An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-756
                       NORTH CAROLINA COURT OF APPEALS

                                Filed:    6 May 2014


ROANOKE COUNTRY CLUB, INC., T&J
PROPERTIES, LLC, ROBERT R. MARTIN
AND WIFE, THERESA W. MARTIN AND
REGINALD W. ROSS, JR. AND WIFE,
DELORES ROSS,
     Petitioners

      v.                                      Martin County
                                              No. 10 CVS 374
TOWN OF WILLIAMSTON,
     Respondent


      Appeal by petitioners from order entered 29 February 2012

and judgment entered 18 February 2013 by Judge Marvin K. Blount,

III in Martin County Superior Court.                  Heard in the Court of

Appeals 11 December 2013.


      Eldridge Law Firm, PC,                by    James    E.    Eldridge,      for
      petitioner-appellants.

      Sharp, Michael, Graham & Baker, LLP, by Ronald G. Baker,
      for respondent-appellee.


      CALABRIA, Judge.


      Petitioners appeal from (1) the trial court’s judgment in

favor of the Town of Williamston (“respondent”), which affirmed

respondent’s annexation ordinance (“the ordinance”); and (2) the
                                         -2-
trial    court’s    order    awarding        sanctions      to   respondent      due   to

petitioners’       failure   to   comply        with    the      Rules    Implementing

Statewide      Mediated     Settlement        Conferences        in   Superior      Court

Civil Actions (“the mediation rules”).                 We affirm.

                                  I. Background

     On    5   January    2009,   respondent          adopted     a   “Resolution      of

Consideration”       identifying        an     area    of     land    for    potential

annexation      (“the     annexation     area”).            On   11   January       2010,

respondent adopted a “Resolution of Intent” which described the

boundaries of the annexation area and fixed the dates for a

public    informational      meeting     and     public     hearing.        Respondent

also adopted an annexation report which stated that the degree

of   coincidence        between   the        annexation      area’s      boundary      and

respondent’s corporate limits was 20.49%.                         A portion of the

proposed boundary of the annexation area ran along a private

road known as Courtney Lane.

     Respondent conducted a public informational meeting on 1

March 2010 and a public hearing on 5 April 2010.                      On 3 May 2010,

respondent adopted an annexation ordinance for the annexation

area with an effective date of 3 September 2010.                         Prior to that

date, on 1 July 2010, petitioners, who own real property within
                                           -3-
the    annexation         area,   filed    a     petition    for     review      of   the

annexation in Martin County Superior Court.

       The case was mediated on 1 September 2011.                          Petitioners

Theresa W. Martin (“Mrs. Martin”) and Delores Ross (“Mrs. Ross”)

did not attend this mediation.                   In addition, no one with the

authority to settle the case on behalf of petitioners Roanoke

Country Club, Inc. (“RCC”) and T&J Properties, LLC, (“T&J”) was

present.    During the mediation, respondent was informed that any

agreement made during the course of the mediation would need to

be    approved       by   a   voluntary    association      known    as    the    Martin

County    Citizens        Against    Annexation      (“MCCAA”),       of    which     all

petitioners were members, and by the Board of Directors of RCC.

The parties that were actually present at the mediation were

able to negotiate a preliminary settlement agreement.                         However,

this agreement was subsequently rejected by MCCAA.

       On 19 October 2011, respondent filed a motion for sanctions

against petitioners due to the failure of all petitioners to

attend the mediated settlement conference as required by N.C.

Gen.   Stat.     §    7A-38.1     (2013)   and    Rule   4.A.   of    the     mediation

rules.     On 29 February 2012, the trial court entered an order

sanctioning petitioners and ordering them to pay $4,235.15 in
                                        -4-
attorney’s fees.       In addition, Mrs. Martin and Mrs. Ross were

fined $1,000.00.

       After the mediated settlement agreement was rejected, the

petition challenging the annexation was heard by the trial court

in October 2012.           On 18 February 2013, the court entered a

judgment affirming the annexation.              Petitioners appeal.

                                II.     Annexation

       Petitioners argue that the trial court erred by affirming

respondent’s annexation.          Specifically, petitioners contend (1)

that    the   trial    court      erred       by    admitting      into    evidence

respondent’s trial exhibit 17; and (2) that the trial court

erred by finding and concluding that respondent complied with

all relevant annexation statutes.

       A. Trial Exhibit 17

       Petitioners    first     argue    that      the   trial    court   erred    by

admitting respondent’s exhibit 17, a map of the annexation area

from 2010,       into evidence because the probative value of the

exhibit    was    outweighed     by     unfair      prejudice.       However,      as

petitioners      concede   in   their     brief,     they   did    not    object   to

respondent’s exhibit 18, a map of the annexation area in 2012,

which is virtually identical to the map depicted in exhibit 17.

While petitioners appear to be under the impression that it was
                                            -5-
unnecessary to object to exhibit 18 because the “damage [was]

already done” by the introduction of exhibit 17, it is well-

established        that     “[w]hen     .   .    .    evidence        is    admitted       over

objection, but the same or similar evidence has been previously

admitted or is later admitted without objection, the benefit of

the objection is lost.” City of Statesville v. Cloaninger, 106

N.C.     App.   10,       17,    415    S.E.2d       111,     115-16       (1992)(internal

quotations      and    citation        omitted    and       emphasis       added).        Since

petitioners did not object to exhibit 18, they cannot argue on

appeal      that      the       substantially         similar         exhibit        17    was

inadmissible.         This argument is overruled.

       B.   Compliance with Annexation Statutes

       Petitioners        next    argue     that      the     trial    court     erred      by

finding and concluding that respondent complied with all of the

requirements of the statutes governing annexation.                           We disagree.

       Judicial review of an annexation ordinance is limited to

             a   determination   of   whether    applicable
             annexation statutes have been substantially
             complied with. When the record submitted in
             superior court by the municipal corporation
             demonstrates,   on   its   face,   substantial
             compliance with the applicable annexation
             statutes, then the burden falls on the
             petitioners   to   show   by   competent   and
             substantial evidence that the statutory
             requirements were in fact not met or that
             procedural   irregularities   occurred   which
             materially   prejudiced    their   substantive
                                       -6-
            rights.
                 In determining the validity of an
                 annexation ordinance, the court's
                 review is limited to the following
                 inquiries:     (1)     Did      the
                 municipality   comply   with    the
                 statutory procedures? (2) If not,
                 will    the   petitioners    suffer
                 material injury thereby? (3) Does
                 the area to be annexed meet the
                 requirements of G.S. 160A-48 . .
                 .?

Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 15, 356

S.E.2d     599,   601    (1987)   (internal    quotations    and    citations

omitted).     “The party challenging the annexation has the burden

of showing error.” In re Annexation Ordinance, 296 N.C. 1, 10,

249 S.E.2d 698, 703 (1978).

    Initially,      we    note    that   our   annexation    statutes      were

significantly overhauled in 2011. See 2011 N.C. Sess. Law 396.

However,    the   annexation      at   issue   in   the   instant   case   was

initiated prior to this overhaul, and consequently, respondent

was required to comply with the requirements established by the

previous version of the annexation statutes.                In the instant

case, petitioners contend that respondent failed to satisfy the

requirements included in N.C. Gen. Stat. § 160A-48 & -49 (2009).

    1.     N.C. Gen. Stat. § 160-49

    Pursuant to N.C. Gen. Stat. § 160A-49,
                                           -7-
            [a]t least 30 days before the date of the
            public informational meeting, the governing
            board shall approve the report provided for
            in G.S. 160A-47, and shall make it available
            to the public at the office of the municipal
            clerk.   In addition, the municipality may
            prepare a summary of the full report for
            public distribution.

N.C. Gen. Stat. § 160A-49(c) (2009).                      At the hearing reviewing

the   annexation    ordinance,       petitioners          Robert    R.    Martin     (“Mr.

Martin”) and Reginald W. Ross, Jr. (“Mr. Ross”) each testified

before the trial court that they were unable to obtain full

copies of the annexation report from respondent.                         However, N.C.

Gen. Stat. § 160A-49(c) does not require that a complete copy of

the annexation report be made available for distribution to the

public.     Instead, the statute only requires that the complete

report be made available to the public at the office of the

municipal clerk.          Respondent’s town clerk, Glinda Fox (“Fox”),

specifically      testified       that     the     full    annexation       report    was

available    in    her    office     for     the    required       statutory     period.

Fox’s   testimony    was        sufficient    to    support     the      trial   court’s

finding and conclusion that respondent complied with N.C. Gen.

Stat. § 160A-49.         This argument is overruled.

      2. N.C. Gen. Stat. § 160A-48

      Petitioners        next    argue     that    the     trial    court    erred     by

finding     and   concluding        that     respondent        complied      with     the
                                          -8-
requirements     of     N.C.    Gen.     Stat.   §   160A-48.           Specifically,

petitioners      contend       that     respondent’s    annexation        failed    to

comply with N.C. Gen. Stat. § 160A-48(e), which requires that

“[i]n   fixing    new    municipal       boundaries,    a   municipal      governing

board   shall     use     recorded       property      lines      and    streets    as

boundaries.”      Petitioners contend that respondent’s annexation

violated this requirement because (1) the boundary line for the

annexed area crosses streets; and (2) the boundary line runs

along a private road known as Courtney Lane.

     a. Crossing Streets

     Petitioners first argue that                annexation boundaries which

cross over streets are not permitted by N.C. Gen. Stat. § 160A-

48(e) because “[w]hen read in conjunction with using recorded

property lines in fixing the boundary, the language dictates

that the boundary is properly established when it follows the

street and not when it crosses over it.”                    However, petitioners

fail to cite any authority for this proposition.                           N.C. Gen.

Stat.   §   160A-48(e)         simply    requires    the    use    of    streets    as

boundaries.        It    does     not     specify    that    the    boundary       must

continuously follow a particular side of a street and this Court

cannot judicially impose such a requirement.                       See Zaldana v.

Smith, ___ N.C. App. ___, ___, 749 S.E.2d 461, 463 (2013)(“We
                                        -9-
have no power to add to or subtract from the language of the

statute.” (internal quotations and citation omitted)).                    Instead,

the statute allows for the annexation boundary to follow along

any part of the street, so long as the boundary is actually

included within the street.            Cf. Capps v. City of Kinston, 215

N.C. App. 110, 122, 715 S.E.2d 520, 528 (2011)(invalidating an

annexation boundary because it ran parallel to, rather than on,

a street).      Thus, respondent’s annexation, with boundaries which

followed      recorded      property     lines     and   which     crossed      but

continuously     remained     upon     some   portion    of    various    streets,

complied      with   N.C.   Gen.     Stat.    §   160A-48(e)     (2009).       This

argument is overruled.

       b.   Use of Private Road

       Petitioners next argue that the use of the private street

Courtney Lane as a boundary was not permitted by N.C. Gen. Stat.

§ 160A-48(e).        Petitioners’ argument is another attempt to add a

requirement that is not specifically included in that statute.

N.C.   Gen.    Stat.    §   160A-48(e)    merely    requires     the     use   of   a

“street” as a boundary; there is no requirement that the street

be designated as public.           In contrast, there are many examples

of statutes which specifically apply only to public roads.                     See,

e.g., N.C. Gen. Stat. § 160A-300 (2013)(“A city may by ordinance
                                          -10-
prohibit,       regulate,      divert,   control,    and     limit      pedestrian    or

vehicular traffic upon the public streets, sidewalks, alleys,

and bridges of the city.” (emphasis added)).                      Since there is no

specific “public” limitation in N.C. Gen. Stat. § 160A-48(e), we

cannot judicially impose one.                See Zaldana, ___ N.C. App. at

___, 749 S.E.2d at 463.

       In the instant case, the trial court specifically found

that “Courtney Lane is a street.”                 The court additionally found

that Courtney Lane served as a method of ingress and egress from

three    homes,        including   the    sole    method     of    access     for    one

property,       that    Courtney   Lane     was   also    used    for    construction

access, and that it would be used to access a shopping center in

the    future.         These    findings,    which       were    supported     by    the

evidence presented to the trial court, adequately support the

trial    court’s       determination      that    Courtney      Lane    was   properly

considered a street for purposes of N.C. Gen. Stat. § 160A-

48(e).    This argument is overruled.

       Since we have rejected each of petitioners’ arguments, we

hold     that     the     trial    court     properly       upheld       respondent’s

annexation and affirm the trial court’s judgment.

                            III.   Mediation Sanctions
                                     -11-
       Petitioners argue that the trial court erred by ordering

sanctions      for   the   failure   of     some    petitioners   to   attend

mediation.      We disagree.

       Pursuant to N.C. Gen. Stat. § 7A-38.1(g),

              [a]ny person required to attend a mediated
              settlement conference or other settlement
              procedure under this section who, without
              good cause, fails to attend . . . in
              compliance with this section and the rules
              promulgated   by   the   Supreme Court   to
              implement this section is subject to . . .
              monetary sanctions imposed by a resident or
              presiding superior court judge.

N.C.   Gen.    Stat.   §   7A-38.1(g)     (2013).     Rule   4.A.(1)   of   the

mediation rules specifies that a mediation must be attended by

“[a]ll individual parties” and          that

              [a]ny party that is not a natural person or
              a governmental entity shall be represented
              at the conference by an officer, employee or
              agent who is not such party’s outside
              counsel and who has been authorized to
              decide on behalf of such party whether and
              on what terms to settle the action or who
              has been authorized to negotiate on behalf
              of such party and can promptly communicate
              during the conference with persons who have
              decision-making authority to settle the
              action[.]

Regarding corporate parties, the rule further specifies that

              if a specific procedure is required by . . .
              the   party’s   governing   documents   (e.g.,
              articles     of     incorporation,     bylaws,
              partnership     agreement,     articles     of
              organization or operating agreement) to
                                   -12-
            approve the terms of the settlement, then
            the representative shall have the authority
            to negotiate and make recommendations to the
            applicable approval authority in accordance
            with that procedure.

       A. Mrs. Martin and Mrs. Ross

       In the instant case, it is undisputed that neither Mrs.

Martin nor Mrs. Ross attended the mediation.              Petitioners filed

an affidavit from Mr. Martin in which he attempted to explain

Mrs.    Martin   and   Mrs.   Ross’s    absence    by    averring    that     he

“obtained   authority    from   [his]     wife    to    appear   .   .   .   and

negotiate on her behalf” and that he understood that Mr. Ross

“was likewise authorized to appear and negotiate on his wife’s

behalf during the Mediation.”          However, there is nothing in the

mediation rules which would permit Mrs. Martin and Mrs. Ross to

authorize their husbands to represent them at mediation.                     Rule

4.A.(2) makes clear      that “[a]ny      party or person required to

attend a mediated settlement conference shall physically attend

until an agreement is reduced to writing and signed as provided

in Rule 4.C. or an impasse has been declared.”                   This rule’s

requirement of physical attendance by all parties may only be

excused “(a) By agreement of all parties and persons required to

attend and the mediator; or (b) By order of the senior resident

superior court judge, upon motion of a party and notice to all
                                           -13-
parties      and   persons       required    to   attend      and   the   mediator.”

There is no provision which would allow a party to unilaterally

authorize someone to appear on their behalf.

       Thus, the trial court properly found that Mrs. Martin and

Mrs. Ross “did not attend the Mediated Settlement Conference and

have offered no sufficient excuse for not attending.”                               This

finding, in turn, supported the trial court’s conclusions that

Mrs.      Martin   and    Mrs.    Ross     violated    the    mediation      rules    by

failing to attend the mediation.

       B.    RCC and T&J

       Finally,     petitioners       contend     that   RCC    and    T&J    did    not

violate the mediation rules because they were both represented

by   an     individual    with      “the   authority     to   negotiate      and    make

recommendations          to   the     applicable       approval       authority”      as

required by Rule 4.A.(1).                Petitioners base this argument upon

the affidavit of George Griffin (“Griffin”), an officer of RCC,

in which Griffin averred that he was authorized to negotiate on

behalf of RCC, and upon Mr. Martin’s affidavit, in which he

averred that he contacted T&J’s directors and obtained their

consent to negotiate on the company’s behalf.                          However, the

trial court declined to credit these affidavits because it found

that petitioners failed to present any governing documents from
                                       -14-
either RCC or T&J which demonstrated that a specific method of

approval was required for these entities.                      As the finder of

fact, the trial court was entitled to decide that Mr. Martin and

Griffin’s respective affidavits were insufficient to establish

RCC and T&J’s compliance with Rule 4.A.                See Coble v. Coble, 300

N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980)(“The trial court

must    itself     determine    what        pertinent     facts        are    actually

established by the evidence before it, and it is not for an

appellate court to determine de novo the weight and credibility

to be given to evidence disclosed by the record on appeal.”).

Ultimately,      the   trial    court’s       findings     were      sufficient       to

support   its    conclusions    that    both     T&J     and   RCC     violated      the

mediation rules.       This argument is overruled.

                               IV.    Conclusion

       Respondent’s     annexation          complied      with       all      relevant

statutory   requirements       and,   accordingly,        we   affirm        the   trial

court’s   judgment     upholding      the    annexation.         The    trial      court

properly concluded that Mrs. Martin, Mrs. Ross, RCC, and T&J

violated the mediation rules.           As a result, we affirm the trial

court’s order awarding sanctions to respondent based upon these

violations.

       Affirmed.
                         -15-
Judges BRYANT and GEER concur.

Report per Rule 30(e).
