Graham v. Deutsche Bank Nat'l Trust Co.

• Court: Court of Appeals of North Carolina
• Decided: July 15, 2014
• Docket: 13-881
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-881 NORTH CAROLINA COURT OF APPEALS

Filed: 15 July 2014

SHELBY J. GRAHAM, Plaintiff,

v. Guilford County No. 12 CVS 4672 DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under Pooling and Servicing Agreement dated as of November 1, 2005, Morgan Stanley Home Equity Loan Trust 2005-4 Mortgage Pass through Certificates, Series 2005-4, Defendant/Third-Party Plaintiff,

v.

BRANCH BANKING AND TRUST COMPANY, Third-Party Defendant.

Appeal by defendant from order entered 19 March 2013 by

Judge Lindsay R. Davis, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 11 December 2013.

Pendergrass Law Firm, PLLC, by James K. Pendergrass, Jr., for plaintiff-appellee and third-party defendant-appellee.

Roberson Haworth & Reese, P.L.L.C., by Alan B. Powell and Christopher C. Finan, for defendant/third-party plaintiff- appellant.

DAVIS, Judge. -2- Deutsche Bank National Trust Company (“Defendant”) appeals

from the trial court’s order awarding summary judgment in favor

of Shelby J. Graham (“Plaintiff”) on her trespass claim. On

appeal, Defendant argues that summary judgment should instead

have been granted in its favor because Plaintiff failed to

establish an essential element of her claim. After careful

review, we reverse the trial court’s order and remand for entry

of summary judgment in favor of Defendant.

Factual Background

Plaintiff and Defendant are the owners of two adjoining

parcels of land in the Mayfield Village subdivision (“Mayfield

Village”) in Guilford County, North Carolina. Plaintiff

acquired Lot 1, Section 1 of Mayfield Village (“Lot 1”) by

general warranty deed on 25 July 1996.1 Plaintiff did not have

Lot 1 surveyed at the time of purchase. Defendant acquired Lot

2, Section 1 of Mayfield Village (“Lot 2”) pursuant to a

trustee’s deed recorded on 28 May 2010. Similarly, Defendant

did not have Lot 2 surveyed at the time it acquired the

property.

1 The deed listed Shelby G. Coffer — Plaintiff’s married name — as the grantee. Plaintiff is no longer married, and in 2001, Plaintiff executed and recorded a deed conveying Lot 1 to Shelby J. Graham. -3- In September of 2010, one of Plaintiff’s neighbors

approached her and expressed an interest in purchasing Lot 2

from Defendant. Plaintiff’s neighbor asked her if she was aware

“that there was a property line dispute between [Lot 1] and [Lot

2].” Plaintiff replied that she did not know of any such

dispute.

In early 2011, another individual, Danny Frazier (“Mr.

Frazier”), approached Plaintiff, expressed an interest in

acquiring Lot 2, and inquired about a property line dispute. At

some point, Mr. Frazier had the property surveyed, and the

survey — which he provided to Plaintiff — indicated that

portions of the house and septic system on Lot 2 encroached on

Lot 1.

Plaintiff’s title insurance company then contacted Boswell

Surveyors, Inc. to prepare a survey of the property (“the

Boswell survey”). The Boswell survey likewise indicated that

the house and septic system on Lot 2 — which were constructed in

1994 — are “in fact partially located on Lot 2 Mayfield Village

and partially encroach[] over onto Lot 1.”

On 8 March 2012, Plaintiff’s attorney sent a letter to

Defendant demanding that the encroaching structures be

immediately removed from Lot 1. The letter stated that if -4- Defendant did not respond within seven days, a civil action

would be filed.

Twelve days later, Plaintiff filed a complaint against

Defendant in Guilford County Superior Court alleging that the

encroaching structures were an “ongoing and continuing trespass”

on her property. On 23 May 2012, Defendant filed an answer,

counterclaims for reformation of its deed and to quiet title,

and a third-party complaint against Branch Banking and Trust

Company (“BB&T”), the holder of the deed of trust encumbering

Plaintiff’s property. Defendant filed an amended answer on 18

July 2012, adding a counterclaim for adverse possession.

Defendant voluntarily dismissed its counterclaim for adverse

possession on 31 October 2012.

On 13 February 2013, Plaintiff and BB&T filed a joint

motion for summary judgment pursuant to Rule 56 of the North

Carolina Rules of Civil Procedure. Following a hearing, the

trial court entered an order on 19 March 2013 granting summary

judgment in favor of Plaintiff and BB&T in part and ordering

Defendant to remove the encroaching structures. Defendant

appealed to this Court.

Analysis -5- We first note that the trial court’s 19 March 2013 order

was a grant of partial summary judgment and is, therefore,

interlocutory. See Curl v. Am. Multimedia, Inc., 187 N.C. App.

649, 652, 654 S.E.2d 76, 78-79 (2007) (“A grant of partial

summary judgment, because it does not completely dispose of the

case, is an interlocutory order from which there is ordinarily

no right of appeal.” (citation and quotation marks omitted)).

An interlocutory order may be appealed, however, if the order

implicates a substantial right of the appellant that would be

lost if the order was not reviewed prior to the issuance of a

final judgment. Guilford Cty. ex rel. Gardner v. Davis, 123

N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996). This Court has

previously held that “ordering the removal of substantial

structures from real property affects [a] substantial right, and

therefore, the partial summary judgment is immediately

appealable.” Keener v. Arnold, 161 N.C. App. 634, 637, 589

S.E.2d 731, 733 (2003), disc. review denied, 358 N.C. 376, 598

S.E.2d 136 (2004). As such, the order requiring Defendant to

remove the portion of the house located on Lot 1 affects a

substantial right and is immediately appealable.

We review an order granting summary judgment de novo. In

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). -6- “Summary judgment is appropriate if the pleadings, depositions,

answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue

as to any material fact and that any party is entitled to a

judgment as a matter of law.” Premier, Inc. v. Peterson, ___

N.C. App. ___, ___, 755 S.E.2d 56, 59 (2014) (citation and

quotation marks omitted). When ruling on a motion for summary

judgment, the trial court “must consider the evidence in the

light most favorable to the nonmovant, who is entitled to the

benefit of all favorable inferences which may reasonably be

drawn from the facts proffered.” First Commerce Bank v.

Dockery, 171 N.C. App. 297, 299-300, 615 S.E.2d 314, 316 (2005)

(citation and quotation marks omitted).

Here, Defendant argues that summary judgment was improperly

granted in favor of Plaintiff and BB&T because Plaintiff cannot

prove all of the essential elements of her trespass claim. “[A]

claim of trespass requires: (1) possession of the property by

plaintiff when the alleged trespass was committed; (2) an

unauthorized entry by defendant; and (3) damage to plaintiff.”

Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 627,

588 S.E.2d 871, 874 (2003) (citation and quotation marks omitted

and emphasis added). In the present case, the pleadings and -7- depositions before the trial court showed that (1) Plaintiff

purchased Lot 1 in 1996; and (2) the house and septic system on

Lot 2 were constructed in 1994. As such, because Plaintiff did

not possess Lot 1 at the time the encroaching structures were

built, Plaintiff cannot satisfy the first element of trespass.

In reaching this conclusion, we are guided by our decision

in Woodring v. Swieter, 180 N.C. App. 362, 637 S.E.2d 269

(2006). In Woodring, a property owner brought a trespass claim

against the owners of adjoining property based on the

defendants’ installation of an underground waterline which

encroached on the plaintiff’s land. Id. at 366, 637 S.E.2d at

274. We concluded that the trial court had properly granted

summary judgment in favor of the defendants because the

plaintiff “obtained no legally recognized interest in [the

property] until . . . approximately six years after the

installation of the waterline — the date when the original

trespass was committed” and, therefore, could not satisfy the

first element of a claim for trespass. Id. at 376, 637 S.E.2d

280. Similarly, because Plaintiff in the present case did not

obtain a legally recognized interest in Lot 1 until

approximately two years after the construction of the -8- encroaching structures on Lot 2, we are compelled to reach the

same result here.

While Plaintiff attempts to rely upon this Court’s decision

in Bishop v. Reinhold, 66 N.C. App. 379, 311 S.E.2d 298, disc.

review denied, 310 N.C. 743, 315 S.E.2d 700 (1984), her reliance

on Bishop is misplaced. In Bishop, the trial court entered

judgment on the jury’s verdict that the defendants had committed

a wrongful trespass by constructing a portion of their home on

the plaintiffs’ land. Id. at 380, 311 S.E.2d at 299. On

appeal, the defendants in Bishop did not dispute the fact that

the plaintiffs owned the property at the time the defendants’

encroaching structure was constructed and instead argued that

the trespass claim was barred by the three-year statute of

limitations for a continuing trespass because it was brought

seven years after the construction of the encroaching house.

Id. We concluded that the trial court had properly determined

that the plaintiffs’ trespass action was not time-barred because

[t]he wrongful maintenance of a portion of the defendants’ dwelling house on the plaintiffs’ lot is a separate and independent trespass each day it so remains and the three-year statute for removal begins to run each day the encroaching structure remains upon the plaintiffs’ land.

Id. at 384, 311 S.E.2d at 301. -9- In Bishop, the plaintiffs had owned the property at issue

when the defendants’ encroaching house was built. Id. at 381,

311 S.E.2d at 300. Thus, unlike in the present case, the

plaintiffs in Bishop had possession of the property when the

alleged trespass was first committed. As such, while Bishop

stands for the proposition that a continuing encroachment on

one’s property is an independent trespass each day for purposes

of the statute of limitations, nothing in Bishop permits

Plaintiff to escape her burden of establishing the first element

of a trespass claim — that she was in possession of the property

at the time the original trespass occurred. See Young v. Lica,

156 N.C. App. 301, 305, 576 S.E.2d 421, 424 (2003) (“The

elements of a trespass claim are that plaintiff was in

possession of the land at the time of the alleged trespass; that

defendant made an unauthorized, and therefore unlawful, entry on

the land; and that plaintiff was damaged by the alleged invasion

of his rights of possession.” (citation and quotation marks

omitted and emphasis added)).

Accordingly, on the facts before us, an essential element

of Plaintiff’s trespass claim is lacking, and, for this reason,

summary judgment should have been entered in favor of Defendant.

See Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 10, 652 -10- S.E.2d 284, 292 (2007) (explaining that defendant is entitled to

summary judgment upon a showing that “an essential element of

the plaintiff’s case is non-existent”), appeal dismissed and

disc. review denied, 362 N.C. 177, 658 S.E.2d 485 (2008).

Conclusion

For the reasons stated above, we reverse the trial court’s

order granting summary judgment for Plaintiff and BB&T and

remand for entry of summary judgment in favor of Defendant.

REVERSED AND REMANDED.

Judges STEELMAN and STEPHENS concur.

Report per Rule 30(e).