City of Durham v. Lyckan Development Corp. , 26 N.C. App. 210 ( 1975 )

215 S.E.2d 814 (1975) 26 N.C. App. 210

CITY OF DURHAM
v.
LYCKAN DEVELOPMENT CORPORATION et al.

No. 7514SC215.

Court of Appeals of North Carolina.

June 18, 1975.

Rufus C. Boutwell, Jr., Durham, for plaintiff-appellant.

Powe, Porter, Alphin & Whichard, P. A. by Edward L. Embree, III, Durham, for defendants-appellees.

BRITT, Judge.

PLAINTIFF'S APPEAL

Plaintiff contends Judge Clark erred in allowing defendant to make eight separate motions simultaneously, without any reference to any rule of civil procedure, to receive defendant's written argument on those motions, and then restrict the hearing to a single motion. We find no merit in the contention.

This contention pertains to defendant's "Motion in the Cause" filed 23 October 1973. In its motion, defendant asked that the complaint be dismissed for the reasons that (1) the court lacked jurisdiction over the subject matter of the action, (2) plaintiff was following unauthorized and unconstitutional procedures, and (3) there was insufficient service of process. Defendant also asked for injunctive relief. In the alternative, defendant asked that the return on the summons be amended to show the correct date of service on defendant ". . if such can be determined". It further asked in the alternative that if the action was not dismissed that defendant be allowed to file an amendment to its answer and allege a counterclaim. Plaintiff and defendant each proceeded to file a memorandum of law and a brief in support of their respective motions and in defense of their respective positions on the other's motions.

The gist of plaintiff's argument on this contention is that defendant did not cite the number of any rule under which it was moving, and plaintiff was greatly inconvenienced in having to prepare for a hearing on all facets of defendant's motion and the court allowed defendant to proceed on only one of them, namely, the claim of insufficiency of service of process.

Rule 6 of the General Rules of Practice for the Superior and District Courts provides that all motions, whether written or oral, shall state the rule number or numbers under which the movant is proceeding and makes reference parenthetically to Rule 7 of the Rules of Civil Procedure. G.S. § 1A-1, Rule 7(b)(1) provides that motions, unless made during a hearing or trial or at a session at which a cause is on the calendar for that session, shall be made in writing, shall state the grounds therefor, and shall set forth the relief or order sought. While defendant failed to comply with rule 6 of the trial court rules, it fully complied with G.S. § 1A-1, Rule 7(b)(1). Assuming, arguendo, that defendant erred in not stating the rule number, we perceive no prejudice to plaintiff. We are not impressed with plaintiff's argument that it suffered inconvenience in having to prepare to defend on all aspects of defendant's motion.

Plaintiff contends the court erred in concluding that defendant was not properly served with process on 8 August 1972. The essence of plaintiff's argument on this contention is that the evidence did not support the conclusion. We note that plaintiff did not except to any finding of fact, therefore, this court will assume that the facts found are correct and are supported by the evidence, and the appeal will be determined in accordance with those findings. 1 Strong, N.C. Index 2d, Appeal and Error, § 28, at 160. The question then arises, do the findings of fact support the conclusion of law that defendant was not properly served with process on 8 August 1972? We answer in the affirmative.

Plaintiff argues that process was served in compliance with G.S. § 1A-1, Rule 4(j)(6)a which provides that service may be had "By delivering a copy of the summons and of the complaint to an officer, director, or managing agent of the corporation or by leaving copies thereof in the office of such officer, director, or managing agent with the person who is apparently in charge of the office". The return states that process was served on defendant's president but the court found as fact that defendant's president was not in Durham County at 5:45 p. m. on 8 August 1972. This brings us to consider whether a copy of the summons and complaint was left in the office of an officer, director, or managing agent of defendant corporation with the person who was apparently in charge of the office.

The court found as fact that on 8 August 1972 defendant corporation was using the residence of its president (1008 North Guthrie Avenue, Durham) as its temporary place of business, and that on the date and at the hour above stated, the deputy sheriff delivered process to a male person, whose identity is unknown, at said address. In its supplementary order (entered 15 January 1974) the court further found that the man at the residence answered the doorbell when the deputy rang it, was white, approximately 55 years of age, represented himself to be the president of defendant corporation, and was the only person the deputy saw on the premises. The court further found that 5:45 p. m. was after normal business hours for the conducting of business at said address. Even considering the additional facts set forth in the supplementary order, we think the facts found by the court were sufficient to support its conclusion of law that process was not properly served on defendant. While the evidence might have warranted different findings of fact, that was a prerogative of the trial judge.

Plaintiff contends the court erred in concluding that defendant, by filing its petition for disbursement of funds on 23 August 1972, did not waive or was not estopped from contesting the date of service of process. We hold that this conclusion of law is fully supported by the findings of fact.

Plaintiff contends the court erred in ruling that defendant's answer, filed on 20 August 1973, was filed in apt time. We hold that the court's ruling is fully supported by its conclusions of law, which conclusions are supported by the findings of fact.

We have not overlooked defendant's contention that in the stipulation with respect to the record on appeal counsel for the parties stipulated that "[a]ll pleadings herein were properly and timely filed . . ." Defendant argues that the stipulation renders moot the crucial question with respect to its answer being filed within the time allowed by statute. In view of our holding hereinbefore set out, we do not reach defendant's contention involving the stipulation.

Finally, by its assignment of error No. 9, plaintiff contends the court at trial erred in refusing to admit into evidence a map prepared by the U. S. Corps of Engineers in 1965 depicting certain floodway zones for the land in question and surrounding areas, when counsel, in the order on final pretrial conference, had stipulated to the admissibility of the map. This assignment has merit.

The "ORDER ON FINAL PRE-TRIAL CONFERENCE" entered by Judge Hall on 16 December 1974 contains the following provision (paragraph 6): "It is stipulated and agreed that each of the exhibits identified by the Plaintiff is genuine, and, if relevant and material, may be received in evidence without further identification or proof." The map above referred to is one of the exhibits covered by the stipulation.

Pretrial stipulations duly entered into by the parties are binding upon them. Quinn v. Thigpen, 266 N.C. 720, 147 S.E.2d 191 (1966). We then consider whether the map which plaintiff sought to introduce was relevant and material. "Strictly speaking, evidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case. . . ." 1 Stansbury, N.C. Evidence, § 77, at 234 (Brandis rev. 1973).

We think the map contained information which was relevant and material to the issue being tried, namely, the damages sustained by defendant by the taking of its property by plaintiff. Defendant offered evidence tending to show that its land was capable of high type commercial development. Plaintiff, on the other hand, offered evidence tending to show that a creek ran through defendant's property and that the land taken was in an area that was subject to flooding. Certainly, the map contained information bearing on the question of whether the area was subject to flooding. Absent the stipulation, the laying of considerable foundation would have been necessary to render the map admissible in evidence, but the stipulation removed all grounds of objection by defendant except that of relevancy and materiality.

We also think the court's error in excluding the map was sufficiently prejudicial to entitle plaintiff to a new trial on the issue of amount of damages.

DEFENDANT'S APPEAL

Defendant's appeal raises only one question: Whether the court erred in entering its 15 January 1974 "SUPPLEMENTARY ORDER" amending its 10 January 1974 order. In view of our holding set forth above that even considering the additional findings set forth in the supplementary order, the conclusions of law were supported by the findings of fact, we find it unnecessary to pass upon the question raised by defendant's appeal.

* * * * * *

For the reasons stated, the orders entered by Judge Clark from which plaintiff and defendant appealed are affirmed; the judgment entered by Judge Hall from which plaintiff appealed is reversed and a new trial is ordered on the issue of amount of damages.

New trial.

PARKER and VAUGHN, JJ., concur.