{ "id": 12168835, "name": "HIGH ROCK LAKE PARTNERS, LLC, a North Carolina Limited Liability Company, and JOHN DOLVEN, Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee", "name_abbreviation": "High Rock Lake Partners, LLC v. North Carolina Department of Transportation", "decision_date": "2014-06-17", "docket_number": "No. COA13-1010", "first_page": "336", "last_page": "341", "citations": [ { "type": "official", "cite": "234 N.C. App. 336" } ], "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": "622 S.E.2d 187", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634490 ], "year": 2005, "pin_cites": [ { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0187-01" ] }, { "cite": "617 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633720 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "50", "parenthetical": "citations omitted" }, { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0040-01" ] }, { "cite": "174 N.C. App. 714", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353103 ], "year": 2005, "pin_cites": [ { "page": "722" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0714-01" ] }, { "cite": "688 S.E.2d 791", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "202 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4175379 ], "year": 2010, "opinion_index": 0, "case_paths": [ "/nc-app/202/0441-01" ] }, { "cite": "28 U.S.C. \u00a7 2412", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1994, "pin_cites": [ { "page": "(d)(1)(A)" } ], "opinion_index": 0 }, { "cite": "172 N.C. App. 595", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8321099 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "610", "parenthetical": "citations omitted" }, { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0595-01" ] }, { "cite": "467 S.E.2d 675", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1996, "pin_cites": [ { "page": "678", "parenthetical": "emphasis added" }, { "page": "679" }, { "page": "679", "parenthetical": "emphasis changed" }, { "page": "678" }, { "page": "681" } ], "opinion_index": 0 }, { "cite": "342 N.C. 838", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796086 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "843", "parenthetical": "emphasis added" }, { "page": "843-44" }, { "page": "843" }, { "page": "841" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0838-01" ] }, { "cite": "540 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "780", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 203", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440648 ], "year": 2000, "pin_cites": [ { "page": "210", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0203-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "735 S.E.2d 300", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "306", "parenthetical": "\"High Rock III\"" } ], "opinion_index": 0 }, { "cite": "366 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4357012 ], "year": 2012, "pin_cites": [ { "page": "323", "parenthetical": "\"High Rock III\"" } ], "opinion_index": 0, "case_paths": [ "/nc/366/0315-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 136-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(29)" } ], "opinion_index": 0 }, { "cite": "720 S.E.2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2011, "pin_cites": [ { "parenthetical": "\"High Rock II'" } ], "opinion_index": 0 }, { "cite": "693 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "parenthetical": "\"High Rock 2\"" } ], "opinion_index": 0 }, { "cite": "204 N.C. App. 55", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176920 ], "year": 2010, "pin_cites": [ { "parenthetical": "\"High Rock 2\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/204/0055-01" ] } ], "analysis": { "cardinality": 643, "char_count": 14782, "ocr_confidence": 0.731, "pagerank": { "raw": 5.760985378192136e-08, "percentile": 0.360142811414874 }, "sha256": "0517c8e71788f9592178dc1152cfe4226ed7232ce25ad915d8605f73f11a2c94", "simhash": "1:a92a976fb56fd574", "word_count": 2349 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and ERVIN concur." ], "parties": [ "HIGH ROCK LAKE PARTNERS, LLC, a North Carolina Limited Liability Company, and JOHN DOLVEN, Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee" ], "opinions": [ { "text": "McGEE, Judge.\nHigh Rock Lake Partners, LLC (\u201cHigh Rock\u201d) purchased approximately 190 acres in Davidson County (\u201cthe property\u201d) in August 2005. High Rock intended to develop the property into a sixty-lot residential subdivision. High Rock purchased the property for $5,200,000.00. John Dolven, M.D. (\u201cDolven\u201d) provided $3,600,000.00 of the purchase price through a secured loan. High Rock and Dolven are petitioners (\u201cPetitioners\u201d) in this matter. In December 2005, the Davidson County Board of Commissioners approved the preliminary plat, based on High Rock\u2019s \u201cmeeting all the County requirements for subdivision approval.\u201d\nThe only way to access the property was by way of State Road 1135 (\u201cSR 1135\u201d), which was maintained by Respondent North Carolina Department of Transportation (\u201cDOT\u201d), as part of the State Highway System. As part of High Rock\u2019s initial development phase, it sought to extend SR 1135 \u2014 which dead-ended on the property \u2014 in order to provide a driveway connection into the planned subdivision.\nIn October 2005, High Rock applied to DOT for a permit to construct a driveway. The proposed driveway connection point was located on SR 1135, approximately one-quarter mile from a railroad crossing (\u201cthe railroad crossing\u201d). Due to the location of a railroad yard near the railroad crossing, idling locomotives sometimes blocked the crossing.\nIn a letter dated 12 December 2005, Chris Corriher, DOT District Engineer for Davidson County, denied High Rock\u2019s application. High Rock timely appealed this denial to DOT Division Engineer, Pat Ivey (\u201cIvey\u201d). Ivey granted High Rock\u2019s permit application, with the conditions that High Rock widen the railroad crossing and secure the necessary permissions from the railroad companies to do so. High Rock appealed DOT\u2019s conditions to the DOT Driveway Permit Appeals Committee (\u201cDOT Appeals Committee\u201d). The DOT Appeals Committee upheld the conditions set out by Ivey. High Rock filed a Petition for Judicial Review in Superior Court, Mecklenburg County, on 17 September 2007.\nDolven acquired the property through a foreclosure proceeding on 10 December 2007. High Rock assigned its rights in development approvals, including the driveway permit, to Dolven. High Rock sought to join Dolven as a party to the case pending in Mecklenburg County Superior Court. On 26 August 2008, the trial court ruled, inter alia, that Dolven could not be added as a party. The trial court also ruled that DOT\u2019s actions regarding the driveway permit were statutorily authorized but that the conditions related to High Rock\u2019s obtaining railroad consent were unconstitutional.\nDolven appealed and, on 18 May 2010, this Court vacated the trial court\u2019s 26 August 2008 ruling and remanded the case for a new hearing on the merits, with Dolven joined as a party. High Rock Lake Partners, LLC v. N.C. Dep\u2019t of Transp., 204 N.C. App. 55, 693 S.E.2d 361 (2010) (\u201cHigh Rock 2\u201d). The trial court, as directed by this Court, joined Dolven by order entered 1 November 2010 and, in judgment entered 24 November 2010, ruled that DOT had not acted (1) in excess of its statutory authority, (2) arbitrarily and capriciously, or (3) in violation of either the United States or North Carolina constitutions. Petitioners appealed, and this Court affirmed the judgment of the trial court. High Rock Lake Partners, LLC v. North Carolina DOT, _ N.C. App. _ , 720 S.E.2d 706 (2011) (\u201cHigh Rock II'). Our Supreme Court granted discretionary review and reversed High Rock II, determining that the conditions placed on the driveway permit were not authorized under the plain language of N.C. Gen. Stat. \u00a7 136-18(29), and holding that DOT had exceeded its statutory authority by imposing those conditions. High Rock Lake Partners, LLC v. N.C. Dept of Transp., 366 N.C. 315, 323, 735 S.E.2d 300, 306 (2012) (\u201cHigh Rock III\"). A more extensive factual and procedural history may be found in these prior opinions.\nPetitioners filed a motion for attorney\u2019s fees pursuant to N.C. Gen. Stat. \u00a7 6-19.1 on 14 January 2013. The trial court heard Petitioners\u2019 motion on 8 April 2013 and, in an order entered 22 May 2013, denied Petitioners\u2019 motion. Petitioners appeal.\nPetitioners argue that the trial court erred in denying their motion for attorney\u2019s fees based upon the trial court\u2019s conclusion that \u201cDOT\u2019s positions in this case from the initial denial of the driveway permit through to the Supreme Court\u2019s decision in High Rock [III] were substantially justified under G.S. \u00a7 6-19.1.\u201d Petitioners further argue that, because of this alleged error, this Court should instruct the trial court to award Petitioners their attorney\u2019s fees. We disagree.\nN.C. Gen. Stat. \u00a7 6-19.1 states in relevant part:\n(a) In any civil action,... unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees, including attorney\u2019s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:\n(1) The court finds that the agency acted without substantial justification in pressing its claim against the party; and\n(2) The court finds that there are no special circumstances that would make the award of attorney\u2019s fees unjust.\nN.C. Gen. Stat. \u00a7 6-19.1 (2013) (emphasis added). By the clear language of the statute, once the trial court makes the appropriate findings required in subsections (1) and (2) of N.C.G.S. \u00a7 649.1(a), its decision on whether or not to award attorney\u2019s fees is discretionary.\nIt is well settled that \u201c[a]ppellate review of matters left to the discretion of the trial court is limited to a determination of whether there was a clear abuse of discretion.\u201d Furthermore, \u201c[a] trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.\u201d \u201cA ruling committed to a trial court\u2019s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.\u201d\nSmith v. Beaufort County Hosp. Ass\u2019n., 141 N.C. App. 203, 210, 540 S.E.2d 775, 780 (2000) (citations omitted). In Crowell Constructors, Inc. v. State ex rel. Cobey, our Supreme Court has recognized the prerequisites required before a trial court can exercise its discretion to award attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-19.1, as follows:\nThus, in order for the trial court to exercise its discretion and award reasonable attorney\u2019s fees to a party contesting State action in one of the prescribed ways, the prevailing party must not be the State, the trial court must find the State agency acted \u201cwithout substantial justification\u201d in pressing its claim and the trial court must find no special circumstances exist which make an award of attorney\u2019s fees unjust.\nCrowell Constructors, Inc. v. State ex rel Cobey, 342 N.C. 838, 843, 467 S.E.2d 675, 678 (1996) (emphasis added). Stated another way, if the trial court determines that: (1) a State agency acted \u201cwithout substantial justification,\u201d and (2) no special circumstances exist which make an award of attorney\u2019s fees unjust, then the trial court\u2019s discretionary power to award attorney\u2019s fees manifests. The trial court is not, however, required to award attorney\u2019s fees subsequent to making these determinations, and its discretionary decision to award or not to award attorney\u2019s fees may only be overturned upon a showing that its decision constituted an abuse of its discretion. However, if the trial court determines that the State agency did not act \u201cwithout substantial justification,\u201d or that some special circumstances do exist which make an award of attorney\u2019s fees unjust, then the trial court lacks discretion, and cannot award attorney\u2019s fees.\nThe trial court, in its 22 May 2013 order, acknowledged that it only had discretion to award attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-19.1 if it found that DOT acted without substantial justification and no special circumstances existed that made the award of attorney\u2019s fees unjust. The trial court found as fact that DOT did not argue the \u201cspecial circumstances\u201d prong of N.C.G.S. \u00a7 6-19.1. The trial court then concluded that DOT \u201cwas justified [in its handling of this action] to a degree that could satisfy a reasonable person[.]\u201d It further concluded, \u201cin its discretion, that attorney\u2019s fees should not be awarded in this matter.\u201d\nIn this instance, even assuming, arguendo, the trial court erred in concluding that DOT acted with substantial justification, the trial court also denied the award of attorney\u2019s fees in its discretion. Because the discretion to award attorney\u2019s fees could only be present absent a conclusion that DOT acted with substantial justification, the trial court\u2019s conclusion that, \u201cin its discretion, . . . attorney\u2019s fees should not be awarded in this matter[,]\u201d constitutes an alternative basis for the denial of Petitioners\u2019 motion.\nThe standard of review for the trial court\u2019s decision not to award attorney\u2019s fees on this basis is abuse of discretion, and it is Petitioners\u2019 duty to prove abuse of discretion in order to prevail on appeal. Nationwide Mut. Fire Ins. Co. v. Bourlon, 172 N.C. App. 595, 610, 617 S.E.2d 40, 50 (2005) (citations omitted) (\u201cTo show an abuse of discretion and reverse the trial court\u2019s order... appellant[] has the burden to show the trial court\u2019s rulings are \u201c \u2018manifestly unsupported by reason,\u2019 \u201d or \u2018\u201ccould not be the product of a reasoned decision[.]\u2019\u201d). Petitioners have not argued that the trial court abused its discretion by refusing to award them attorney\u2019s fees.\nIt appears Petitioners believe that the trial court was required to award them attorney\u2019s fees if DOT acted without substantial justification in pressing its claim and no special circumstances existed which made an award of attorney\u2019s fees unjust. Petitioners cite Crowell Constructors for the proposition that DOT had to prove that its pursuit of this action was substantially justified; otherwise, according to Petitioners, the trial court was required to order DOT to pay Petitioners\u2019 attorney\u2019s fees. In support of their argument, Petitioners cite to a portion of CroweU Constructors in which our Supreme Court looked to similar language in a federal statute to define the term \u201csubstantial justification.\u201d Crowell Constructors, 342 N.C. at 843-44, 467 S.E.2d at 679. However, the federal statute differs from N.C.G.S. \u00a7 6-19.1 in a major respect. The federal statute states:\n\u201cExcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action ... brought by or against the United States ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.\u201d\nCrowell Constructors, 342 N.C. at 843, 467 S.E.2d at 679 (emphasis changed), (quoting 28 U.S.C. \u00a7 2412(d)(1)(A) (1994)). The federal statute makes the award of attorney\u2019s fees mandatory absent the proper showing of substantial justification or special circumstances, whereas N.C.G.S. \u00a7 6-19.1 grants the trial court discretion in making an award of attorney\u2019s fees. N.C.G.S. \u00a7 6-19.1(a) (\u201c[T]he court may, in its discretion, allow the prevailing party to recover reasonable attorney\u2019s fees[.]\u201d).\nIn Crowell Constructors, unlike in the present case, the trial court had already ordered the State agency to pay attorney\u2019s fees to the prevailing party. Crowell Constructors, 342 N.C. at 841, 467 S.E.2d at 678. Therefore, if the State agency could show on appeal that it had acted with substantial justification in pressing its claim, it would show that the trial court had lacked the discretion to impose attorney\u2019s fees and had therefore erred. Our Supreme Court held that it could not say that the State agency was \u201cwithout substantial justification.\u201d Id. at 846, 467 S.E.2d at 681. Therefore, the award of attorney\u2019s fees had been improper. Id. Another opinion cited by Petitioners, Daily Express, Inc. v. Beatty, 202 N.C. App. 441, 688 S.E.2d 791 (2010), is similarly inapposite because it also dealt with an appeal where the trial court awarded attorney\u2019s fees, not an appeal from the trial court\u2019s refusal to award attorney\u2019s fees. Id. at 456, 688 S.E.2d at 802 (\u201c[W]e conclude that [respondent's decision to proceed against [p]etitioner was \u2018substantially justified\u2019 and that the trial court erred by reaching a contrary conclusion in awarding attorney\u2019s fees to [p]etitioner pursuant to N.C. Gen. Stat. \u00a7 6-19.1\u201d[.[).\nIn the present matter, even assuming arguendo DOT lacked substantial justification in pressing its claims, Petitioners would have had to argue on appeal and show that the trial court abused its discretion in denying Petitioners\u2019 motion for attorney\u2019s fees. Bourlon, 172 N.C. App. at 610, 617 S.E.2d at 50; see also Witten v. Hewson, 174 N.C. App. 714, 722, 622 S.E.2d 187, 193 (2005). Because Petitioners have not argued on appeal that the trial court abused its discretion in failing to award them attorney\u2019s fees pursuant to N.C.G.S. \u00a7 6-19.1, any such argument is abandoned. N.C.R. App. P. 28(b)(6) (\u201cIssues not presented in a party\u2019s brief, or in support of which no reason or argument is stated, will be taken as abandoned.\u201d). Petitioners\u2019 argument is dismissed.\nBecause Petitioners\u2019 second and third arguments rely upon the success of their first, those arguments also fail. The 22 May 2013 order denying attorney\u2019s fees is affirmed.\nAffirmed.\nJudges STEELMAN and ERVIN concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Van Winkle, Buck, Wall, Starnes and David, P.A., by Craig D. Justus, for Petitioners-Appellants.", "Attorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., Assistant Attorney General Scott K. Beaver, and Assistant Attorney General Jennifer S. Watson, for Respondent-Appellee." ], "corrections": "", "head_matter": "HIGH ROCK LAKE PARTNERS, LLC, a North Carolina Limited Liability Company, and JOHN DOLVEN, Petitioners-Appellants v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Respondent-Appellee\nNo. COA13-1010\nFiled 17 June 2014\nAppeal and Error\u2014preservation of issues\u2014failure to argue\u2014 abuse of discretion\u2014attorney fees\nAlthough petitioners contended that the trial court erred by denying their motion for attorney fees, petitioners failed to argue on appeal that the trial court abused its discretion, and thus, any such argument was abandoned. Further, because petitioners\u2019 second and third arguments relied upon the success of their first, those arguments also failed.\nAppeal by Petitioners from order entered 22 May 2013 by Judge Richard D. Boner in Superior Court, Mecklenburg County. Heard in the Court of Appeals 4 March 2014.\nVan Winkle, Buck, Wall, Starnes and David, P.A., by Craig D. Justus, for Petitioners-Appellants.\nAttorney General Roy Cooper, by Special Deputy Attorney General James M. Stanley, Jr., Assistant Attorney General Scott K. Beaver, and Assistant Attorney General Jennifer S. Watson, for Respondent-Appellee." }, "file_name": "0336-01", "first_page_order": 346, "last_page_order": 351 }