An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA14-234 NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
Swaps, LLC,
Plaintiff,
v. Union County No. 09 CVS 674 ASL Properties, Inc., American Store and Lock # 6, Virginia G. Favreau and Metrolina Enterprises of Union County, LLC,
Defendants.
Appeal by defendants from order entered 20 September 2013
by Judge W. Erwin Spainhour in Union County Superior Court.
Heard in the Court of Appeals 5 June 2014.
Kennon Craver, PLLC, by Joel M. Craig, for plaintiff- appellee.
Law Offices of John T. Burns, by John T. Burns and Christopher A. Gray, for defendants-appellees Metrolina Enterprises of Union County, L.L.C., and E & O Lesmarchris Family Limited Partnership.
Raynor Law Firm, PLLC, by Kenneth R. Raynor, for defendants-appellants ASL Properties, Inc., The Heyward Group, and Virginia G. Favreau.
DAVIS, Judge. -2- ASL Properties, Inc. (“ASL”), The Heyward Group,
(“Heyward”), and Virginia G. Favreau (“Favreau”) (collectively
“Appellants”) appeal from an order granting summary judgment in
favor of Plaintiff Swaps, LLC (“Swaps”). After careful review,
we affirm the trial court’s order.
Factual Background
ASL and Swaps own adjoining parcels of land in the Garrett-
Fisher commercial subdivision located in Union County, North
Carolina. ASL owns Lots #3 and #4 of the subdivision, and Swaps
owns Lot #5. Prior to 9 January 2002, Metrolina Enterprises of
Union County, LLC (“Metrolina”) owned Lot #5, with access to Lot
#5 being provided by a driveway built on Lot #3. The access
route is described on a plat as a “30 foot easement right of
way,” and is the only access route from Lot #5 to U.S. Highway
601, which runs along the eastern boundary of Lots #3 and #4.
The easement has been used continuously by the owners of Lot #5
since 9 January 2002. On 21 December 2007, Swaps recorded a
deed evidencing its purchase of Lot #5, along with the access
driveway, from Metrolina.
On 5 March 2009, Swaps filed a verified complaint against
ASL, Favreau (its registered agent), and Metrolina. The
complaint described a dispute between Swaps and ASL concerning -3- the access route across ASL’s property. Swaps alleged that on
17 February 2009, ASL had barricaded the access route by sinking
metal poles into the driveway such that vehicles could not pass
through. In its complaint, Swaps sought, inter alia,
declaratory and injunctive relief providing that it had the sole
and exclusive right to the continued use of the 30 foot easement
at issue and enjoining ASL from interfering with Swaps’ use of
the easement. In addition, the complaint contained a claim
against Metrolina demanding that it “fulfill its legal duty and
obligations to . . . Swaps by defending the title to the real
property . . . conveyed by Metrolina to Swaps.” On 16 April
2009, Swaps filed an amended complaint, joining Heyward — the
manager of the business operating on ASL’s land — as a
defendant.
On 24 September 2009, Appellants filed an amended answer
and counterclaims, denying the existence of the easement and
counterclaiming to quiet title to the property and to assert a
trespass claim against Swaps. On 1 June 2010, Metrolina filed
an answer and crossclaims against the other defendants.
On 8 May 2013, Swaps filed a verified second amended
complaint, adding E & O Lesmarchris Family Limited Partnership -4- (“E & O”) as an additional defendant and contending that the
partners of E & O “are the same as the members of Metrolina[.]”
The parties filed cross-motions for summary judgment
pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure. On 20 September 2013, the trial court entered an
order (1) granting Swaps’ motion for summary judgment; (2)
denying ASL’s motion for summary judgment; (3) issuing a
permanent injunction in favor of Swaps; (4) dismissing ASL’s
counterclaims with prejudice; (5) declaring that Swaps “has a 30
foot easement across [] ASL’s Lot #3”; and (6) taxing Appellants
with costs and expenses. Appellants filed a timely notice of
appeal to this Court.
Analysis
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows 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.”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576
(2008) (citation and quotation marks omitted).
Appellants contend that the trial court erred in granting
summary judgment in favor of Swaps because (1) there was no
evidence that the original owner of the land intended to reserve -5- an easement across Lot #3; (2) Swaps was not in possession of
the land long enough to satisfy the requirements of adverse
possession; and (3) Swaps cannot demonstrate reliance upon the
existence of rights in the access driveway. Because we conclude
that an easement benefiting Lot #5 was, in fact, reserved, we
hold that summary judgment in favor of Swaps was proper.
The parcels at issue were originally owned by Clarence E.
Fisher, Jr. and his wife, Alta Mae Fisher, and Stephen M.
Garrett and his wife, Paulette L. Garrett. They conveyed this
land to B & F Rental, a North Carolina general partnership, by
means of a deed dated 6 December 1989. The deed itself makes no
reference to an easement for egress and ingress. However, the
deed references and incorporates an unrecorded survey plat by
Walter L. Gordon, dated 2 June 1988 and revised 21 November
1988. This survey plat shows a “30’ r/w for ingress, egress,
drainage & utilities” extending west along the southern side of
Lot #2, then turning to the south from Lot #2 along the western
side of Lot #3 where it abuts Lot #5, then turning to the east
along the northern side of Lot #4. Walter L. Gordon and Stephen
Garrett provided affidavit testimony that (1) the 30 foot right
of way for ingress and egress, drainage, and utilities was
depicted on the survey plat dated 2 June 1988 and revised 21 -6- November 1988; and (2) prior to 9 January 2002, this easement
was in existence and was in use for the benefit of Lot #5.
The 6 December 1989 deed from the Fishers and Garretts to B
& F Rental expressly references the “unrecorded survey plat by
Walter L. Gordon, NCRLS, dated June 2, 1988, and revised
November 21, 1988.” Similarly, the deed from B & F Rental to
ASL, in Schedule A, Tract I, incorporates this same survey by
reference. Thus, at the time that ASL took possession of the
land, it did so with record knowledge of, and subject to, the
easement. See Nelms v. Davis, 179 N.C. App. 206, 211, 632
S.E.2d 823, 827 (2006) (“A map or plat referred to in a deed
becomes part of the deed and need not be registered. Therefore,
as long as the landowner has notice of the plat through his
deed, the plat does not have to be recorded in order to effect a
right of way dedication.” (citation and quotation marks
omitted)); Price v. Walker, 95 N.C. App. 712, 716-17, 383 S.E.2d
Free access — add to your briefcase to read the full text and ask questions with AI
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. COA14-234 NORTH CAROLINA COURT OF APPEALS
Filed: 16 September 2014
Swaps, LLC,
Plaintiff,
v. Union County No. 09 CVS 674 ASL Properties, Inc., American Store and Lock # 6, Virginia G. Favreau and Metrolina Enterprises of Union County, LLC,
Defendants.
Appeal by defendants from order entered 20 September 2013
by Judge W. Erwin Spainhour in Union County Superior Court.
Heard in the Court of Appeals 5 June 2014.
Kennon Craver, PLLC, by Joel M. Craig, for plaintiff- appellee.
Law Offices of John T. Burns, by John T. Burns and Christopher A. Gray, for defendants-appellees Metrolina Enterprises of Union County, L.L.C., and E & O Lesmarchris Family Limited Partnership.
Raynor Law Firm, PLLC, by Kenneth R. Raynor, for defendants-appellants ASL Properties, Inc., The Heyward Group, and Virginia G. Favreau.
DAVIS, Judge. -2- ASL Properties, Inc. (“ASL”), The Heyward Group,
(“Heyward”), and Virginia G. Favreau (“Favreau”) (collectively
“Appellants”) appeal from an order granting summary judgment in
favor of Plaintiff Swaps, LLC (“Swaps”). After careful review,
we affirm the trial court’s order.
Factual Background
ASL and Swaps own adjoining parcels of land in the Garrett-
Fisher commercial subdivision located in Union County, North
Carolina. ASL owns Lots #3 and #4 of the subdivision, and Swaps
owns Lot #5. Prior to 9 January 2002, Metrolina Enterprises of
Union County, LLC (“Metrolina”) owned Lot #5, with access to Lot
#5 being provided by a driveway built on Lot #3. The access
route is described on a plat as a “30 foot easement right of
way,” and is the only access route from Lot #5 to U.S. Highway
601, which runs along the eastern boundary of Lots #3 and #4.
The easement has been used continuously by the owners of Lot #5
since 9 January 2002. On 21 December 2007, Swaps recorded a
deed evidencing its purchase of Lot #5, along with the access
driveway, from Metrolina.
On 5 March 2009, Swaps filed a verified complaint against
ASL, Favreau (its registered agent), and Metrolina. The
complaint described a dispute between Swaps and ASL concerning -3- the access route across ASL’s property. Swaps alleged that on
17 February 2009, ASL had barricaded the access route by sinking
metal poles into the driveway such that vehicles could not pass
through. In its complaint, Swaps sought, inter alia,
declaratory and injunctive relief providing that it had the sole
and exclusive right to the continued use of the 30 foot easement
at issue and enjoining ASL from interfering with Swaps’ use of
the easement. In addition, the complaint contained a claim
against Metrolina demanding that it “fulfill its legal duty and
obligations to . . . Swaps by defending the title to the real
property . . . conveyed by Metrolina to Swaps.” On 16 April
2009, Swaps filed an amended complaint, joining Heyward — the
manager of the business operating on ASL’s land — as a
defendant.
On 24 September 2009, Appellants filed an amended answer
and counterclaims, denying the existence of the easement and
counterclaiming to quiet title to the property and to assert a
trespass claim against Swaps. On 1 June 2010, Metrolina filed
an answer and crossclaims against the other defendants.
On 8 May 2013, Swaps filed a verified second amended
complaint, adding E & O Lesmarchris Family Limited Partnership -4- (“E & O”) as an additional defendant and contending that the
partners of E & O “are the same as the members of Metrolina[.]”
The parties filed cross-motions for summary judgment
pursuant to Rule 56 of the North Carolina Rules of Civil
Procedure. On 20 September 2013, the trial court entered an
order (1) granting Swaps’ motion for summary judgment; (2)
denying ASL’s motion for summary judgment; (3) issuing a
permanent injunction in favor of Swaps; (4) dismissing ASL’s
counterclaims with prejudice; (5) declaring that Swaps “has a 30
foot easement across [] ASL’s Lot #3”; and (6) taxing Appellants
with costs and expenses. Appellants filed a timely notice of
appeal to this Court.
Analysis
“Our standard of review of an appeal from summary judgment
is de novo; such judgment is appropriate only when the record
shows 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.”
In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576
(2008) (citation and quotation marks omitted).
Appellants contend that the trial court erred in granting
summary judgment in favor of Swaps because (1) there was no
evidence that the original owner of the land intended to reserve -5- an easement across Lot #3; (2) Swaps was not in possession of
the land long enough to satisfy the requirements of adverse
possession; and (3) Swaps cannot demonstrate reliance upon the
existence of rights in the access driveway. Because we conclude
that an easement benefiting Lot #5 was, in fact, reserved, we
hold that summary judgment in favor of Swaps was proper.
The parcels at issue were originally owned by Clarence E.
Fisher, Jr. and his wife, Alta Mae Fisher, and Stephen M.
Garrett and his wife, Paulette L. Garrett. They conveyed this
land to B & F Rental, a North Carolina general partnership, by
means of a deed dated 6 December 1989. The deed itself makes no
reference to an easement for egress and ingress. However, the
deed references and incorporates an unrecorded survey plat by
Walter L. Gordon, dated 2 June 1988 and revised 21 November
1988. This survey plat shows a “30’ r/w for ingress, egress,
drainage & utilities” extending west along the southern side of
Lot #2, then turning to the south from Lot #2 along the western
side of Lot #3 where it abuts Lot #5, then turning to the east
along the northern side of Lot #4. Walter L. Gordon and Stephen
Garrett provided affidavit testimony that (1) the 30 foot right
of way for ingress and egress, drainage, and utilities was
depicted on the survey plat dated 2 June 1988 and revised 21 -6- November 1988; and (2) prior to 9 January 2002, this easement
was in existence and was in use for the benefit of Lot #5.
The 6 December 1989 deed from the Fishers and Garretts to B
& F Rental expressly references the “unrecorded survey plat by
Walter L. Gordon, NCRLS, dated June 2, 1988, and revised
November 21, 1988.” Similarly, the deed from B & F Rental to
ASL, in Schedule A, Tract I, incorporates this same survey by
reference. Thus, at the time that ASL took possession of the
land, it did so with record knowledge of, and subject to, the
easement. See Nelms v. Davis, 179 N.C. App. 206, 211, 632
S.E.2d 823, 827 (2006) (“A map or plat referred to in a deed
becomes part of the deed and need not be registered. Therefore,
as long as the landowner has notice of the plat through his
deed, the plat does not have to be recorded in order to effect a
right of way dedication.” (citation and quotation marks
omitted)); Price v. Walker, 95 N.C. App. 712, 716-17, 383 S.E.2d
686, 689 (1989) (holding that property owner took tract of land
subject to easement appurtenant for ingress and egress where
survey map expressly referenced in conveyance showed such
easement burdening tract).
ASL argues that its property is not burdened by the
easement because subsequent survey plats drafted by Gordon -7- eliminated the depiction of the easement and “the plat provided
to ASL’s predecessor in title did not show the easement.” ASL
also contends that the deed to ASL’s predecessor “did not
mention the reservation of an easement in its deed” such that
ASL’s chain of title did not put it on notice of the easement.
ASL asserts that based on these facts, it — rather than Swaps —
was entitled to summary judgment.
ASL’s argument, however, ignores the legal principle that
“a map or plat, referred to in a deed, becomes a part of the
deed as if it were written therein . . . .” Stanley v.
Laughter, 162 N.C. App. 322, 326, 590 S.E.2d 429, 432 (2004)
(citation omitted). As such, the 2 June 1988 and revised 21
November 1988 survey plat expressly referenced in its deed —
rather than any subsequent surveys — controls in determining
whether ASL took the property subject to an easement. Moreover,
an express reference to the easement is not necessary to reserve
an easement if the deed expressly references the survey plat
containing the easement. See id. at 327, 590 S.E.2d at 432 (“As
defendant’s deed conveying the 1.46 acre tract specifically
referred to the plat map containing the sixty-foot wide
easement, the map became a part of the deed as if it were
written therein.” (citation and internal quotation marks -8- omitted)). Therefore, we conclude that Swaps was entitled to
summary judgment.
Conclusion
For the reasons stated above, the trial court’s order is
affirmed.
Judges HUNTER, JR. and ERVIN concur.
Report per Rule 30(e).
Judge HUNTER, JR. concurred in this opinion prior to 6
September 2014.