Lead Opinion
I. Factual Background and Procedural History
Dеfendant Jonathan B. Costa (“Costa”) is the owner of certain property in New Hanover County which is designated as “Tract 3” in the deed from James Henry Hobbs, Jr. and Evelyn Hobbs to Costa and his wife, Jessica A. Costa. The Recorded Plat (as shown by the map marked as Plaintiff’s Exhibit 1; hereinafter referred to as “the Easement Map”) shows a 30-foot wide sewer easement and a 30-foot wide access and utility easement that run along the northern side of Costa’s property. The Easement Map reflects that “all sewer easements are public” and are dedicated for public use.
In November and December 2006, the New Hanover County Water and Sewer District authorized the installation of and installed a sewer line and related sewer system components within the 30-foot sewer easement. On 23 August 2007, Costa brought suit against Coastal Colorado Development, LLC, the developer of a nearby subdivision, and New Hanover County, alleging negligеnce and seeking declaratory judgment and monetary damages related to the installation of the sewer line and components. On 12 February 2008, Costa voluntarily dismissed, without prejudice, New Hanover County from the Coastal Colorado Development lawsuit. Thereafter, a handwritten document titled “Memo of Judgement” [sic] was filed stating that there was no utility, sewer, or access easement on Costa’s property.
On 1 July 2008, through a merger of the New Hanover County Water and Sewer District, Plaintiff Cape Fear Public Utility Authority (“the Authority”) became the owner of the easement rights over Costa’s property. Because of the “Memo of Judgement,” Costa contended that he had the right to remove the Authority’s sewer line and sewer system components from the easement over his property. On 12 November 2008, the Authority filed a complaint alleging that a 30-foot wide sewer easement and a 30-foot wide access and utility easement run along the north side of Costa’s property. The Authority also sought and was granted a temporary restraining order and preliminary injunction against Costa to prevent him from interfering with the Authоrity’s easements.
In response to the Authority’s complaint, Costa filed an answer and counterclaim alleging that he owns the land over which the Authority claims an easement; that the map upon which the Authority is relying does not pertain to his property; and that the Authority is without authority to install sewer lines on Costa’s property. Costa counterclaimed for continuing trespass and inverse condemnation.
On 19 February 2009, Costa filed a motion for partial summary judgment alleging that no genuine issue of material fact existed as to whether an easement exists on his property. In support of his motion, Costa submitted affidavits from D. Robert Williams, Jr., a North Carolina real estate attorney, and Arnold Carson, a licensed North Carolina surveyor. In their identical affidavits, Costa’s affiants stated that the map under which the Authority claims its easement does not pertain to the Costa property.
In opposition to Costa’s motion for partiаl summary judgment, the Authority filed the affidavit of Mark A. Stocks, the surveyor who performed the original survey at issue in this case, along with copies of the relevant deeds and map. The Authority also filed an objection to thé affidavits submitted by Costa because Costa’s affidavits were “nothing more than a legal opinion of the legal effect of the map” at issue.
On 20 March 2009, the trial court entered an Order denying Costa’s motion for summary judgment, entering summary judgment in
II. Discussion
In his sole argument on appeal, Costa contends “that the [trial] court erred in granting summary judgment in favor of the plaintiff because there are genuine issues of material fact with respect to whether the court should have considered the affidavits of Costa’s tendered expert witnesses.” We disagree.
Our Court reviews the trial court’s ruling on the аdmissibility of affidavits for an abuse of discretion. Blair Concrete Servs., Inc. v. Van-Alien Steel Co.,
N.C. R. Evid. 702 permits expert witnesses to testify when such testimony “will assist the trier of fact to understand the evidence or to determine a fact in issuef.]” N.C. R. Evid. 704 provides that “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” However, there are limitations to this principle. The official commentary following Rule 704 provides a helpful example of these limitations:
[T]he question “Did T have capacity to make a will?” would be excluded, while the question, “Did T have suffiсient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed.
N.C. R. Evid. 704 (Commentary).
Opinions of experts or other witnesses must not usurp the province of the court and jury by drawing conclusions of law or fact upon which the decision of the case depends, the test being
whether additional light can be thrown on the question under investigation by a person of superior learning, knowledge or skill*593 in the particular subject, one whose opinion as to the inferences to be drawn from the facts observed or assumed is deemed of assistance to the jury under the circumstances.
Patrick v. Treadwell,
In Williams v. Sapp,
[Plaintiff’s expert’s] opinion merely tells the jury the result that they should reach and, therefore, is not helpful to their determination of a fact in issue, as required by G.S. 8C-1, Rules 701 and 702. See, Commentary, G.S. 8C-1, Rule 704. The attorney’s testimony regarding his opinion amounts to instructions to the jury on easements by implication. This testimony does not invade the province of the jury, which plaintiff argues is permissible, but invades the province of the court and should not hаve been admitted. See, Board of Transportation v. Bryant,59 N.C. App. 256 ,296 S.E.2d 814 (1982). This error was clearly prejudicial to defendants, because the jury was required to answer the same question asked of plaintiff’s expert witness. We hold, therefore, that defendants are entitled to a new trial on the issue of easement by implication.
Id.
In the present matter, Costa’s witnesses made the following pertinent statements in their identical affidavits:
4. . . . [T]here is a clearly defined 30 foot sewer easement, 30 foot access аnd utility easement that pertain to Tracts A, C, D, and E, and a 30 foot sewer easement that pertains to Tracts A, C, D, and E.
*594 5. The James Henry Hobbs, Jr. parcel is an uplands parcel, also known in this case as a remnant parcel, with no tract letter and this parcel is explicitly excluded from the acreage definition of the Map.
6. The solid lines drawn on the map are drawn around Tracts A, B, C, D, and E, but not around the James Henry Hobbs, Jr. tract.
7. This map, by its own definition, is a map thаt pertains to Tracts A, B, C, D and E, all as shown with setback requirements and total acreage and specifically excludes the remainder tract or remnant tract known as the James Henry Hobbs, Jr. Tract, owned by the plaintiff.
8. My conclusion, based upon my training and experience, examination of the public records, and the documents referred to in the complaint and in this affidavit, is that there is no dedicated easement other than the 15 foot roadway easement on the James Henry Hobbs, Jr. parcel.
Of these statements, the first four are not helpful to the trier of fact, as they merely describe the obvious physical features of the map. Thus, these were properly excluded. See N.C. R. Evid. 702. The final statement reaches a conclusion and decides an issue reserved for the trial court. This statement clearly “invades the province of the court and should not have been admitted.” Williams,
Absent the affidavits of Costa’s witnesses, no genuine issue of material fact exists as to whether the easement crosses Costa’s property. Accordingly, on the sole issue raised by the appeal to this Court, the order of the trial court is affirmed. We find it necessary, however, to address other issues which should be dispositive of this action, but which the parties and the trial court failed to recognize.
Defendant’s сounterclaim purported to state claims against Plaintiff for trespass, inverse condemnation, and a “declaratory judgment finding that Plaintiff has no easement upon Defendant’s property[.]” We first note that Defendant was bringing a counterclaim for inverse condemnation against a water and sewer authority, “created under the provisions of Article 1 of Chapter 162A[,]” which is vested with the power of eminent domain as a public condemnor, pursuant to N.C. Gеn. Stat. § 40A-3(c)(8) (2007). Chapter 40A of the General
the names and places of residence of all persons who are, or claim to be, owners of the property, so far as the same can by reasonable diligence be ascertained; if any persons are under a legal disability, it must be so stated; a statement as to any encumbrances on the property; the particular facts which constitute the taking together with the dates that they allegedly occurred, and; a description of the property taken. Upon the filing of said complaint summons shall issue and together with a copy of the complaint be served on the condemnor ....
Defendant was also required to file a memorandum of action “with the register of deeds in all counties in which the property is located[,]” which includes the following information:
(1) The names of those persons who the owner is informed and believes to be or claim to be owners of the property;
(2) A description of the entire tract or tracts affected by the alleged taking sufficient for the identification thereof;
(3) A statement of the property allegedly taken; and
(4) The date on which owner alleges the taking occurred,1 the date on which said action was instituted, the county in which it was instituted, and such other reference thereto as may be necessary for the identification of said action.
Defendant also alleged a counterclaim for “trespass,” but our courts have repeatedly held that
‘[t]he exclusive remedy for failure to compensate for a ‘taking’ is inverse condemnation under G.S. 40A-51 .... An owner has no common-law right to bring a trespass action against a city.’ McAdoo,91 N.C. App. at 573 ,372 S.E.2d at 744 . Plaintiff has no claim for trespass against [Moore Water and Sewer Authority] because it is a public utility with the power of eminent domain just as a municipality.
Cent. Carolina Developers, Inc. v. Moore Water & Sewer Auth.,
G.S. 40A-51, which provides for actions by private property owners where their property has been taken by governmental action without compensation, is clearly the relevant statute. Inverse condemnation is simply a device to force a governmental body to exercise its power of condemnation, even though it may have no desire to do so. Hoyle v. City of Charlotte,276 N.C. 292 ,172 S.E.2d 1 (1970). It allows a property owner to obtain compensation for a taking in fact, even though no formal exercise of the taking power has occurred. See City of Charlotte v. Spratt,263 N.C. 656 ,140 S.E.2d 341 (1965). G.S. 40A-51 provides the private property owner with a means to compel government action. If Chapter 40A provides the sole means for the City to condemn aviation easements over plaintiffs’ land, it follows that plaintiffs’ sole inverse сondemnation remedy would lie under G.S. 40A-51.
Smith v. City of Charlotte,
Defendant’s counterclaim for a “declaratory judgment” that “plaintiff has no easement upon defendant’s property” is likewise governed by N.C. Gen. Stat. § 40A-51. Whether Plaintiff had any interest in Defendant’s property, including an easement, would properly be addressed at a hearing under N.C. Gen. Stat. § 40A-47 (2007), which requires the trial court to
hear and determine any and all issues raised by the pleadings other than the issue of compensation, including, but not limited to, the condemnors’ authority to take, questions of necessary and proper parties, title to the land, interest taken, and area taken.
Both Plaintiff’s and Defendant’s briefs seem to assume that there could be a jury question as to Plaintiff’s “taking” of the property. This is incorrect, as there is no right to a trial by jury on the issue of the taking of a property interest under N.C. Gen. Stat. § 40A-51. This Court addressed this issue in regard to a taking by a local public condemnor in Raleigh-Durham Airport Authority v. Howard,
[T]he issue of ownership was not ‘triable by a jury of right.’ N.C. Gen. Stat. Sec. 40A-43 (1984) which controls special proceedings in condemnation of land for airports provides: The judge, upon motion and 10 days’ notice by either the condemnor or the owner, shall, either in or out of session, hear and determine any and all issues raised by the pleadings other than the issue of compensation, including but not limited to, the condemnors’ authority to take, questions of necessary and proper parties, title to the land, interest taken, and area taken, (emphasis added.)
In an action for inverse condemnation by a public condemnor, the court must determine all issues as to the ownership of the property and the interest and area taken. See id. Indeed, instead of a summary judgment hearing, the trial court should have been holding a hearing pursuant to N.C. Gen. Stat. § 40A-47 to determine issues other than damages. For this reason, even if the trial court had considered the affidavits submitted by Defendant, the trial court could properly have determined any issues regarding the property interest taken under N.C. Gen. Stat. § 40A-47. Only just compensation can be a jury issue, assuming that compensation is not determined by commissioners
Therefore, the trial court’s order granting summary judgment for Plaintiff was correct and should be affirmed, although for different reasons. See State v. Austin,
AFFIRMED.
Notes
. Although the counterclaim did not allege the date of the taking, the record contains a stipulation that the sewer line was completed within two years prior to the service and filing of Defendant’s counterclaim “such that Plaintiff would not have a statute of limitations defense to such Inverse Condemnation claim.” This stipulation also provided that Defendant Costa would dismiss with prejudice a pending “New Hanover County Superior Court civil action[,]” file No. 08-CVS-2228, filed against New Hanover County. Perhaps the other case which was dismissed also dealt with Defendant’s inverse condemnation claim; however, our record contains no further information about the dismissed case.
Dissenting Opinion
dissenting.
Because I believe that the trial court abused its discretion by striking the affidavits of Costa’s tendered expert witnesses in their entirety, rather than striking only the final paragraph of each, and consideration of the admissible portions thereof creates a genuine issue of material fact as to whether the map in question pertains to Cоsta’s property, I respectfully dissent.
The majority relies on Williams v. Sapp,
In several cases, this Court has allowed surveyors to express their opinions, which not only supports a conclusion that paragraphs 4-7 do not invade the province of the jury but also implicitly deems such testimony helpful. See, e.g., Beam v. Kerlee,
The majority’s failure to consider these Rule 704 cases that deal specifically with survey map testimony has resulted in a holding that I believe is contrary to North Carolina case law. In conclusion, I believe that only paragraph 8 amounts to an instruction on whether Costa’s parcel is subject to the easements, and where paragraphs 1-3
Additionally, I do not believe that Costa’s failure to comply with the requirements of Chapter 40A is dispositive of this entire action. While I agree that the statutory procedure issues recognized by the majority dispose of Costa’s counterclaims, the Authority’s allegation that the easement crossed Costa’s property would have remained for resolution even if the trial court had dismissed Costa’s counterclaims for inverse condemnation, trespass, and declaratory judgment. Where the Authority’s claims for declaratory and injunctive relief are not controlled by Chapter 40A or subject to dismissal for failure to comply therewith, the Authority’s action would have survived. As such, Costa would still have been able to present his defense thereоf, and his affidavits were admissible, excluding paragraph 8, to dispute the Authority’s allegation that his property is subject to the easement at issue. Thus, I would qualify the majority’s approval of the order — for the reasons addressed sua sponte under Chapter 40A — by limiting the grant of summary judgment to Costa’s counterclaims. As such, I would reverse the trial court’s order striking paragraphs 1-7 of Costa’s affidavits and entering summary judgment in favor of Authority and remand for consideration of the affidavits, as admissible, and for dismissal of Costa’s counterclaims, as consistent with the latter part of the majority’s opinion. Therefore, I respectfully dissent.