Dockery v. Hocutt

571 S.E.2d 81, 153 N.C. App. 744, 2002 N.C. App. LEXIS 1267

• Court: Court of Appeals of North Carolina
• Decided: November 5, 2002
• Docket: No. COA01-1457
• Status: Published

Opinions

WYNN, Judge.

Plaintiff Lewis D. Dockery asserting a right to title of property by adverse possession, appeals from Superior Court Judge Donald W. Stephens’ Order of Confirmation presenting one issue: Should the Order of Confirmation be set aside because Judge Stephens improperly compelled this matter to a referee? We hold that the question of whether this matter was properly referred to a referee was rendered harmless by Judge Stephens’ Order which independently assessed the evidence and found as a matter of law that plaintiff failed to establish a claim of title by adverse possession.

The underlying facts of this matter tend to show that plaintiff brought an action claiming to have adversely possessed property deeded to his neighbors Paul E. and Cora J. Hocutt, and Lane and Delois C. Whitaker. The claimed property consisted of two parcels of land, .37 acre and .30 acre tracts, but excluded a garden area 35 feet wide and 100 feet long cultivated by the Hocutts and another garden area 35 feet wide and 127 feet long used by another neighbor, James L. Gunter.¹

Defendants answered claiming rights as record owners of the property and denying plaintiffs claim under rights of adverse possession. By order dated 20 August 1999, Judge Stephens ordered this matter to compulsory reference under N. C. Gen. Stat. § 1A-1, Rule 53(a)(2) (2001) and referred the matter to Referee Robert L. Farmer (former Senior Resident Superior Court Judge for Wake County) to determine all the issues in this action. All parties objected to the compulsory reference.

After conducting a hearing, Referee Farmer reported that attorneys for both parties appeared along with “such witnesses as they elected to produce.” The testimony of the witnesses was transcribed and resulted in a 232 page transcript. The referee also received as evidence maps and photographs of the property. Moreover, the attorneys for each side were allowed to question witnesses and present oral arguments to the referee. From that evidence, Referee Farmer concluded that plaintiff failed to prove his claim of adverse possession. Thereafter, plaintiff excepted to the referee’s report and requested a jury trial on the matter. In response,"Judge Stephens issued an Order Confirming the Referee’s report based upon his independent assessment of the evidence presented to the referee. From that Order, plaintiff appeals.

On appeal, plaintiff argues that since his claim of adverse possession did not involve a complicated question of boundary or required a personal view of the premises, Judge Stephens erred by submitting this matter to compulsory reference under N.C. Gen. Stat. § 1A-1, Rule 53(a)(2)(c). We hold that any error in referring this matter to a referee under Rule 53(a)(2)(c), was cured by Judge Stephens’ Order of Confirmation which indicates that he independently evaluated the evidence presented by both sides and determined that as a matter of law, plaintiff had failed to establish a claim of title by adverse possession.

In his order of confirmation, Judge Stephens noted, after carefully reviewing the evidence, that:

The Court considering the evidence in the light most favorable to the Plaintiffs, could find no material facts that would support a claim for adverse possession of the subject property. The evidence presented is insufficient to raise controverted issues of fact that could support Plaintiffs’ claims.

Thus, the trial court, by independently reviewing the evidence, determined that there were no issues of fact and effectively entered summary judgment on the issue of adverse possession.

Our conclusion that Judge Stephens’ Order of Confirmation may be read to constitute a summary judgment is supported by well established precedent under which this Court and our Supreme Court have liberally allowed the conversion of Rule 12(b)(6) motions to be considered on appeal under a summary judgment review. See Pinney v. State Farm Mat. Ins. Co., 146 N.C. App. 248, 251, 552 S.E.2d 186, 189 (2001) (treating a 12(b)(6) motion to dismiss as a motion for summary judgment if additional materials are considered); Piedmont Consultants of Statesville, Inc. v. Baba, 48 N.C. App. 160, 164, 268 S.E.2d 222, 224-25 (1980) (same); Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 273, 258 S.E.2d 864, 867 (1979) (same); see also Fauchette v. Zimmerman, 79 N.C. App. 265, 267-68, 338 S.E.2d 804, 806 (1986) (stating “the constitutional right to trial by jury is not absolute; rather, it is premised upon a preliminary determination by the trial judge that there indeed exist genuine issues of fact and credibility which require submission to the jury” in a discussion explaining why a party was entitled to a trial by jury only if the evidence before the referee was sufficient to raise an issue of fact); Nantahala Power and Light Co. v. Horton, 249 N.C. 300, 306, 106 S.E.2d 461, 465 (1959) (stating a party was entitled to trial by jury only if the evidence before the referee was sufficient to raise an issue of fact).

Indeed, in 12(b)(6) proceedings, the parties generally do not present any evidence²; yet, on review our appellate courts liberally allow such dismissals to be reviewed under the summary judgment standard. In stark contrast to 12(b)(6) proceedings, the Order of Confirmation in this case was rendered with the benefit of transcribed testimony of witnesses presented by both parties; evidentiary maps and photographs, and arguments of counsel. Surely, our Courts’ sanction of the appellate review of 12(b)(6) motions as summary judgment motions makes it even more compelling that an order supported by the evidence presented in this case could likewise be reviewed as a summary judgment order. Accordingly, we hold that the dispositive issue on appeal is whether the evidence in a light most favorable to the plaintiff precluded summary judgment on his claim of adverse possession.³

Based on the record on appeal, we uphold the trial court’s order that “plaintiffs have failed to offer any evidence from which a jury could find (1) the existence for 20 years of known and visible lines and boundaries of the disputed property to identify the extent of any possession claimed; and (2) that Plaintiffs’ possession was actual, open, hostile, exclusive and continuous for 20 years under known and visible lines and boundaries.”

In his testimony before the referee, the plaintiff stated he never intended to prevent any of his neighbors from using the disputed property because they had just as much right to use the property as he did. That testimony alone is sufficient to indicate that the plaintiff’s possession of the property was not open, hostile and exclusive. Additionally, viewing the evidence in the light most favorable to the plaintiff, the plaintiff has not presented any evidence from which a jury could determine the existence of known and visible lines and boundaries for twenty years. Plaintiff presented testimony that there were fences behind five of thirteen lots adjacent to the disputed property; and, that behind one of the lots, there was a tree line. However, this evidence would only establish boundary lines to less than half of the land plaintiff claims to adversely possess. Plaintiff also presented a modified 1997 survey to indicate the area he possessed. However, this map is insufficient to show known and visible lines and boundaries for the twenty year period for the boundary must be visible on the ground. See State v. Brooks, 275 N.C. 175, 181, 166 S.E.2d 70, 73 (1969).

In sum, we conclude that plaintiff, by his own testimony, establishes irrefutably that he failed to possess the property openly, hostilely and to the exclusion of all others. We further conclude that viewing the evidence in the light most favorable to the plaintiff, the plaintiff has failed to present sufficient evidence demarcating the extent of his claimed possession for twenty years.

Affirmed.

Judge BIGGS concurs. Judge GREENE dissents.

1 . Co-plaintiff James L. Gunter is not a party to this appeal because he settled his claim against defendants and filed a voluntary dismissal of his action.

2 . If in a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. N.C. Gen. Stat. § 1A-1, Rule 12(b) (2001).

3 . In their appeal, neither party contests the payment of the referee’s fee based on an improper referral by the trial court; accordingly, we do not address that question in this appeal.