Opinion
No. COA10-588
Filed 19 April 2011 This case not for publication
Appeal by Defendant from order entered 18 February 2010 by Judge Benjamin G. Alford in Sampson County Superior Court. Heard in the Court of Appeals 17 November 2010.
Poyner Spruill LLP, by J. Nicholas Ellis, for Plaintiffs. Charles R. Brewer for Defendant.
Sampson County No. 07-CVS-357
Factual and Procedural Background
On 14 March 2007, Plaintiffs Sampson County and City of Clinton (collectively, "Plaintiffs") filed a complaint and declaration of taking in Sampson County Superior Court, seeking to condemn property owned by Defendant Parker Family Real Estate, LLC. ("Parker"). In their complaint, Plaintiffs alleged that they "jointly own, operate and control the airport facility known as the Clinton-Sampson County Airport" and that they "have determined by duly adopted resolutions that the acquisition of a perpetual avigation easement in the lands of [Parker] . . . is required to protect and promote public safety[.]"
The following excerpt from "Item V" of the complaint and declaration describes, in pertinent part, the scope of the condemnation:
The property interest which is taken for public use by this condemnation is as follows:
An easement and right-of-way appurtenant to that facility currently known as the Clinton-Sampson Airport Facility for the unobstructed use and passage of all types of aircraft . . . in and through the airspace above [Parker's] property. . . .
. . . .
This easement and right-of-way hereby grants to [Plaintiffs] the continuing right to prevent the erection or growth upon [Parker's] property of any building, structure, tree or other object, extending into the airspace above the aforesaid imaginary plane, and to remove from said airspace, or at the sole option of [Plaintiffs], as an alternative, to make and light as obstructions to air navigation any such building, structure, tree or other objects now upon, or which in the future may be upon [Parker's] property, together with the right of ingress to, egress from, and passage over [Parker's] property for the above purposes.
On 23 July 2007, Parker filed an answer and motion to dismiss Plaintiffs' action. Thereafter, the parties agreed to settle the action, and the settlement agreement was memorialized in an 11 February 2009 consent judgment, which stated, inter alia, the following:
Upon the filing of this Final Consent Judgment and payment of the funds . . ., Plaintiffs shall be vested with any and all rights associated with the Avigation Easement and shall be authorized to exercise any and all such rights not inconsistent with said Avigation Easement.
On 2 April 2009, Plaintiffs filed in the action a "Motion to Enforce Final Consent Judgment." In their motion, Plaintiffs stated that they "hereby move the [c]ourt pursuant to Rule 70 of the North Carolina Rules of Civil Procedure for an Order granting the relief described[.]" Plaintiffs stated in the motion that:
A previous motion to enforce the settlement agreement was filed by Plaintiffs on 25 November 2008, but that motion is not relevant to any issues in this appeal.
2. Plaintiffs have contacted [Parker] to gain access to [Parker's] property described in an Avigation Easement to remove trees that extend into the Avigation Easement acquired by Plaintiffs pursuant to this action and the Final Consent Judgment.
3. Upon information and belief, [Parker] will only allow Plaintiffs to remove that portion of a tree that extends into the Avigation Easement and refuses to allow Plaintiffs to remove the entire tree.
4. Plaintiffs request that the [c]ourt enter an Order declaring that pursuant to the Final Consent Judgment, that Plaintiffs have the right to remove the entire tree if any portion of said tree extends into the Avigation Easement.
Plaintiffs' motion was heard by Judge W. Allen Cobb, Jr. on 18 May 2009. Judge Cobb determined that the motion should be decided by Judge Benjamin G. Alford, the judge who signed the consent judgment initially, and a new hearing was scheduled for 19 January 2010.
Following the hearing, Judge Alford granted Plaintiffs' motion in an order filed 18 February 2010. The order stated the following:
Judge Alford's order was signed 11 February 2010, nunc pro tunc 19 January 2010.
The [c]ourt finds that Plaintiffs' Motion to Enforce Final Consent Judgment should be granted.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Plaintiffs' Motion to Enforce Final Consent Judgment is granted and Plaintiffs, in exercising their rights associated with the Avigation Easement described in the Final Consent Judgment, shall have the right to remove at the ground the entire tree if any portion of said tree extends into the airspace to which the Avigation Easement applies.
Parker filed a request for reconsideration of the matter, which was denied by Judge Alford in an order entered 17 February 2010. On that same date, Parker filed its notice of appeal in the matter, seeking review of the trial court's order granting Plaintiffs' motion and the order denying Parker's request for reconsideration.
Discussion
Parker's appeal stems from Plaintiffs' 2 April 2009 motion to "enforce" the parties' consent judgment. In their motion, Plaintiffs moved "pursuant to Rule 70 of the North Carolina Rules of Civil Procedure for an Order granting the relief described below." The relief so described was "an Order declaring that pursuant to the Final Consent Judgment, that Plaintiffs have the right to remove the entire tree[.]" (Emphasis added).
Rule 70 empowers a court to enforce a judgment directing a party to perform a specific act by ordering that the act be done by another party appointed by the judge, by adjudging a party who has failed to perform a directed act to be in contempt, or by entering a judgment divesting title from such a party. N.C. Gen. Stat. § 1A-1, Rule 70 (2009); see also Population Planning Assocs., Inc. v. Mews, 65 N.C. App. 96, 100, 308 S.E.2d 739, 742 (1983) ("Rule 70 empowers the court to enforce a judgment that requires performance of a `specific act' by ordering that the act be done by — another party appointed by the judge.'"). The exercise of this power is limited to situations where a party fails to comply with a judgment within the time specified. N.C. Gen. Stat. § 1A-1, Rule 70.
Rule 70 provides as follows:
If a judgment directs a party to execute a conveyance of land . . . or to perform any other specific act and the party fails to comply within the time specified, the judge may direct the act to be done at the cost of the disobedient party by some other person appointed by the judge. . . . The judge may also in proper cases adjudge the party in contempt. If real or personal property is within the State, the judge in lieu of directing a conveyance thereof may enter a judgment divesting the title of any party and vesting it in others. . . .
N.C. Gen. Stat. § 1A-1, Rule 70.
Initially, we note that, in this case, because the consent judgment that is being "enforced" does not direct Parker to perform any specific act, Rule 70 is inapplicable. The consent judgment finds as fact that "Plaintiffs shall be vested with any and all rights associated with the Avigation Easement" and decrees that "[Parker] has agreed to accept the sum of $60,000[,]" but the judgment directs no specific action by Parker. As such, application to the court for relief pursuant to Rule 70 was unavailable because there was no direction in the consent judgment with which Parker could fail to comply.
Further, and more importantly, Rule 70 is inapplicable because Plaintiffs' requested relief — which, by its terms, can only be characterized as declaratory in nature — is not the type of relief that can be granted to a party under Rule 70. Although Plaintiffs purported to seek an order pursuant to Rule 70, the order actually sought and obtained was one declaring Plaintiffs' rights pursuant to the consent judgment. As discussed supra, the relief a court can grant under Rule 70 is limited to (1) ordering an act to be done by another, (2) adjudging a party in contempt, and/or (3) entering a judgment divesting title. N.C. Gen. Stat. § 1A-1, Rule 70. In this case, Plaintiffs sought, and the court granted, none of the relief authorized by Rule 70. Accordingly, the trial court could not have properly entered the judgment requested by Plaintiffs pursuant to Rule 70. Cf. Elliott v. Burton, 19 N.C. App. 291, 295, 198 S.E.2d 489, 491 (1973) (holding as error the trial court's entry of judgment on plaintiff's motion to enforce a consent judgment where the procedures of Rule 70 were not followed).
It is unclear, then, pursuant to what authority Plaintiffs moved the court for judgment and through what power the court granted Plaintiffs' motion. Citing this Court's decision in State ex rel. Howes v. Ormond Oil Gas Co., 128 N.C. App. 130, 136, 493 S.E.2d 793, 797 (1997), for the proposition that a party "may seek to enforce [a] settlement agreement by filing a motion in the original action[,]" Plaintiffs contend that their "motion to enforce" was simply "a pleading to enforce the settlement agreement between the parties, and therefore such relief could be sought by the filing of a motion in the case."
In Howes, this Court characterized a motion by the plaintiff in that case as "a demand for specific performance of the parties' settlement agreement[,]" and, based on analysis of cases from other jurisdictions holding that a party may "seek to enforce [a] settlement agreement by petition or motion in the original action," held that "the trial court may enter a judgment [] in accordance with the terms found in the parties' settlement agreement." Id. at 136-37, 493 S.E.2d at 796-97 (citations and internal quotation marks omitted). Citing Howes, as well as In re Will of Smith, 249 N.C. 563, 568, 107 S.E.2d 89, 93 (1959) and Few v. Hammack Enters., Inc., 132 N.C. App. 291, 299, 511 S.E.2d 665, 671 (1999), this Court in Hemric v. Groce, 154 N.C. App. 393, 572 S.E.2d 254 (2002), noted that there is some North Carolina authority to suggest that a party may "file a motion in the cause to seek specific performance of a non-domestic consent judgment[.]" Id. at 398, 572 S.E.2d at 257 (emphasis added). Accordingly, it appears Plaintiffs may be correct that they were allowed to "seek to enforce" their settlement agreement "by filing a motion in the case."
However, as is obvious from the wording of both Plaintiffs' motion and the trial court's order on the motion, the motion filed by Plaintiffs was not a motion seeking specific performance: in their motion, Plaintiffs expressly requested an order "declaring" their rights pursuant to the consent judgment; in its order, the trial court expressly decreed that Plaintiffs "shall have the right to remove at the ground the entire tree" in exercising their rights associated with the easement described in the consent judgment. Further, it is noteworthy that at the 19 January 2010 hearing on Plaintiffs' motion, the trial court, after expressing its concern that there may not be a justiciable case or controversy before the court, stated that "it looks like it's more in the nature of a declaratory judgment."
In line with the trial court's hunch as to the nature of Plaintiffs' motion, Parker argues on appeal that the relief requested by Plaintiffs "would more appropriately be made in an action for declaratory judgment." We agree. Based on the clear language of the motion, we must conclude that Plaintiffs' "motion to enforce" the consent judgment was not a motion seeking to "enforce" the consent judgment by an order of specific performance, but was actually a motion seeking to institute a declaratory judgment action. See N.C. Gen. Stat. § 1-254 (2009) (stating that any person interested under a written contract or other writing constituting a contract, whose rights are affected by a contract, may have determined any question of construction or validity arising under the contract, and obtain a declaration of rights, status, or other legal relations thereunder); see also Bicket v. McLean Securities, Inc., 124 N.C. App. 548, 552, 478 S.E.2d 518, 520-21 (1996) (reviewing a trial court's ruling on a party's claim for declaratory judgment on a consent judgment and noting that a consent judgment is merely a court-approved contract), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997). Such an action may properly be brought before a court by filing an independent action. See, e.g., Duke Energy Corp. v. Malcolm, 178 N.C. App. 62, 630 S.E.2d 693, aff'd per curiam, 361 N.C. 111, 637 S.E.2d 538 (2006); Bicket, 124 N.C. App. 548, 478 S.E.2d 518. However, as previously held by this Court in Home Health and Hospice Care, Inc. v. Meyer, 88 N.C. App. 257, 362 S.E.2d 870 (1987), because a declaratory judgment is a "separate and independent action[,]" a declaratory judgment action "may not be commenced by a motion in the cause[.]" Id. at 262, 362 S.E.2d at 873. As Plaintiffs' motion was clearly seeking relief in the form of a declaratory judgment on the rights arising under the consent judgment, we must conclude that Plaintiffs' motion could not have been "filed in the cause" and, thus, was not properly before the trial court. Id.
In so concluding, we acknowledge that, regardless of whether the relief sought by Plaintiffs is characterized as an order for specific performance of, or declaratory judgment on, the consent judgment, the court ruling on such motion would be required, at least to some degree, to interpret the terms of the consent judgment. However, we need not decide at what level of interpretation a motion for specific enforcement of a consent agreement becomes a motion for a declaration of rights under that agreement. Instead, we deem it sufficient to say that Plaintiffs are bound by the relief they requested in their motion, just as we are bound by our previous holding in Home Health.
Accordingly, because the trial court lacked the authority-under Rule 70, our decision in Howes, or otherwise — to interpret the consent judgment pursuant to Plaintiffs' motion in the cause, the trial court's order must be vacated.
"Further proceedings in this matter, if any, must emanate from the fertile imagination of counsel." Home Health, 88 N.C. App. at 263, 362 S.E.2d at 873.
VACATED.
Judges STEELMAN and HUNTER, Robert N., Jr., concur.
Report per Rule 30(e).