An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-199 NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
SANDY GROVE BAPTIST CHURCH, LISA BARNES, JACKIE HAGWOOD (on behalf of the Family of Shelby Jean Mosley), Plaintiffs
v. Nash County No. 11 CVS 1177 BETTY JOYCE FINCH, Defendant.
Appeal by plaintiffs from order entered 10 September 2013
by Judge Marvin K. Blount, III in Nash County Superior Court.
Heard in the Court of Appeals 13 August 2014.
Newton & Lee, PLLC, by E.S. “Buck” Newton, III, for plaintiffs-appellants.
Etheridge, Hamlett & Murray, LLP, by Ernie K. Murray, for defendant-appellee.
HUNTER, Robert C., Judge.
Sandy Grove Baptist Church (“Sandy Grove”), Lisa Barnes
(“Ms. Barnes”), and Jackie Hagwood (“Ms. Hagwood”) (collectively
“plaintiffs”) appeal from an interlocutory order denying their
motion for partial summary judgment and granting partial summary -2- judgment in favor of Betty Joyce Finch (“defendant”). On
appeal, plaintiffs argue that the trial court erred by denying
their motion for partial summary judgment because there exist no
genuine issues of material fact and plaintiffs are entitled to
judgment as a matter of law on their claim for rescission of
deed and quiet title; they further argue that summary judgment
for defendant was improper on Ms. Hagwood’s claim of intentional
infliction of emotional distress (“IIED”) because genuine issues
of material fact exist as to whether Ms. Hagwood suffered severe
emotional distress as a result of defendant’s conduct.
After careful review, we dismiss plaintiffs’ appeal.
Background
This cause of action concerns a 2-acre tract of land in
Nash County, North Carolina deeded on 2 June 1823 from Archibald
Lemon to Osborn Strickland, in his capacity as representative of
the members of the Baptist Church at Lemon’s Meeting House.
This “indenture” was recorded at Book 11, page 101 of the Nash
County Registry and reads as follows:
This indenture made this 2nd day of June of 1823 between Arch Lamon of the County of Nash and State of North Carolina of the one part and Osbon Strickland of for and in behalf of the members of the Baptist Church at Lamon’s Meeting House of the other part Witnesseth that I the said Arch Lamon doth hereby freely give grant and confirm unto -3- the said Osbon Strickland in behalf of the members of the said Church at Lamon’s Meeting House two acres of land around the said Meeting House on the north side of the roads so as to contain an equal distance in front of the road from each end of the House for the sole purpose and accommodation of the church and for no other purpose whatever so long as the same shall be used as a place of Preaching or public worship by the Church thereof and no longer and I the said Arch Lamon doth for myself and my heirs hereby warrant and defend this said described land unto the said Osbon Strickland for the above named purpose and not otherwise against the claim of any person whatever . . . .
Sometime after the filing of this indenture, the Baptist
Church at Lemon’s Meeting House changed its name to Sandy Grove
Baptist Church. In 1914, A.T. Strickland, A.J. Chamblee, and
Geo W. Morgan, as “members and deacons of Sandy Grove Baptist
Church,” filed a petition in Nash County Superior Court to
establish a dividing line between the tract owned by Sandy Grove
and that belonging to the surrounding landowners, J.W. Finch and
his wife, Alice Finch – defendant’s ancestors. The petitioners
identified the tract that they claimed for the church as that
“conveyed by Archbale Lemon” and “recorded in book 11, at page
101, Nash Registry.” The Finches did not dispute that Sandy
Grove owned an adjoining tract of land; they merely disputed the
metes and bounds that it claimed. A surveyor was appointed by
the trial court to determine the contested boundary, and after -4- the survey was completed, the parties agreed to a specified
dividing line. The parties then entered into a settlement
agreement and the trial court entered a judgment on 9 October
1915 incorporating the surveyor’s plat and adopting the metes
and bounds description of the property contained therein.
According to Sandy Grove’s records, the church continued to
operate from 1915 until around the 1980’s. The extent of the
church’s religious services after the 1980’s is disputed.
Around this time, an unidentified member of Sandy Grove entered
into its records that its membership had dwindled to three
members and that the last service occurred on 1 May 1985. The
records also contain the following notation: “no longer able to
hold services. May the Lord be with this old church house and
the few sisters. Books closed.”
Defendant is in her seventies; she is a member of the Finch
family and testified in deposition that she lived across the
Sandy Grove property within eyesight of the church her entire
life. She testified that as of 2005, the building was
dilapidated and in a state of severe disrepair. She claimed
that the pews, pulpit, and furniture had been removed from the
building, the chimney had fallen in, the roof and windows were
broken, and there was an unmaintained open well on the property. -5- Ms. Barnes, one of the named plaintiffs, admitted that the
building was in disrepair in 2005 but could neither confirm nor
deny the extent of the damage.
On 19 April 2005, the descendants of J.W. and Alice Finch
filed a deed in Nash County purporting to convey the Sandy Grove
tract to defendant and defendant’s sister (“the purported
deed”). The instrument contained the following language:
WHEREAS, by instrument dated June 2, 1823, recorded in Book 11, page 101, Nash County Public Registry, Archibald Leamon, executed an Indenture to Osborne Strickland for and on behalf of the members of the Baptist Church at Leamon’s Meeting House, 2 acres of land providing in said instrument “for the sole purpose and accommodation of the church and for no other purpose whatsoever as [sic] long as the same shall be used as a place of preaching or public worship by the church whereas, and no longer”; and,
WHEREAS, through various ownership changes and transfers through the years of the parent tract of land from which the 2 acre tract was carved, the Grantors herein are the owners of that portion of the 1823 parent tract from which the hereinafter described 2 acres was carved, and,
WHEREAS, the 2-acre tract of land has been abandoned, the structure thereon is in disrepair, no church service has been held or conducted in at least 40 years, that the last church to use the facility as a church and place of worship was the Sandy Grove Baptist Church, which ceased to exist more than 40 years ago and there are no known Trustees, Board of Deacons, Pastors, church -6- officials or any other officers of the church and none has been known to exist for more than 40 years; and,
WHEREAS, by the reverter (reversion) clause in said 1823 instrument hereinabove mentioned, title to the lands herein has reverted to the Grantors herein and the Grantors desire to convey their interest in the lands described herein to the Grantees[.]
Defendant’s sister died in 2006, leaving defendant with the
entire interest in the tract. After continued years of
disrepair, defendant had the Sandy Grove building demolished in
2011 and posted “No Trespassing” signs throughout the grounds.
Ms. Hagwood testified in deposition that her aunt had
indicated in writing a desire to be buried at Sandy Grove
cemetery. She testified that after her aunt died in January
2011, she tried to arrange a burial at Sandy Grove but was
refused access to the cemetery by defendant. Ms. Hagwood
further testified that as a result of being unable to fulfill
her aunt’s wishes, she experienced bouts of anxiety,
hopelessness, headaches, and lost sleep.
On 11 July 2011, plaintiffs filed suit against defendant.
In their amended complaint, plaintiffs listed six total claims:
(1) declaratory judgment that Sandy Grove is the owner of the
disputed property in fee simple; (2) rescission of the purported -7- deed to defendant and quiet title for Sandy Grove; (3) access to
cemetery under N.C. Gen. Stat. § 65-102 (2013); (4) trespass and
damage to property; (5) intentional infliction of emotional
distress on Ms. Hagwood; and (6) injunctive relief. On 30
November 2012, plaintiffs filed a motion for summary judgment.
Defendant filed a cross motion for summary judgment for all
claims on 13 February 2012. According to plaintiffs’ Motion for
Specific Findings entered 30 August 2013, a hearing was held on
the parties’ motions for summary judgment on 24 June 2013. No
transcript of this hearing has been filed with this Court.
On 10 September 2013, the trial court entered an order
denying plaintiffs’ motion for “partial summary judgment” and
granting summary judgment for defendant on Ms. Hagwood’s IIED
claim. The trial court ruled that there existed genuine issues
of material fact precluding summary judgment for defendant on
the remaining claims and precluding summary judgment for
plaintiffs on the unspecified claims for which their purported
motion for “partial” summary judgment applied. It is unclear
from the order which of the six claims were the subject of
plaintiffs’ motion for partial summary judgment. Plaintiffs
filed timely notice of appeal from this order.
Discussion -8- I. Grounds for Appellate Review
Plaintiffs first argue that the trial court’s interlocutory
order is immediately appealable because a substantial right
would be deprived without immediate review. We disagree.
“An interlocutory order is one made during the pendency of
an action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and
determine the entire controversy.” Veazey v. City of Durham,
231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). Orders that
either deny summary judgment or grant partial summary judgment
are interlocutory. See North Carolina Dept. of Transp. v. Page,
119 N.C. App. 730, 734, 460 S.E.2d 332, 334 (1995). “Generally,
there is no right of immediate appeal from interlocutory orders
and judgments.” Goldston v. Am. Motors Corp., 326 N.C. 723,
725, 392 S.E.2d 735, 736 (1990). However, immediate appeal of
an interlocutory order is available where: (1) the trial court
certifies the case for appeal pursuant to N.C. Gen. Stat. § 1A-
1, Rule 54(b) (2013); or (2) the order deprives the appellant of
a substantial right under N.C. Gen. Stat. § 1-277(a) (2013)
which would be lost without immediate review. Page, 119 N.C.
App. at 734, 460 S.E.2d at 334. -9- Because the trial court here did not certify this case for
immediate appeal under Rule 54(b), plaintiffs argue that
immediate review is appropriate because the trial court’s order
affects a substantial right. At the outset, we note that at no
point in plaintiffs’ brief do they attempt to argue how a
substantial right would be deprived without immediate review of
the trial court’s order granting partial summary judgment for
defendant on Ms. Hagwood’s IIED claim. “It is not the duty of
this Court to construct arguments for or find support for
appellant’s right to appeal from an interlocutory order;
instead, the appellant has the burden of showing this Court that
the order deprives the appellant of a substantial right . . . .”
Jefferys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 380,
444 S.E.2d 252, 254 (1994). Thus, we dismiss plaintiffs’
arguments pertaining to the trial court’s grant of summary
judgment on the IIED claim. See id.; see also State ex rel.
City of Charlotte v. Hidden Valley Kings, __ N.C. App. __, __,
__ S.E.2d __, __ (2014) (dismissing appeal because the
appellants failed to argue that a substantial right would be
irrevocably lost absent immediate review of an interlocutory
order). -10- Additionally, we dismiss the remaining portions of the
appeal because plaintiffs have failed to demonstrate how the
trial court’s denial of their motion for partial summary
judgment affects a substantial right.
“The purpose of the doctrine of res judicata is to protect
litigants from the burden of relitigating previously decided
matters and to promote judicial economy by preventing
unnecessary litigation.” Holly Farms Inc. v. Kuykendall, 114
N.C. App. 412, 417, 442 S.E.2d 94, 97 (1994). “Under the
companion doctrine of collateral estoppel, also known as
‘estoppel by judgment’ or ‘issue preclusion,’ the determination
of an issue in a prior judicial or administrative proceeding
precludes the relitigation of that issue in a later action . . .
.” Urquhart v. East Carolina Sch. Of Med., __ N.C. App. __, __,
712 S.E.2d 200, 204 (2011).
“Ordinarily, the denial of a motion for summary judgment
does not affect a substantial right so that an appeal may be
taken.” Motyka v. Nappier, 9 N.C. App. 579, 582, 176 S.E.2d
858, 859 (1970). However, the denial of a motion for summary
judgment based on the defenses of res judicata or collateral
estoppel may affect a substantial right, making the order
immediately appealable. See Bockweg v. Anderson, 333 N.C. 486, -11- 491, 428 S.E.2d 157, 161 (1993); see also Country Club of
Johnston Cnty., Inc. v. U.S. Fidelity and Guar. Co., 135 N.C.
App. 159, 167, 519 S.E.2d 540, 546 (1999).
This Court has recently clarified that immediate appeal
from such orders is not automatically allowed; the appellant
still bears the burden of demonstrating how the order affects a
substantial right:
We acknowledge the existence of an apparent conflict in this Court as to whether the denial of a motion for summary judgment based on res judicata affects a substantial right and is immediately appealable. However, our Supreme Court has addressed this issue in Bockweg, and, like the panel in Country Club, “we do not read Bockweg as mandating in every instance immediate appeal of the denial of a summary judgment motion based upon the defense of res judicata. The opinion pointedly states reliance upon res judicata ‘may affect a substantial right.’” Country Club, 135 N.C. App. at 166, 519 S.E.2d at 545 (emphasis in original) (quoting Bockweg, 333 N.C. at 491, 428 S.E.2d at 161).
Heritage Operating, L.P. v. N.C. Propane Exch., LLC, __ N.C.
App. __, __ n.2, 727 S.E.2d 311, 314 n.2 (2012). Thus, a party
seeking immediate appellate review of an order denying a motion
for summary judgment based on res judicata or collateral
estoppel must show “not only that one claim has been finally
determined and others remain which have not yet been determined, -12- but that (1) the same factual issues would be present in both
trials and (2) the possibility of inconsistent verdicts on those
issues exists[.]” Heritage Operating, L.P., __ N.C. App. at __,
727 S.E.2d at 314-15 (quoting Country Club of Johnston Cnty.,
135 N.C. App. at 167, 519 S.E.2d at 546 (emphasis in original)).
Here, plaintiffs contend that the doctrines of res judicata
and collateral estoppel both work to prevent defendant from
contesting plaintiffs’ claim of quiet title. Specifically,
plaintiffs argue that ownership of the property in question was
“previously resolved between the plaintiff Sandy Grove Baptist
Church and J.W. Finch” in the 1915 judgment. Thus, plaintiffs
argue because J.W. Finch is the grandfather of defendant and is
defendant’s predecessor in title, defendant cannot now argue
that she has title to the land upon which Sandy Grove rests.
Plaintiffs further contend that if this matter is allowed to go
to trial, there exists the risk of a verdict inconsistent with
the 1915 judgment, which set the boundary between Sandy Grove’s
land and J.W. Finch’s land. We do not find these arguments
persuasive.
In 1915, members and deacons of Sandy Grove entered into a
consent judgment with J.W. Finch to determine the boundary
between their respective tracts of land. At no point was the -13- type of interest that Sandy Grove held in the land in question.
In contrast, when defendant was purportedly deeded the land upon
which Sandy Grove rests in 2005, the basis for that conveyance
was the contention that Sandy Grove had been deeded a fee simple
determinable by Archibald Lemon in 1823, not a fee simple
absolute. “A fee simple determinable estate terminates
automatically upon the occurrence of [an] event, which gives
rise to [a] reverter[.]” City of Charlotte v. Charlotte Park &
Recreation Comm'n, 278 N.C. 26, 31, 178 S.E.2d 601, 605 (1971).
“To create a fee simple determinable, the conveyance to the
grantee, A, must contain a phrase such as ‘so long as,’ ‘as long
as,’ ‘while,’ ‘during,’ or ‘until.’” 118 Am. Jur. Proof of
Facts 3d. 125. Defendant contends that the language in the 1823
deed, “so long as the same shall be used as a place of Preaching
or public worship by the Church thereof and no longer,” created
a fee simple determinable that would revert title in the land to
the grantor should the property no longer be used as a place of
worship by Sandy Grove. Thus, because Sandy Grove’s books were
closed in the mid-1980’s and the building itself fell into
severe disrepair, defendant contends that Sandy Grove lost title
in the land because it no longer used the tract as a place of
preaching or public worship. -14- Regardless of the merits of these contentions, we conclude
that there is no risk of a verdict inconsistent with the 1915
judgment that would be sufficient to allow immediate appeal from
the trial court’s order. Even if this matter were to go to a
jury and Sandy Grove were to lose title in the land as a result
of its failure to use the tract as a place for preaching or
public worship, such a result would not conflict with the 1915
judgment setting a boundary between Sandy Grove’s and J.W.
Finch’s respective tracts. At no point in the 1915 proceeding
was the type of interest in Sandy Grove’s tract addressed,
presumably because at the time it was a functioning church with
multiple members and deacons. Thus, the facts and arguments in
the 1915 dispute are distinct and separate from those raised
here, removing the risk that an inconsistent verdict will be
entered should this matter proceed to trial.
Accordingly, because plaintiffs, as the appellants, have
failed to carry their burden of demonstrating “the possibility
of inconsistent verdicts,” Heritage Operating, L.P., __ N.C.
App. at __, 727 S.E.2d at 314-15, they have also failed to show
how the trial court’s order affects a substantial right. Thus,
dismissal of this appeal is proper. See Country Club of Johnston
Cnty., 135 N.C. App. at 167, 519 S.E.2d at 546 (dismissing -15- appeal taken from the denial of a motion for summary judgment
because the plaintiff could not demonstrate a possibility of
inconsistent verdicts if the case were to proceed to trial, and
thus failed to show how the order affected a substantial right
warranted immediate appeal).
Conclusion
For the foregoing reasons, we dismiss plaintiffs’ appeal
from the trial court’s interlocutory order.
DISMISSED.
Judges DILLON and DAVIS concur.
Report per Rule 30(e).