{
  "id": 8173427,
  "name": "WILLIAM J. NOLAN, III, and, LOUISE C. HEMPHILL-NOLAN, Petitioners v. TOWN OF WEDDINGTON, a North Carolina Municipality, Respondent",
  "name_abbreviation": "Nolan v. Town of Weddington",
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    "judges": [
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    "parties": [
      "WILLIAM J. NOLAN, III, and, LOUISE C. HEMPHILL-NOLAN, Petitioners v. TOWN OF WEDDINGTON, a North Carolina Municipality, Respondent"
    ],
    "opinions": [
      {
        "text": "BRYANT, Judge.\nWilliam J. Nolan, III and Louise C. Hemphill-Nolan (petitioners) appeal from an order entered 3 January 2006 granting an involuntary dismissal with prejudice against the Town of Weddington (respondent). Petitioners specifically challenge respondent\u2019s annexation ordinance by arguing that the, police services respondent provides to its residents are not \u201cmeaningful.\u201d The annexation ordinance petitioners challenge was adopted by respondent on 11 July 2005, and seeks to annex into the Town of Weddington, an unincorporated portion of Union County (Annexation Area). Petitioners own four vacant lots within the Annexation Area and, pursuant to N.C. Gen. Stat. \u00a7 160A-50, they petitioned the Union County Superior Court to review and invalidate the annexation ordinance.\nOn 15 December 2005, the Union County Superior Court held a non-jury trial, presided over by the Honorable Judge F. Fetzer Mills, to consider petitioners\u2019 claim. Chief Deputy Ben Bailey of the Union County Sheriff\u2019s Department was identified as a potential witness for petitioners the week before trial and appeared under subpoena. Respondent filed a motion in limine to exclude Chief Deputy Bailey\u2019s testimony. After questioning Chief Deputy Bailey, respondent moved to dismiss this action under N.C. R. Civ. P, Rule 41 (b). Judge Mills granted respondent\u2019s motion in limine and motion to dismiss. Petitioners appeal.\nOn appeal petitioners argue the trial court erred by: (I) granting respondent\u2019s motion in limine which excluded Chief Deputy Ben Bailey\u2019s testimony concerning an agreement to provide enhanced police services to Town residents and (II) granting respondent\u2019s motion to dismiss pursuant to N.C. R. Civ. R, Rule 41(b). For the following reasons, we affirm the trial court\u2019s ruling.\nI\nPetitioners first argue the trial court erred by granting respondent\u2019s motion in limine which excluded Chief Deputy Bailey\u2019s testimony concerning the agreement between the respondent and Union County Sheriff\u2019s Department to provide enhanced police services to Town residents.\n\u201cA motion in limine seeks pretrial determination of the admissibility of evidence proposed to be introduced at trial; its determination will not be reversed absent a showing of an abuse of the trial court\u2019s discretion.\u201d Warren v. GMC, 142 N.C. App. 316, 319, 542 S.E.2d 317, 319 (2001) (citing Nunnery v. Baucom, 135 N.C. App. 556, 521 S.E.2d 479 (1999)). The \u201cparty asserting error must show from the record not only that the trial court committed error, but that the aggrieved party was prejudiced as a result.\u201d Lawing v. Lawing, 81 N.C. App. 159, 162, 344 S.E.2d 100, 104 (1986); N.C. Gen. Stat. \u00a7 1A-1, Rule 61 (2005) (\u201cNo error in either the admission or exclusion of evidence ... is ground for granting a new trial... unless refusal to take such action amounts to the denial of a substantial right.\u201d).\nIn his testimony, Chief Deputy Bailey explained that at any one time only eight sheriff\u2019s deputies patrol Union County. Respondent\u2019s contract requires that one or more additional deputies within Weddington respond to calls for at least twelve hours each day. Chief Deputy Bailey stated the specific hours these deputies are stationed in Weddington are generally tailored to meet Weddington\u2019s expressed needs and preferences. Chief Deputy Bailey also stated that Weddington\u2019s contract payments fund three deputy positions within the Sheriff\u2019s Department that otherwise \u201cwould not exist.\u201d Chief Deputy Bailey stated that Weddington\u2019s contract with the Sheriff\u2019s Department provides the Town with \u201cenhanced coverage[.]\u201d\nPetitioners complain that Chief Deputy Bailey\u2019s testimony was essential to explain the details of how Weddington\u2019s police services are provided. While Chief Deputy Bailey\u2019s testimony did provide the terms and conditions of the police services contract his testimony also highlighted the fact that the contract provided enhanced police protection as an added benefit to Weddington residents. Petitioners have not shown the exclusion of Chief Deputy Bailey\u2019s testimony prejudiced the outcome of this case. The trial court did not abuse its discretion in granting respondent\u2019s motion in limine. This assignment of error is overruled.\nII\nPetitioner argues the trial court erred by granting respondent\u2019s motion to dismiss pursuant to N.C. R. Civ. R, Rule 41(b) based on respondent\u2019s failure to abide by statutory annexation requirements. We disagree.\nWhere the record of a town\u2019s annexation proceedings demonstrates prima facie compliance with the annexation statutes, a party challenging the annexation\u2019s validity has the burden of proving that the annexation is invalid. Food Town Stores, Inc. v. Salisbury, 300 N.C. 21, 25, 265 S.E.2d 123, 126 (1980). \u201cThe trial judge sits as trier of the facts and may weigh the evidence [and] find the facts against the plaintiff... even though the plaintiff has made out a prima facie case which would have precluded a directed verdict for the defendant in a jury case.\u201d Lumbee River Elec. Membership Corp. v. Fayetteville, 309 N.C. 726, 741, 309 S.E.2d 209, 218 (1983). The trial court does not construe the evidence in a light most favorable to the plaintiff but instead weighs the evidence just as it would at the end of a non-jury trial. Dealers Specialties, Inc. v. Neighborhood Housing Servs., Inc., 305 N.C. 633, 638, 291 S.E.2d 137, 140 (1982). \u201cThe trial court\u2019s judgment therefore must be granted the same deference as a jury verdict.\u201d Lumbee River, 309 N.C. at 741, 309 S.E.2d at 218. Here, the Superior Court\u2019s factual findings are not challenged on appeal and are therefore conclusive. See N.C. R. App. P. 10(a) (\u201cExcept as otherwise provided herein, the scope of review on appeal is confined to a consideration of those assignments of error set out in the record\u201d); see also Parkwood Ass\u2019n v. City of Durham, 124 N.C. App. 603, 609, 478 S.E.2d 204, 208 (1996) (\u201cSince petitioners did not except or assign error to these findings, they are presumed to be correct and supported by the evidence.\u201d).\nPetitioners raise only one challenge to Weddington\u2019s annexation: that Weddington will provide insufficient municipal services to the Annexation Area. A town is required to extend its municipal services on a non-discriminatory basis, meaning it must provide an annexed area with substantially the same services it provides to existing town residents. N.C. Gen. Stat. \u00a7 160A-47(3) (2005). This statute requires a town to adopt a report on its annexation that includes:\nA statement setting forth the plans of the municipality for extending to the area to be annexed each major municipal service performed within the municipality at the time of annexation. Specifically, such plans shall: a. Provide for extending police protection, fire protection, solid waste collection and street maintenance services to the area to be annexed ... on substantially the same basis and in the same manner as such services are provided within the rest of the municipality[.]\nN.C. Gen. Stat. \u00a7 160A-47(3)(a) (2005). The sufficiency of services provided to an annexed area, therefore, is measured against what services are provided to existing town residents. A town must provide the annexed area with \u201ceach major municipal service performed within the municipality,\u201d and it must provide those services \u201con substantially the same basis\u201d that they are provided elsewhere within the town. See Id. If a town extends the services it currently provides, and if it extends them in a nondiscriminatory manner, it satisfies the statutory requirements. See Greene v. Valdese, 306 N.C. 79, 87, 291 S.E.2d 630, 635 (1982) (\u201cProviding a nondiscriminating level of services within the statutory time is all that is required.\u201d ) (emphasis in original) (citation omitted); Chapel Hill Country Club, Inc. v. Chapel Hill, 97 N.C. App. 171, 184, 388 S.E.2d 168, 176 (1990) (\u201ca municipality\u2019s plan is required to show only that a nondiscriminatory level of services will be provided\u201d).\nAccording to the annexation report, Weddington will extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements. Petitioners contend that Weddington\u2019s services will not provide the Annexation Area with a \u201cmeaningful\u201d benefit. Our Supreme Court recently stated that if an annexing town\u2019s services are too minimal to provide such a benefit, its annexation is invalid, even if it will extend those minimal services on a nondiscriminatory basis. Nolan v. Village of Marvin, 360 N.C. 256, 262, 624 S.E.2d 305, 308 (2006).\nIn Village of Marvin, these same petitioners argued that an annexation plan adopted by the Village of Marvin was invalid because Marvin would provide insufficient administrative service to the annexed area. Village of Marvin, 360 N.C. at 258, 624 at 307. Marvin provided no other services beyond the services of an administrative staff consisting of three part-time employees (a town clerk, tax collector, and administrator) each of whom worked only twelve (12) hours per week. Id. The Supreme Court deemed Marvin\u2019s annexation invalid, even though it satisfied the non-discriminatory application standard, because Marvin\u2019s administrative services were too minimal to provide the annexed area with any \u201cmeaningful\u201d benefit. Id. at 260, 624 at 308 (annexation policy \u201cis grounded in a legislative expectation that the annexing municipality possesses meaningful. . . services[.]\u201d).\nThe \u201cmeaningful\u201d benefit standard is not an express requirement of the annexation statutes, but instead is implied in the underlying annexation policies. See N.C.G.S. \u00a7 160A-47(3) (2005). Prefacing the substantive provisions of the annexation statute is a \u201cDeclaration of Policy.\u201d See N.C. Gen. Stat. \u00a7 160A-45 (2005). The \u201cDeclaration of Policy\u201d is read in pari materia with the more detailed annexation statutes to guide their interpretation. Moody v. Town of Carrboro, 301 N.C. 318, 325-27, 271 S.E.2d 265, 270-71 (1980) and Village of Marvin, 360 N.C. at 257, 624 S.E.2d at 308. The \u201cDeclaration of Policy\u201d explains that \u201cmunicipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare [and] municipal boundaries should be extended ... to provide the high quality of governmental services needed therein for the public health, safety and welfare [.]\u201d Village of Marvin, 360 N.C. at 261, 624 S.E.2d at 308 (emphasis added) (quoting \u201cDeclaration of Policy\u201d in N.C.G.S. \u00a7\u00a7 160A-33(2) and (3)).\nPetitioners contend Weddington\u2019s services fail Village of Marvin\u2019s \u201cmeaningful\u201d benefit test. Our Supreme Court held that merely providing limited administrative services without providing significant benefits to the annexed residents was inadequate to meet the statutory requirements. Village of Marvin, 360 N.C. at 262, 624 S.E.2d at 308. The \u201cDeclaration of Policy,\u201d instructs \u201c[t]hat municipal boundaries should be extended in accordance with legislative standards applicable throughout the State[,]\u201d and that annexation should be governed by \u201cuniform legislative standardsf.]\u201d N.C. Gen. Stat. \u00a7\u00a7 160A-45(3) and (5) (2005).\nThe annexation statutes indicate police protection is a service that furthers annexation policy; in fact, the statute expressly contemplates that one type of service an annexing town may extend to an annexed area is \u201cpolice protection[.]\u201d N.C. Gen. Stat. \u00a7 160A-47(3)(a) (2005). Our Supreme Court specifically noted that the Village of Marvin did not have a contract for police service. Village of Marvin, 360 N.C. at 258, 624 S.E.2d at 307 (noting that when annexation was adopted \u201c[T]he Village of Marvin lacked a contract for police protection.\u201d). The Supreme Court found the Village of Marvin\u2019s annexation invalid because the limited administrative services Marvin provided (such as those of a part-time administrator, clerk, and tax collector) would not confer a significant benefit on the residents; in other words such limited administrative services would not promote an annexed area\u2019s public health, safety, and welfare and did not provide the Village of Marvin with a \u201cmeaningful\u201d benefit.\nBy contrast, in the instant case, the Weddington annexation provided police protection, a service that promotes the health, safety, and welfare of residents within the annexed' area. Here, the sheriff tailors the police protection provided by three additional deputies to meet Weddington\u2019s expressed needs and preferences. Such protection provides a meaningful benefit to the annexed residents. Further, petitioners are bound by the trial court\u2019s factual finding that \u201c[Petitioners] . . . have not shown that the Annexation Area currently receives police services that are comparable to those that the Town will provide the Annexation Area after the annexation becomes effective.\u201d See Parkwood Ass\u2019n, 124 N.C. App. at 609, 478 S.E.2d at 208 (\u201cSince petitioners did not except or assign error to th[is] finding[], [it is] presumed to be correct and supported by the evidence.\u201d). Because the Weddington annexation meets the requirements of the annexation statutes (see e.g., N.C.G.S. \u00a7 160A-47(3)(a) (2005)) and furthers the public policies underlying the annexation statutes (N.C.G.S. \u00a7 160A-45 (2005)), it is therefore valid. This assignment of error is overruled.\nAffirmed.\nJudges McGEE and ELMORE concur.\n. The General Statutes contain two sets of statutes governing annexation, one for towns with fewer than 6,000 persons and one for larger towns. Each set has its own \u201cDeclaration of Policy,\u201d but both Declarations are identical with regard to the issues in this appeal. See N.C. Gen. Stat. \u00a7 160A-33 and N.C. Gen. Stat. \u00a7 160A-45(2) (2005) (\u201cThat municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and .welfare in areas being intensively used for residential, commercial, industrial, institutional and governmental purposes or in areas undergoing such development].]\u201d).",
        "type": "majority",
        "author": "BRYANT, Judge."
      }
    ],
    "attorneys": [
      "The Brough Law Firm, by Robert E. Homick, Jr., for petitioner-appellants.",
      "Parker, Poe, Adams & Bernstein, L.L.P., by Anthony Fox and Benjamin R. Sullivan, for respondent-appellee."
    ],
    "corrections": "",
    "head_matter": "WILLIAM J. NOLAN, III, and, LOUISE C. HEMPHILL-NOLAN, Petitioners v. TOWN OF WEDDINGTON, a North Carolina Municipality, Respondent\nNo. COA06-704\n(Filed 3 April 2007)\n1. Cities and Towns\u2014 annexation \u2014 police services \u2014 testimony excluded\nThe trial court did not abuse its discretion in an annexation action by granting a motion in limine to exclude testimony from the Chief Deputy about the agreement between respondent (the annexing town) and the county sheriff\u2019s department to provide enhanced police services to the town\u2019s residents. Petitioners did not show that the exclusion of the testimony prejudiced the outcome of the case.\n2. Cities and Towns\u2014 annexation \u2014 meaningful benefit \u2014 police services\nThe trial court did not err by granting a motion to dismiss petitioners\u2019 challenge to an annexation ordinance for failure to provide the annexed residents with a meaningful benefit where the annexation provided police protection which was tailored to the expressed needs and preferences of the residents.\nAppeal by petitioners from an order entered 3 January 2006 by Judge F. Fetzer Mills, Union County Superior Court. Heard in the Court of Appeals 24 January 2007.\nThe Brough Law Firm, by Robert E. Homick, Jr., for petitioner-appellants.\nParker, Poe, Adams & Bernstein, L.L.P., by Anthony Fox and Benjamin R. Sullivan, for respondent-appellee."
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