in the Court of Appeals 15 November 2017.
by defendant from order entered 29 September 2016 by Judge
Daniel A. Kuehnert in Superior Court, Mecklenburg County, No.
13 CVS 8062
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.
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.
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.
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.
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).
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
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.
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."
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
14. Good cause exists to allow the City to amend its
Complaint as requested by the City's two motions to
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
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 ...