and to file a counterclaim . . . is the same or similar to the previous counterclaim stricken by Judge J. Richard Parker" on 18 January 2005 and "was filed for an improper purpose;" that "to allow the defendants' counterclaim setting forth for the first time allegations that plaintiff, and other nonparties, have discriminated against the defendants would unduly prejudice the plaintiff by requiring the plaintiff to defend a claim in addition to the claim now pending, would require that the plaintiff expend additional resources to defend against the defendants['] new allegations and would delay the trial of this matter;" that "[t]he issues or allegations the defendants seek to add to their answer and counterclaim are not relevant to the determination of just compensation for the taking of real property;" and that "[t]he issues raised by the defendants in their motion to determine issues pursuant to N.C. Gen. Stat. [§] 40A-47 are the same issues or allegations the defendants seek to include in their answer and counterclaim and are not relevant to the determination of just compensation in the taking of real property." As a result, Judge Everett denied Defendants' Motion To Hear And Determine All Issues and Motion To Amend Answer And To File A Counterclaim; granted Plaintiff's Motion For Sanctions Under Rule 11; awarded Plaintiff $638.00 in attorneys' fees; and ordered the Clerk of Superior Court of Pasquotank County "to remit to the plaintiff the amount of $638.00[,] which amount shall be deducted from the $700.00 held by the Pasquotank County Clerk of Court as plaintiff's deposit for the taking of the defendants' property." Defendants noted an appeal to this Court from Judge Everett's order. On 1 April 2008, this Court filed an opinion affirming that portion of Judge Everett's order denying Defendants' Motion To Hear And Determine All Issues on the grounds that, while orders issued pursuant to N.C. Gen. Stat. § 40A-47 are immediately appealable, "defendants have failed to show that they properly raised or that the trial court failed to properly consider the issues raised in the pleadings pursuant to N.C. Gen. Stat. § 40A-47." Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2008 N.C. App. LEXIS 632 (No. COA07-1167) (2008).
Defendants did not attempt to appeal Judge Everett's denial of their amendment motion or his decision to impose sanctions upon them pursuant to N.C. Gen. Stat. § 1A-1, Rule 11.
This case came on for trial before the trial court and a jury at the 7 July 2008 session of the Superior Court held in Pasquotank County. At the close of Defendants' evidence, Plaintiff moved for a directed verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50(a). After hearing the arguments of counsel for Plaintiff and the arguments of Defendants, the trial court granted Plaintiff's motion and entered judgment providing that:
1. The Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina, Plaintiff herein, on the 11th Day of September, 2000, by the filing of Complaint, Declaration of Taking and Notice of Deposit has condemned and as of the 15th day of November, 2000, shall permanently be vested with the property, interest, or estate described above.
2. The amount deposited by Plaintiff which is still being held by Pasquotank County Clerk of Superior Court shall be disbursed by said Clerk to each of the Defendants in equal shares.
3. A copy of this order Directing Verdict and Final Judgment shall be certified under seal of the Court to the Register of Deeds of Pasquotank County and the Register of Deeds shall record this Order Directing Verdict and Final Judgment among the land records of Pasquotank County.
4. The Joint Redevelopment Commission of Pasquotank County and the City of Elizabeth City, North Carolina, Plaintiff herein, shall bear the costs of this action.
Defendants noted an appeal from the trial court's judgment to this Court.
Motion For Sanctions
As an initial matter, Plaintiff has requested that this Court either dismiss Defendants' appeal or impose a monetary sanction on Defendants as a result of numerous alleged violations of the North Carolina Rules of Appellate Procedure. Although Defendants have committed numerous violations of the North Carolina Rules of Appellate Procedure, "we dismiss appeals `only in the most egregious instances of non-jurisdictional default.'" Carolina Forest Association, Inc. v. White, ___ N.C. App. ___, ___, 678 S.E.2d 725, 729 (2009) (quoting Dogwood Dev. Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 200, 657 S.E.2d 361, 366 (2008). As a result, while Defendants have committed numerous violations of the North Carolina Rules of Appellate Procedure, we have been able, in most instances, to determine the nature of the argument that they seek to advance on appeal and believe that "the fundamental principle of Dogwood, to `promote public confidence in the administration of justice in our appellate courts,' does not necessitate dismissal in the instant case." Carolina Forest, ___ N.C. App. at ___, 678 S.E.2d at 729. In addition, although the issue of whether to impose monetary sanctions upon Defendants is a much closer call, we do not believe, in the exercise of our discretion, that such a sanction is appropriate in this instance. As a result, we conclude that Plaintiff's sanctions motion should be denied.
At an absolute minimum, Defendants have failed to include an accurate table of authorities as required by N.C.R. App. P. 28(b)(1); failed to include citations to the record on appeal, transcript, and exhibits in the statement of facts as required by N.C.R. App. P. 28(b)(6); provide a concise statement of the applicable standard of review with respect to each question presented as required by N.C.R. App. P. 28(b)(6); include proper citations to the record on appeal, transcript, and exhibits relating to facts discussed in the argumentative sections of their brief as required by N.C.R. App. P. 28(b)(6); and violated the formatting requirements of Appendices B. and D. In addition, Plaintiff contends that Defendants' "appeal is not well grounded in fact or warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law" in violation of N.C.R. App. P. 34(a)(1) and that Defendants have based their argument "on facts, exhibits and evidence not contained in or in [any way] supported by the record on appeal, the transcript(s) and the supplement to the record on appeal" in violation of N.C.R. App. P. 9(a).
Legal Analysis Directed Verdict
First, Defendants argue that the trial court erred by granting Plaintiff's motion for a directed verdict pursuant to N.C. Gen. Stat. § 1A-50. After careful consideration of Defendants' arguments, we conclude that the trial court did not err by directing a verdict in Plaintiff's favor.
The North Carolina Rules of Civil Procedure apply in condemnation actions, "at least to the extent that those rules do not directly conflict with procedures specifically mandated by Chapter 40A." Virginia Electric and Power Co. v. Tillett, 316 N.C. 73, 77-78, 340 S.E.2d 62, 65 cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986). In the event that the evidence adduced by the property owner failed to support a verdict in his or her favor, this Court has affirmed a trial court's decision to grant a directed verdict in favor of the condemnor. Duke Power Co. v. Ribet. 25 N.C. App. 87, 89, 212 S.E.2d 182, 184 (1975) (stating that, where the respondent "failed to allege or offer evidence of facts justifying judicial review of the exercise of the petitioner's discretion in choosing the route" for a proposed transmission line and "failed to allege or offer evidence of damages which would justify submitting an issue thereon to the jury," "[t]he directed verdict and judgment entered thereon" was affirmed). As a result, the trial court had the authority to grant a directed verdict in favor of Plaintiff.
"The question presented by a motion for a directed verdict is whether the evidence is sufficient to entitle the non-movant to have a jury decide the issue in question." United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988). In ruling upon a motion for directed verdict, "all [of] the evidence which tends to support [non-movant's] case must be taken as true and considered in the light most favorable to [non-movant][,]" and "[non-movant] is entitled to the benefit of every reasonable inference which may legitimately be drawn from the evidence." Mann v. Virginia Dare Transportation Co., Inc., 283 N.C. 734, 746, 198 S.E.2d 558, 566 (1973). As a result, "[t]he motion may be granted only if the evidence is insufficient to justify a verdict for the non-movant as a matter of law." Arnold v. Sharpe, 296 N.C. 533, 537, 251 S.E.2d 452, 455 (1979).
Given the prior orders of Judges Parker and Everett and this Court's decision in Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2008 N.C. App. LEXIS 632 (No. COA07-1167) (2008), the only issue before the trial court was that of just compensation. "The measure of damages or just compensation to be paid to the landowner is the difference in the fair market value of the land immediately before the taking and the fair market value immediately after the taking[.]" Ribet, 25 N.C. App. at 89, 212 S.E.2d at 183. "`The fair market value of a property may be defined as the price which a willing buyer would pay to purchase the asset on the open market from a willing seller, with neither party being under any compulsion to complete the transaction.'" City of Wilson Redevelopment Commission v. Boykin, ___ N.C. App. ___, ___, 667 S.E.2d 282, 287 (2008) (quoting City of Charlotte v. Hurlahe, 178 N.C. App. 144, 147, 631 S.E.2d 28, 30 (2006) (internal quotation omitted)). Thus, the ultimate issue raised by Plaintiff's directed verdict motion was whether Defendants presented evidence tending to show the fair market value of the property taken by Plaintiff.
"Unless it affirmatively appears that the owner does not know the market value of his property, it is generally held that he is competent to testify as to its value even though his knowledge on the subject would not qualify him as a witness were he not the owner." North Carolina State Highway Commission v. Helderman, 285 N.C. 645, 652, 207 S.E.2d 720, 725 (1974). Although Defendant Jackson-Heard testified that she "strongly believe[d] the property was worth at least [$]40,000," she admitted on cross-examination that this figure represented what she and her "sister want as of the date of taking" and admitted that she did not "know what a willing buyer would have paid for [her] property on the date of taking." As a result, the record contains no competent evidence tending to show the price that a willing buyer would have paid a willing seller for Defendants' property.
Defendants challenge the trial court's ruling on the grounds that the amount of the deposit was never admitted into evidence, that Defendants had challenged the appraisal on which the deposit was based as faulty by means of a motion in limine, that the trial "court placed undue reliance on Plaintiff's attorney for proper court procedure during the trial," that "[k]ey evidence of Defendants was disallowed by the court on the grounds that it was hearsay," and that "the court's ruling failed to give a final ruling on the sanction of the Defendants in the amount of $638 that was to be taken from the deposit." After carefully examining the arguments advanced in Defendants' brief, we do not believe that any of these arguments justify reversing the trial court's decision to grant Plaintiff's motion for a directed verdict.
N.C. Gen. Stat. § 40A-48(d) specifically precludes the admission of "evidence of the deposit by the condemnor into the court[.]" For that reason, had any effort been made to introduce the amount of Plaintiff's deposit, the trial court would have been required to sustain an objection lodged against the admission of that evidence. Furthermore, to the extent that the trial court erred by awarding Defendants compensation based on the amount of Plaintiff's original deposit in its judgment, any such error was not prejudicial to Defendants given the total absence of any evidence in the record tending to show that the property taken by Plaintiff had a higher value. Thus, the first argument advanced in opposition to the trial court's decision to grant Plaintiff's directed verdict motion lacks merit.
The fact that Defendants unsuccessfully challenged the admission of the appraisal upon which the deposit amount was based by means of a pretrial motion in limine does not provide any basis for overturning the trial court's ruling either. A careful review of the trial transcript reveals that, although the trial court denied Defendants' pretrial motion in limine directed toward the appraisal in question, that appraisal was never introduced into evidence. Having never become part of the evidentiary record, the disputed appraisal could not have affected the trial court's decision with respect to Plaintiff's directed verdict motion. In addition, as we have already noted, to the extent that the trial court erred by awarding Defendants the remaining amount of the deposit in its final judgment, any such error did not prejudice Defendants given the absence of any evidence tending to show the appropriateness of a higher valuation for the property. Thus, the trial court's handling of the issues relating to the appraisal used to support the deposit amount provide no basis for upsetting its decision to grant a directed verdict in Plaintiff's favor.
Defendants further argue that the trial court's decision to direct a verdict in Plaintiff's favor was tainted by the fact that it excluded evidence of "property sales recorded in the deeds office located in the Pasquotank County Courthouse." In essence, Defendants contend that the trial court erroneously excluded the evidence in question on hearsay grounds since "[p]roperty records are hearsay exceptions under Rule 803." The trial transcript does not, however, reflect that Defendants made an offer of proof or otherwise tendered the excluded documents for the record. In the absence of such an offer of proof, we are unable to determine whether the evidence that Defendants sought to present to the trial court would have been admissible. State v. Ginyard, 122 N.C. App. 25, 33, 468 S.E.2d 525, 531 (1996) (stating that, "[i]n order to preserve an argument on appeal which relates to the exclusion of evidence," the litigant "must make an offer of proof so that the substance and significance of the excluded evidence is in the record"). Since we have no way of knowing what, if anything, the documents in question would have established, Defendants have failed to demonstrate that the exclusion of these documents, even if erroneous, would have undermined the validity of the trial court's decision to direct a verdict in Plaintiff's favor.
Furthermore, Defendants argue that the trial court "failed to give a final ruling on the sanction of the Defendants in the amount of $638 that was to be taken from the deposit." We do not believe that this argument provides any basis for overturning the trial court's decision to direct a verdict in favor of Plaintiff for a number of reasons. First, the 9 July 2007 order entered by Judge Everett imposing sanctions on Defendants fully adjudicated the issue and left nothing for the trial court to address. In the
absence of a request from Defendants, which was not forthcoming, the trial court had no obligation to take any further action with respect to the sanctions issue. N.C.R. App. P. 10(a)(1) (stating that, "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion[.]"). Secondly, since Defendants have not advanced any argument or cited any authority in support of their position that the trial court's failure to take any further action with respect to the sanctions issue somehow precluded the trial court from directing a verdict in favor of Plaintiff, we conclude that Defendants' argument in reliance upon the trial court's failure to revisit the sanctions issue lacks merit for this reason as well. Thus, the fact that the trial court did not revisit the sanctions issue addressed in Judge Everett's 9 July 2007 order provides no basis for overturning the trial court's decision to direct a verdict in favor of Plaintiff.
Finally, after a careful review of the trial transcript, we see no indication that the trial court placed any undue reliance on Plaintiff's trial counsel during the trial of this matter. Instead, the trial transcript reflects that the trial court made every reasonable effort to provide Defendants with an opportunity to be heard and took appropriate action to protect Defendants' procedural rights throughout the course of the trial proceedings. As a result, we find no record support whatsoever for Defendants' contention that the trial court placed undue reliance on Plaintiff's trial counsel during the proceedings in the court below.
Thus, for all of these reasons, we conclude that the trial court did not err by granting Plaintiff's directed verdict motion. As a result, Defendants' assignments of error directed toward this issue are overruled.
Denial of Motion to Amend
Secondly, Defendant contends that Judge Everett erred in denying their motion to amend various counterclaims and in imposing sanctions upon them. After carefully considering the arguments advanced in Defendants' brief, we are unable to find any error in the trial courts' rulings on these issues.
The third issue addressed in Judge Everett's 9 July 2007 order was Defendants' Motion To Hear And Determine All Issues. Judge Everett's decision to deny that motion was affirmed by this Court in Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2008 N.C. App. LEXIS 632 (No. COA07-1167) (2008). In view of the fact that this Court has already addressed and resolved the issues relating to Judge Everett's decision to deny Defendants' Motion To Hear And Determine All Issues, we will not revisit that subject even though a portion of Defendants' brief could be construed as an invitation to do so.
Motion to Amend
"It is a fundamental concept of [N.C. Gen. Stat. § 1A-1, Rules 15(a) and (b)] that amendments to pleadings should be liberally allowed." Goodrich v. Rice, 75 N.C. App. 530, 533, 331 S.E.2d 195, 198 (1985). However, "[w]hile leave of court `shall be freely given when justice so requires,'" "judicial discretion may properly be exercised to subordinate these concerns to readily discernible countervailing legislative intent." Jones v. Boyce, 60 N.C. App. 585, 587, 299 S.E.2d 298, 300 (1983) (quoting N.C. Gen. Stat. § 1A-1, Rule 15(a)). Among the "proper reasons for denying a motion to amend [are] undue delay by the moving party and unfair prejudice to the nonmoving party." Delta Environmental Consultants of North Carolina, Inc. v. Wysong Miles Co., 132 N.C. App. 160, 166, 510 S.E.2d 690, 694, disc. rev. denied and dismissed by 350 N.C. 379, 536 S.E.2d 70-71 (1999); see also Wall v. Fry, 162 N.C. App. 73, 80, 590 S.E.2d 283, 287 (2004) (holding that the trial court did not abuse its discretion by denying "plaintiffs leave to amend their complaint" where "plaintiffs filed their complaint 21 February 2001 and did not move to amend their complaint until 17 April 2002"). "The granting or denial of a motion to amend is within the sound discretion of the trial judge, whose decision is reviewed under an abuse of discretion standard." House Healers Restorations, Inc. v. Ball, 112 N.C. App. 783, 785-86, 437 S.E.2d 383, 385 (1993) (citing News Observer Publishing Co. v. Poole, 330 N.C. 465, 485, 412 S.E.2d 7, 19 (1992)). As a result, the ultimate issue raised by this portion of Defendants' challenge to the trial court's judgment is whether Judge Everett abused his discretion in denying Defendants' amendment motion.
Among the grounds upon which Judge Everett denied Defendants' motion to amend was that Defendants' motion was similar to the Counterclaim that Judge Parker had previously stricken and that allowing Defendants' request to amend their complaint to assert certain counterclaims against Plaintiff and other parties at this late date would prejudice Plaintiff in a number of ways, including further delaying the "trial of this matter." In essence, one of the reasons that Judge Everett denied Defendants' amendment motion was his determination that Defendants were guilty of undue delay. On appeal, Defendants contend that Judge Everett erred because the community in which their property is situated "was never certified a blighted area;" that "[t]he condemnation of the community was dependent on the county and the city obtaining a community development block grant;" that "Defendants were never informed by the city or the county that their property or the community was blighted;" that the effect of Judge Everett's order was to bind Defendants "to errors of omission made by their attorney," who "became unable to represent them for health reasons;" that "Defendants are being denied the right to use information that is beneficial to them obtained through discovery;" that, "[d]uring racial segregation[,] the streets were not paved while streets adjacent to the community were paved," one of which had only white residents; that "the community continued to experience systemic racism;" and that, "[e]xcept for running water, nothing was done to help the community." Although the gist of Defendants' argument is not entirely clear, it appears that they contend that they should have been allowed to amend their answer in order to assert various counterclaims based on assertions that the community in which the property is located had been denied essential services due to racial discrimination and that this history of discrimination should be taken into account in determining the value of the property. In essence, except for a brief reference to the difficulties that they experienced by virtue of their original attorney's health problems, Defendants have challenged Judge Everett's denial of their amendment motion by advancing an argument on the merits. Except for this reference to their attorney's health problems, Defendants have provided no explanation for their failure to seek leave of court to amend their complaint before 19 May 2006 despite their implicit admission that they knew of the factual basis underlying the claims advanced in their amendment motion by no later than 19 November 2004, when they filed their Counterclaim without seeking leave of court to do so. In the absence of any viable explanation for Defendants' failure to assert their counterclaims in a timely manner, we cannot hold that Judge Everett abused his discretion by denying Defendants' amendment motion on the grounds of undue delay. Thus, we find no error in Judge Everett's decision to deny Defendants' amendment motion.
Although Judge Everett stated in his 9 July 2007 order and Plaintiff states in its brief that this Court affirmed Judge Parker's decision to strike Defendants' Counterclaim, this Court actually dismissed Defendants' appeal from Judge Parker's 9 February 2005 and 13 April 2005 orders as interlocutory. Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2006 N.C. App. LEXIS 407 (No. COA05-676) (2006); Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2006 N.C. App. LEXIS 846 (No. COA05-1146) (2006). As we have noted, however, the Court did state in the first of these two decisions that "the trial court did not abuse its discretion in striking the counterclaim, in light of defendant's non-compliance with N.C. Gen. Stat. § 1A-1, Rule 15(a), and the court's uncontested findings of prejudice arising from their four-year delay in asserting the counterclaim."
By 19 November 2004, Defendants had been representing themselves for well over a year, so that any difficulties resulting from the illness of their original attorney should have been addressed by that point.
Sanctions Motion
According to N.C. Gen. Stat. § 1A-1, Rule 11(a):
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
N.C. Gen. Stat. § 1A-1, Rule 11(a). Based upon his conclusion that Defendants' Motion To Amend Answer And To File A Counterclaim "was filed for an improper purpose," Judge Everett sanctioned Defendants by requiring Defendants to pay $638.00 in attorneys' fees, which represented the costs that Plaintiff incurred in defending against Defendants' request to amend its answer to assert various counterclaims against Plaintiff and others. In challenging Judge Everett's decision to impose sanctions upon them for filing the amendment motion, Defendants argue that they "were acting in good faith in presenting their motions for amendment and counterclaim" and that the "sanction by the court was unduly punitive."
"The trial court's decision to impose or not to impose mandatory sanctions under [N.C. Gen. Stat. § 1A-1, Rule 11] is subject to de novo review." Lowry v. Lowry, 99 N.C. App. 246, 255, 393 S.E.2d 141, 146 (1990) (citing Turner v. Duke University, 325 N.C. 152, 165, 381 S.E.2d 706, 714 (1989)).
In the de novo review, the appellate court will determine (1) whether the trial court's conclusions of law support its judgment or determination, (2) whether the trial court's conclusions of law are supported by its findings of fact, and (3) whether the findings of fact are supported by a sufficiency of the evidence.
Turner, 325 N.C. at 165, 381 S.E.2d at 714. "[T]he proper standard for reviewing the appropriateness of the sanction imposed in a given case is whether the trial court has abused its discretion," which is a standard that "is intended to give great leeway to the trial court." Central Carolina Nissan, Inc. v. Sturgis, 98 N.C. App. 253, 264, 390 S.E.2d 730, 737 (1990).
A careful review of Judge Everett's order indicates that he found as a fact, among other things, that Defendants filed their amendment motion "approximately five and one-half years from the date of filing their answer" and eighteen months after filing an almost identical motion that had been stricken by Judge Parker and that the effect of allowing Defendants' motion would be to "require the reopening of discovery in order to allow the plaintiff, the County of Pasquotank, and the City of Elizabeth City the opportunity to determine any affirmative defenses each may have and to determine the basis for the allegations set forth in defendants' counterclaim." Defendants have not challenged these findings of fact in any way. Judge Everett's findings of fact provide more than adequate support for his conclusion that Defendants' amendment motion was filed for the improper purpose of further delaying the trial of this case. For that reason, we conclude that Judge Everett appropriately concluded that Defendants were subject to sanctions pursuant to N.C. Gen. Stat. § 1A-1, Rule 11(a). Given this Court's prior statement in Joint Redevelopment Commission of the County of Pasquotank and the City of Elizabeth City, North Carolina v. Jackson-Heard, 2006 N.C. App. LEXIS 407 (No. COA05-676) (2006), that "[Judge Parker] did not abuse [his] discretion in striking the counterclaim in light of . . . the court's uncontested findings of prejudice arising from their four-year delay in asserting the counterclaim," Judge Everett's conclusion was entirely predictable. Furthermore, given the presence of an unchallenged affidavit tending to show that Plaintiff incurred $638.00 in attorneys' fees in resisting Defendants' amendment motion in the court below, we are unable to say that Judge Everett abused his discretion in sanctioning Defendants by requiring them to pay the specified amount to Plaintiff. As a result, we conclude that Defendants' challenge to that portion of Judge Everett's order sanctioning Defendants' for filing the amendment motion is without merit.
Conclusion
Thus, for the reasons set forth above, we conclude that the judgment entered by the trial court in this case is free from prejudicial error. As a result, the trial court's judgment is affirmed.
AFFIRMED.
Judges MCGEE and JACKSON concur.
Report per Rule 30(e).