{ "id": 8548427, "name": "REDEVELOPMENT COMMISSION OF WINSTON-SALEM v. CLARA BELLE LEGRAND WEATHERMAN and husband, ROMULOUS T. WEATHERMAN", "name_abbreviation": "Redevelopment Commission of Winston-Salem v. Weatherman", "decision_date": "1974-10-02", "docket_number": "No. 7421SC441", "first_page": "136", "last_page": "142", "citations": [ { "type": "official", "cite": "23 N.C. App. 136" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "201 S.E. 2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "20 N.C. App. 241", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551397 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0241-01" ] }, { "cite": "177 S.E. 2d 448", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 709", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553916 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/9/0709-01" ] }, { "cite": "115 S.E. 161", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1922, "opinion_index": 0 }, { "cite": "184 N.C. 593", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271473 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nc/184/0593-01" ] }, { "cite": "67 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "234 N.C. 429", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622779 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/234/0429-01" ] }, { "cite": "196 S.E. 2d 64", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547458 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0108-01" ] }, { "cite": "78 S.E. 287", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "162 N.C. 317", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271141 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nc/162/0317-01" ] }, { "cite": "191 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562551 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0001-01" ] } ], "analysis": { "cardinality": 634, "char_count": 13720, "ocr_confidence": 0.597, "pagerank": { "raw": 2.7579077108643325e-07, "percentile": 0.8333234871994467 }, "sha256": "925a9e86ccb180df5d6103f7514fcc490bce9969d1564bddb62e8146dce1406d", "simhash": "1:8f6cd44e737ad55f", "word_count": 2319 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Morris concur." ], "parties": [ "REDEVELOPMENT COMMISSION OF WINSTON-SALEM v. CLARA BELLE LEGRAND WEATHERMAN and husband, ROMULOUS T. WEATHERMAN" ], "opinions": [ { "text": "MARTIN, Judge.\nThe Redevelopment Commission of Winston-Salem (hereinafter referred to as \u201cpetitioner\u201d) brings forward five assignments of error.\nFirst, petitioner assigns as error the trial court\u2019s exclusion of evidence which would have shown the sale price of nearby land that was approximately 1/5 the size of the condemned land. Petitioner correctly points out the law in North Carolina regarding the admissibility of the sale price of allegedly comparable property. In State v. Johnson, 282 N.C. 1, 191 S.E. 2d 641 (1972) at page 21, the Court says: \u201cWhether two properties are sufficiently similar to admit evidence of the purchase price of one as a guide to the value of the other is a question to be determined by the trial judge in the exercise of a sound discretion guided by law.\u201d The question for us is whether the trial court abused its discretion in excluding petitioner\u2019s evidence. Petitioner points us to 5 Nichols on Eminent Domain, \u00a7 21.31 [3] (1969), quoted with approval in State v. Johnson, supra, at page 21:\n\u201c \u2018It is not necessarily objectionable that the lot of land, the price of which it is sought to put in evidence, is of different size and shape from the lot taken; nevertheless, the court may properly exclude evidence of the price paid for similar land in close proximity to the land taken if the lot sold is much smaller than the land in controversy. A large piece of land cannot usually be applied profitably to the same uses as a small piece\nThe court in Johnson, supra, and apparently the writers in Nichols are referring to a case in which the condemnee is offering the sale price of a much smaller piece of land as evidence of the value of a larger piece of land which has been condemned. The reasoning behind excluding such evidence is that the smaller piece of land would overstate the comparable value of the larger tract of condemned land. The petitioner would have us believe that the smaller piece of land would, if anything, overstate the value of the condemned land. Clearly, a smaller piece of land does not always overstate the value of a nearby larger tract of land. There are other differences between the two pieces of land here which lead us to conclude that the trial court did not err in its exclusion of petitioner\u2019s evidence. The tract of land which petitioner maintains is comparable is only 1/5 the size of the condemned land and has two buildings on it while the condemned land has three buildings. While the trial court only referred to size in excluding petitioner\u2019s evidence, this appears to be only a chance remark. There was sufficient dissimilarity to justify the ruling of the trial court.\nFor its second assignment of error, the petitioner contends the trial court erred in refusing its motion for a jury view. G.S. 1-181.1 provides:\n\u201cThe judge presiding at the trial of any action or proceeding involving the exercise of the right of eminent domain or the condemnation of real property may, in his discretion, permit the jury to view the property which is the subject of condemnation.\u201d\nThe petitioner has failed to show any abuse of discretion by the trial court.\nPetitioner phrased its third assignment of error as follows:\n\u201cDid the court err in its charge to the jury concerning the testimony of interested witnesses when it cautioned the jury concerning the interested witnesses and how they should scan the testimony of such witnesses with care and caution, while failing to tell the jury which witnesses, if any, were interested, and thereby leaving the jury to its own speculation as to which witnesses were the interested ones?\u201d\nThe trial court instructed the jury in part:\n\u201cWhen you come to consider the testimony of an interested witness, I instruct you that you should scan such testimony with care and caution.\u201d\nIn its instructions to the jury, the trial court recounted evidence of per diem rates paid petitioner\u2019s expert witnesses and the amount of work they had done for condemnors. Since there was no such evidence relating to respondents\u2019 expert witnesses, the petitioner concluded that the jury must have taken the court\u2019s instructions as referring to his expert witnesses. Furthermore, petitioner argued that the court should have told the jury it was referring to all of the witnesses. We find no merit to this argument. The petitioner should have cross-examined respondents\u2019 witnesses on their bias if he wanted to impress this upon the jury. In Herndon v. Southern R. R. Co., 162 N.C. 317, 78 S.E. 287 (1913), at page 318, the court sustained a general instruction on the bias of witnesses by saying:\n\u201cThis is but an admonition to the jury, and not pointed to any particular witness or party. It applies with equal force to the defendant as to plaintiff, and to all witnesses alike .... In no sense can the charge quoted be considered as an expression of opinion upon the facts upon the part of the judge, and it is hard to see how it could be prejudicial to one party more than to the other.\u201d\nPetitioner\u2019s third assignment of error is overruled.\nNext, petitioner argues it was error for the trial court to tax the costs of respondents\u2019 expert witnesses to petitioner since they were not under subpoena. The court\u2019s power to tax costs is dependent upon statutory authorization, and G.S. 7A-314 provides that a subpoena is a condition precedent to the taxing of expert witness fees. State v. Johnson, 282 N.C. 1, 191 S.E. 2d 641 (1972) ; Couch v. Couch, 18 N.C. App. 108, 196 S.E. 2d 64 (1973).\nRespondents say they are aware of the Johnson case, supra, and do not argue that their witnesses were subpoenaed. Instead, respondents show that the witness fees were paid out by the court to the appropriate individuals on 2 November 1973. The court ordered payment of the witness fees on 11 October 1973, after the jury returned a verdict favorable to respondents. On 25 October 1973, judgment was entered and petitioner gave notice of appeal. Petitioner obtained proper extensions of time to serve his case on appeal, but he inadvertently failed to obtain an extension of time to docket his case on appeal and had to petition for a writ of certiorari. Respondents argue that the payment of the fees coupled with petitioner\u2019s failure to appeal amounts to a waiver or abandonment of petitioner\u2019s right to appeal this issue.\nTwo cases are relevant on this point. North Carolina follows the rule'that the waiver of the right to appeal, like most waivers, must be voluntary and intentional. Luther v. Luther, 234 N.C. 429, 67 S.E. 2d 345 (1951) ; Bank v. Miller, 184 N.C. 593, 115 S.E. 161 (1922). In Miller, supra, at page 597, the court quoted 2 Cyc. Law & Pro., 647, with approval:\n\u201c \u2018Voluntary payment or performance of a judgment is generally held to be no bar to appeal, or writ of error for its reversal, unless such payment was made by way of compromise and agreement to settle the controversy, or unless the payment or performance of the judgment was under peculiar circumstances which amounted to a confession of its correctness.\u2019 \u201d\nIn the case at bar, the petitioner had never, by his actions, confessed the correctness of the order allowing the witness fees. Instead, he was appealing directly to this Court, and the respondents were aware of this. The petition for writ of certiorari was not so unreasonably delayed as to indicate an intentional abandonment of his appeal. In fact, it was filed soon after the original ninety day period for docketing in this Court had expired. Also, it seems advisable for condemnors to pay the amount of a judgment to the clerk of court in order to escape the adversity of G.S. 40-19 which in effect provides that a condemnor\u2019s right to take property is lost if the final judgment is not paid within one year. Furthermore, this Court has interpreted G.S. 40-19 to permit the condemnee to withdraw, with the trial court\u2019s approval, an amount paid into the court by the condemnor pending appeal. Public Service Co. v. Lovin, 9 N.C. App. 709, 177 S.E. 2d 448 (1970). From the above circumstances, it does not appear that the petitioner has voluntarily or intentionally abandoned his right to appeal the issue of expert witness fees. The burden is on the respondents Weatherman to show that the appeal has been abandoned or waived. Bank v. Miller, supra. They have not carried the burden of proof. Therefore, since the original order on the payment of expert witness fees is in error and the petitioner has not abandoned this issue, we vacate the order taxing expert witness fees to the petitioner.\nIn his fifth and last assignment of error, the petitioner contends it was error for the trial court to award counsel fees to respondents Weatherman on a contingent fee basis. The face of the record reveals that the trial court determined counsel fees by taking one-third of the difference between what the Redevelopment Commission had offered the landowners ($11,000.00) and the jury verdict ($25,400.00). G.S. 160-456 (10) (h) (3) gives the trial court authority to include counsel fees as part of the costs, but it only provides for \u201creasonable counsel fees\u201d. A case in point is Redevelopment Comm. v. Hyder, 20 N.C. App. 241, 201 S.E. 2d 236 (1973) where this Court said at pages 245 and 246:\n\u201cThe use by the court in this case of the contingent fee as the sole guide for a determination of reasonable counsel fees when there is no possibility that the attorney fee may go unpaid does not meet the statutory standard. There are numerous factors for consideration in fixing reasonable attorney fees \u2014 the kind of case, the value of the properties in question, the complexity of the legal issues, the time and amount involved, fees customarily charged for similar services, the skill and experience of the attorney, the results obtained, whether the fee is fixed or contingent, all afford guidance in reaching the amount of a reasonable fee.\u201d (Emphasis added.)\nThe face of the record in this case shows a determination of counsel fees that is almost identical to the trial court\u2019s determination in Ryder, supra, which was disapproved by this Court. Counsel for respondents makes the same argument of waiver of the right to appeal this issue due to the 2 November 1973 payment of counsel fees ordered,by the trial court. There is no waiver to appeal this issue for the same reasons as previously set out.\nA. In the trial and judgment as it relates to just compensation, we find no error.\nB. The order allowing expert witness fees is vacated.\nC. The order fixing counsel fees is vacated and the matter is remanded for a determination of reasonable counsel fees.\nChief Judge Brock and Judge Morris concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Hatfield and Allman, by James W. Armentrout, for petitioner appellant.", "White and Crumpler, by Michael J. Lewis and James G. White, for respondents appellees." ], "corrections": "", "head_matter": "REDEVELOPMENT COMMISSION OF WINSTON-SALEM v. CLARA BELLE LEGRAND WEATHERMAN and husband, ROMULOUS T. WEATHERMAN\nNo. 7421SC441\n(Filed 2 October 1974)\n1. Eminent Domain \u00a7 6\u2014 sales price of nearby tract \u2014 exclusion\nIn a proceeding to condemn land for urban renewal, the trial court did not err in the exclusion of petitioner\u2019s evidence of the sales price of a nearby tract which was only 1/5 the size of the condemned land and which contained two buildings while the condemned land contained three buildings.\n2. Trial \u00a7 13\u2014 condemnation proceeding \u2014 denial of jury view\nThe trial court did not err in the denial of petitioner\u2019s motion for a jury view of property condemned for urban renewal. G.S. 1-181.1.\n3. Trial \u00a7 37\u2014 instructions on interested witnesses\n\u25a0 In a condemnation proceeding, the trial court did not err in instructing the jury to scan the testimony of interested witnesses with care and caution without further instructing the jury which witnesses were interested and without telling the jury that the court was referring to the witnesses for both sides.\n4. Gosts \u00a7 4\u2014 expert witness fees \u2014 necessity that witnesses be subpoenaed\nThe trial court in a condemnation proceeding erred in taxing the costs of respondents\u2019 expert witnesses to petitioner since the witnesses were not under subpoena. G.S. 7A-314.\n5. Appeal and Error \u00a7 2; Waiver \u00a7 3\u2014 expert witness fees \u2014 waiver of right to appeal issue \u2014 payment of fees \u2014 failure to extend time for docketing appeal\nPetitioner in a condemnation proceeding did not waive the right to appeal the issue of the taxing of the costs of respondents\u2019 expert witnesses to petitioner by the payment of such fees into court and the failure to obtain an extension of time to docket the record on appeal, thus necessitating a petition for certiorari to obtain appellate review of the case.\n6. Attorney and Client \u00a7 7; Costs \u00a7 4\u2014 condemnation proceeding\u2014 attorney fees \u2014 use of contingent fee\nIn a condemnation proceeding instituted by a redevelopment commission, the trial court erred in determining counsel fees to be awarded to respondents by taking one-third of the difference between what the redevelopment commission had offered respondents and the amount of the jury verdict. G.S. 160-456(10) (h) (3).\nOn writ of certiorari to review a trial before Wood, Judge, 8 October 1978 Civil Session, Forsyth County Superior Court. Argued in the Court of Appeals on 26 August 1974.\nThe Winston-Salem Redevelopment Commission petitioned to condemn the respondents Weatherman\u2019s land for urban renewal. Commissioners of Appraisal were appointed to determine the amount of just compensation owed to the respondents. From an appraisal of $15,500.00, the respondents appealed to Superior Court for a jury trial on the issue of just compensation. The court entered judgment on the verdict for the payment of an award of $25,400.00 and ordered the petitioner to pay expert witness fees and counsel fees.\nHatfield and Allman, by James W. Armentrout, for petitioner appellant.\nWhite and Crumpler, by Michael J. Lewis and James G. White, for respondents appellees." }, "file_name": "0136-01", "first_page_order": 164, "last_page_order": 170 }