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City of Charlotte v. University Financial Properties, LLC

Court of Appeals of North Carolina

July 3, 2018

THE CITY OF CHARLOTTE, a municipal corporation, Plaintiff,
v.
UNIVERSITY FINANCIAL PROPERTIES, LLC, A North Carolina limited liability company f/k/a University Bank Properties Limited Partnership; BANK OF AMERICA, N.A. f/k/a NCNB National Bank of North Carolina, Tenant; and Any Other Parties in Interest, Defendants.

          Heard in the Court of Appeals 15 November 2017.

          Appeal by defendant from order entered 29 September 2016 by Judge Daniel A. Kuehnert in Superior Court, Mecklenburg County, No. 13 CVS 8062

          Parker Poe Adams & Bernstein, LLP, by Nicolas E. Tosco, Benjamin R. Sullivan, and Charles C. Meeker, for plaintiff-appellee.

          Johnston, Allison & Hord, P.A., by Martin L. White, R. Susanne Todd, and David V. Brennan, for defendant-appellant University Financial Properties, LLC.

          STROUD, JUDGE.

         Defendant University Financial Properties, LLC ("defendant") appeals from the trial court's order entered 29 September 2016 granting plaintiff's motion to amend its "Complaint, Declaration of Taking and Notice of Deposit and Service of Plat." On appeal, defendant argues that the trial court erred by ruling that defendant's voluntary dismissal had no effect to end the case and in granting plaintiff's motions to amend its complaint. We reverse the trial court's order because after defendant filed its notice of voluntary dismissal, the trial court no longer had authority to rule on plaintiff's motion to amend its complaint, declaration of taking, and deposit. Under N.C. Gen. Stat. § § 136-105 and 136-107 (2017), defendant was in the position of the claimant and had the right to elect to accept the deposit or to go to trial, and plaintiff had no right to force defendant to proceed to trial after defendant elected to dismiss its claim for determination of just compensation. We reverse and remand for entry of a final judgment in accord with N.C. Gen. Stat. § 136-107, setting compensation based on the deposit.

         Facts

         Plaintiff filed its complaint, declaration of taking, notice of deposit, and service of plat in April 2013. Plaintiff estimated the sum of $570.425.00 to be just compensation for the taking. Plaintiff deposited that sum with the superior court and stated that defendant could "apply to the Court for disbursement of the money as full compensation, or as a credit against just compensation, to be determined in this action." Defendant applied for disbursement of the deposit on 22 July 2013. An order granting the disbursement request was entered the next day, 23 July 2013.

         Defendant filed its answer on 9 April 2014, requesting a jury trial to determine just compensation for the taking. On 24 October 2014, plaintiff filed a motion for determination of issues other than damages under N.C. Gen. Stat. § 136-108 (2017), asking the trial court to determine what impact, if any, construction of a bridge on an existing public right-of-way may have in this action and whether the interference with the view of the property is a compensable taking. On or about 19 November 2014, plaintiff filed a motion for partial summary judgment, arguing that plaintiff was "entitled to partial summary judgment on the question of whether an elevated bridge that the City plans to build at the intersection of North Tryon Street and W.T. Harris Boulevard is part of the taking in this case and is an element of the just compensation owed to [defendant] University Financial." Plaintiff argued that construction of the bridge was not part of the taking but rather was part of the construction of a public project on existing public property, so defendant should not be entitled to compensation for any impacts from the bridge. On 17 December 2014, the trial court denied all of plaintiff's motions and concluded that defendant was entitled to present evidence at trial of the bridge's impact on defendant's remaining property.

         On 5 April 2016, this Court reversed the trial court, holding that the loss of visibility due to the bridge is not a compensable taking and remanded the case for further proceedings consistent with its opinion. City of City of Charlotte v. Financial Properties, __ N.C.App. __, ___, 784 S.E.2d 587, 594 (2016), disc. review denied, 369 N.C. 37, 792 S.E.2d 789 (2016).

         Plaintiff then filed a motion to amend its complaint on 22 August 2016, asking that the complaint be amended to state the lesser sum of $174, 475.00 as its estimate of just compensation for the taking. Plaintiff asserted that it is entitled to a jury trial on the amount of compensation and under N.C. Gen. Stat. § 136-121 (2017) to a refund from defendant "to the extent that Plaintiff's previous deposit exceeds the amount of just compensation determined by the final judgment in this action." Plaintiff filed a second motion to amend its complaint on 25 August 2016 after the North Carolina Supreme Court declined to review this Court's earlier opinion.

         On 1 September 2016, defendant filed a notice of voluntary dismissal without prejudice under Rule 41(a) of the North Carolina Rules of Civil Procedure. A corrected notice of voluntary dismissal without prejudice was filed one day later, 2 September 2016, to correct a clerical error regarding the file number. The notice stated:

Defendant, University Financial Properties, LLC, through the undersigned counsel, pursuant to Rule 41(a) of the North Carolina Rules of Civil Procedure hereby gives notice of voluntary dismissal without prejudice of all pending claims against Plaintiff, including claims for additional compensation and attorney's fees, said Defendant accepting the amount of deposit in the above-entitled action. Each party shall bear its own costs and attorneys' fees.

         In addition, on 6 September 2016, defendant filed a motion for judgment on the pleadings, alleging that defendant "is entitled to final judgment as a matter of law against Plaintiff in the amount deposited."

         On 29 September 2016, the trial court entered an order granting plaintiff's motions to amend its complaint, declaration of taking, and notice of deposit and service of plat. The trial court made findings of fact regarding the procedural history of the case, generally as described above, and then addressed the pending motions as follows:

9. On August 22, 2016, the City filed a Motion to Amend Its Complaint in order to decrease the Complaint's estimate of just compensation to One Hundred Seventy-Four Thousand Four Hundred Seventy-Five Dollars ($174, 475.00). This decrease would remove from the Complaint's estimate of just compensation any compensation for the bridge to be built within North Tryon Street, which the Court of Appeals has held is not a part of this condemnation.
10. The North Carolina Court of Appeals later issued an Order formally certifying to this Court that University Financial's Petition for Discretionary Review had been denied. That Order was received by this Court on August 25, 2016. Later that day, the City filed with this Court its Second Motion to Amend its Complaint, which was identical to its first Motion to Amend its Complaint.
11. On September 1, 2016, University Financial filed a "Notice of Voluntary Dismissal Without Prejudice," which purported to dismiss, under North Carolina Rule of Civil Procedure 41(a), the demand for additional compensation in University Financial's Answer.
12. On September 6, 2016, University Financial filed a Motion for Judgment on the Pleadings requesting that this Court enter final judgment awarding University Financial compensation of $570, 425.00, the estimated just compensation in the City's un-amended Complaint.
13. This action has not been scheduled for trial, nor have any other deadlines been set in this case. As a result, granting the City's request to amend its Complaint would not delay or disrupt any proceeding already scheduled in this action.
14. Good cause exists to allow the City to amend its Complaint as requested by the City's two motions to amend.
Based on these findings, the Court concludes as follows:
1. University Financial's "Notice of Voluntary Dismissal Without Prejudice" was not a proper or valid dismissal under North Carolina Rule of Civil Procedure 41. The voluntary dismissal was a nullity and did not have the effect of concluding this case by acknowledging satisfaction with the amount of the deposit and waiving further proceedings to determine just compensation as contended by University Financial. To conclude otherwise would be to fail to follow the Court of Appeals' mandate in this case.
2. University Financial's voluntary dismissal does not prevent this Court from considering the City's motions to amend or from allowing the City to amend its Complaint.
3. The Court is mandated by the Court of Appeals' ruling in this case to allow the City's timely motions to amend and give no impact whatsoever to University Financial's voluntary dismissal.
4. The Court concludes that this Order is a final ruling as to the meaning and effect of University Financial's voluntary dismissal because it has cut off some of University Financial's claim for the full amount of the deposit. See N.C. R. Civ. P. 54(b).
5. Given the uniqueness of the facts and applicable law in this case, the Court certifies that there is no just reason to delay an appeal of this matter. A trial would be a waste of the Court's time and resources at this point in time given this Order, and the prior Court of Appeals' mandate. Whereas, if [University] Financial is correct in its interpretation of the effect of its ...

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