UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1768
ALLEN TOBY HEDGEPETH, As Trustee Under The Allen Toby
Hedgepeth Declaration of Trust, Dated May 30, 2001,
Plaintiff - Appellant,
v.
PARKER’S LANDING PROPERTY OWNERS ASSOCIATION, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:07-cv-00055-F)
Argued: May 12, 2010 Decided: July 2, 2010
Before GREGORY, Circuit Judge, C. Arlen BEAM, Senior Circuit
Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, and Samuel G. WILSON, United
States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by unpublished opinion. Judge Wilson wrote the
opinion, in which Judge Gregory and Senior Judge Beam joined.
ARGUED: Norman Wilson Shearin, Jr., VANDEVENTER BLACK, LLP,
Kitty Hawk, North Carolina, for Appellant. Charles E. Thompson,
II, Elizabeth City, North Carolina, for Appellee. ON BRIEF:
Allison A. Holmes, VANDEVENTER BLACK, LLP, Raleigh, North
Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
WILSON, District Judge:
Plaintiff-appellant, Allen Toby Hedgepeth (“Hedgepeth”),
brought an action pursuant to the district court’s diversity
jurisdiction against Parker’s Landing Property Owners
Association, Inc. (the “Association”), defendant-appellee,
seeking a declaratory judgment that he has an easement over an
established drive owned by the Association benefiting an
adjoining tract of land he purchased at a foreclosure sale.
Alternatively, Hedgepeth sought a judgment declaring that quasi-
estoppel precludes the Association from denying the existence of
that easement. The district court entered a declaratory
judgment recognizing two historical easements but not the
easement Hedgepeth claimed and Hedgepeth appealed. We affirm.
I.
In 1894, a tract of land in Currituck County, North
Carolina, was severed from common ownership into two tracts.
The smaller of the two tracts – the “Harbor Shore Tract” – is
bordered on the east by the Currituck Sound. The only access to
the Harbor Shore Tract is through the larger tract – Parker’s
Landing Subdivision (“Parker’s Landing”) – which borders the
Harbor Shore Tract on the west and south. U.S. Highway 158, the
primary means of travel in the area, makes up the western border
3
of Parker’s Landing. Both Harbor Shore and Parker’s Landing
were used for agricultural purposes until the late 1980s when
steps were taken to develop them for residential use. Before
this development, access to the Harbor Shore Tract was available
via two historical easements that cross Parker’s Landing. 1
In 1987, two brothers, Donnie and Lannie Belangia, along
with their wives (the “Belangias”), purchased the Harbor Shore
Tract intending to develop it into a residential subdivision
called Harbor Shore. At that time, Midgette Development
Enterprises, Inc. (“MDE”), which was owned by members of the
Midgette family, owned Parker’s Landing. The Belangias
approached the Midgettes to assess their interest in jointly
developing the tracts. Both the Belangias and the Midgettes
hired William T. Robbins (“Robbins”), a surveyor, to prepare
plats of their respective properties and to obtain county
approval for their proposed subdivisions. 2 Robbins succeeded in
obtaining preliminary plat approval for both tracts from the
Currituck County Board of Commissioners (the “Board of
Commissioners”). The Currituck County Planning Board (the
1
These easements, one of which provides ten foot access,
the other twenty-five, are dirt paths that cross over Parker’s
Landing onto the Harbor Shore Tract.
2
The Belangias and the Midgettes hired Robbins
independently and later learned that he was working on both of
their proposed subdivisions. (J.A. 203.)
4
“Planning Board”), however, only granted approval of Parker’s
Landing’s final plat because Harbor Shore lacked the fifty foot
access required for development.
After the Planning Board denied approval of Harbor Shore’s
final plat, the Belangias continued negotiating with the
Midgettes in an effort to reach an agreement for an easement
over Parker’s Landing’s main road, Parker’s Landing Drive (the
“Drive”). Despite extensive negotiations and the exchange of
various proposed agreements, those negotiations, according to
the deposition testimony of the Midgettes and the Belangias,
ultimately failed to result in an executed agreement. Jody
Midgette, MDE’s Vice President, testified that negotiations had
never produced an agreement, that “there was nothing . . . final
ever done” (J.A. 160); Lannie Belangia responded “no” to the
question of whether they had ever come to an agreement for
access (J.A. 202); and when asked whether negotiations had ever
resulted in written agreements, Donnie Belangia testified: “I
think there [were] some prepared. But none were ever signed.”
(J.A. 216-17.) Left without the access necessary for
development, the Belangias permitted Harbor Shore to enter
foreclosure.
Before purchasing the property at foreclosure in January of
1993, Hedgepeth claims he: inspected the property (which he
accessed via one of the historical easements); checked records
5
at the county tax office and courthouse; reviewed statements
contained in minutes of the Board of Commissioners’ meeting of
October 17, 1988, (the “Board Minutes”), which state that
“approval of a permanent easement through Parker’s Landing to
[Harbor Shore] has been proposed and has been signed for the
County Attorney to review”; and examined the 1989 Final Plat of
Parker’s Landing (the “Final Plat”), which contains a note, Note
#7, which cryptically states: “additional area required for 50'
R/W as per agreement with Harbor Shore Subdivision.” Hedgepeth,
however, neither conducted a title search, nor contacted either
the Belangias or the Midgettes to inquire about access to the
property. Only after he purchased the property at the
foreclosure sale 3 did he contact the County Attorney’s office to
search for the agreement that he claims he inferred from the
cryptic note on the Final Plat. No one at the County Attorney’s
office knew of the alleged agreement.
After purchasing the Harbor Shore Tract at the foreclosure
sale, Hedgepeth sent employees to view the property, which they
accessed via the Drive. The Midgettes warned Hedgepeth’s
employees that they had no right to use the Drive, and if they
did not vacate the premises, the Midgettes would have them
3
He assigned his bid to the Hedgepeth Development
Corporation (“HDC”), and he later became trustee for the
property on HDC’s behalf pursuant to a declaration of trust.
6
arrested. Fourteen years after purchasing the Harbor Shore
Tract, Hedgepeth filed this diversity action against the
Association – the successor in title to MDE to Parker’s
Landing’s “common areas,” including the Drive 4 – seeking a
judgment declaring that Parker’s Landing is subject to an
easement benefiting the Harbor Shore Tract via the Drive and
declaring that quasi-estoppel precludes the Association from
denying the existence of that easement.
Hedgepeth moved for summary judgment. The district court
denied the motion, but nevertheless concluded that there were no
issues of material fact for trial and proceeded to rule that the
evidence supported neither the easement Hedgepeth claimed nor
the elements of his quasi-estoppel claim. Although the district
court rejected Hedgepeth’s claims, it concluded that Parker’s
Landing is subject to two historical easements benefiting the
Harbor Shore Tract. Accordingly, it entered a judgment
declaring Hedgepeth’s rights as to those historical easements
but not the easement Hedgepeth claimed. 5 Hedgepeth filed this
4
In 2005, the Association became the owner of the “common
areas” of Parker’s Landing, while MDE and the Midgettes retained
plots within the subdivision.
5
The district court said the following about the procedural
posture of the case:
In light of the awkwardness of the standard of review
applicable to a plaintiff’s motion for summary
(Continued)
7
appeal. Neither party raises the case’s procedural posture as
an issue on appeal. 6 Rather, Hedgepeth frames the issue simply
as: “Was Hedgepeth conveyed a right-of-way over [the] Drive from
[the Harbor Shore Tract] to U.S. Highway 158 by the final plat
of Parker’s Landing subdivision?” (Appellant’s Brief at 1.)
II.
Hedgepeth’s opening brief contends that “Note # 7 on the
final plat of the [Parker’s Landing] Subdivision is an express
grant of a right-of-way over the Drive to the [Harbor Shore]
Tract.” (Appellant’s Brief at 8.) At oral argument, however,
judgment in a case to be tried to the court without a
jury, the court has taken some license in its
approach. Regardless of the angle from which this
case is viewed, or with which party a shifting-burden
inquiry begins, Hedgepeth, who ultimately must prove
he is entitled to judgment as a matter of law,
unequivocally has demonstrated that he cannot do so
insofar as he seeks declaration of an easement for use
of Parker’s Landing Drive to subdivide and develop
[the Harbor Shore Tract].
(J.A. 454-55.)
6
Because the denial of Hedgepeth’s motion for summary
judgment is interlocutory, and we have jurisdiction only over
final orders and judgments, we questioned our jurisdiction sua
sponte. We now conclude, however, that because the judgment
order appealed from had the effect of resolving all issues, it
is a final order. See Caitlin v. United States, 324 U.S. 229,
233 (1945) (“A ‘final decision’ generally is one which ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.”).
8
Hedgepeth conceded that the Final Plat standing alone could not
create an easement and that “you’ve got to go somewhere else” –
i.e. to the underlying agreement – “to get the full story.”
Thus, it seems to us that Hedgepeth has conceded the first issue
and has raised another issue in its stead. We think this
concession effectively ends the analysis because arguments not
raised in a party’s opening brief ordinarily are waived. See
United States v. Bowles, 602 F.3d 581 (4th Cir. 2010); Equal
Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597 (4th Cir.
2010). Nevertheless, we consider the issue that Hedgepeth
raised at oral argument.
Though his arguments lack some clarity, Hedgepeth appears
to argue that the Midgettes and the Belangias reached an
agreement for an easement, which the Final Plat reflects.
According to Hedgepeth, the Final Plat satisfies the statute of
frauds. We assume arguendo, though in no way decide, that a
final plat can constitute a writing that satisfies the statute
of frauds. We still agree with the district court, however,
that the evidence cannot support the conclusion Hedgepeth would
have us reach – that the negotiating parties ever consummated an
agreement for an easement. Indeed, the unequivocal testimony of
record of the parties whom Hedgepeth contends reached an
agreement proves nothing was ever finalized.
9
We look to North Carolina law to determine what is
necessary for the creation of an express easement. Because an
easement is an interest in land (and thus subject to North
Carolina’s statute of frauds) words of intent to create an
easement must be memorialized and signed by the party to be
charged. See N.C. GEN STAT. § 22-2; Singleton v. Haywood Elec.
Membership Corp., 565 S.E.2d 234, 238 (N.C. App. 2002).
Although “[n]o particular words are necessary” to create an
express easement, Z.A. Sneeden’s Sons, Inc. v. ZP No. 116,
L.L.C., 660 S.E.2d 204, 209 (N.C. App. 2008) (quoting Hensley v.
Ramsey, 199 S.E.2d 1, 10 (N.C. 1973)), and “any words which
clearly show the intention to give an easement . . . are
sufficient to effect that purpose, provided the language is
certain and definite in its terms . . ., [t]he instrument should
describe with reasonable certainty the easement created and the
dominant and servient tenements.” Id. Whatever the language
used, the parties must intend to create an easement in order for
an express easement to arise. Thus, if the parties intend that
an easement arise only upon the execution of a contract (with
the exchange of consideration and the required meeting of the
minds), no easement arises until the contract is executed.
Here, Hedgepeth’s argument that the Final Plat is some
reflection of an underlying agreement for an easement can only
take him so far because the Final Plat does not “clearly show
10
the intention to give an easement.” Z.A. Sneeden’s Sons, Inc.,
660 S.E.2d at 209. If anything, it merely provides notice that
it is necessary to look elsewhere for an agreement. Hedgepeth
conceded as much at oral argument when he admitted it is
necessary to look beyond the Final Plat to find an agreement
creating an easement over the Drive.
Of course, in light of the deposition testimony of the
negotiating parties, a search for that agreement proved
fruitless because the parties never finalized their negotiations 7
and thus, no easement ever arose. 8 There is simply no evidence
that all of the required parties ever had a meeting of the minds
as to all of the terms, which is required to form a binding
contract. 9 See Normile v. Miller, 326 S.E.2d 11, 15 (N.C. 1985)
7
The Court notes that Hedgepeth’s counsel acknowledged as
much at oral argument when he stated that “what was going on
here . . . was that the developer kept getting up time and time
again raising the consideration that was going to be paid.”
8
No easement arose because the negotiating parties, as
indicated by their depositions and their actions, intended that
no easement would be granted until they had executed a contract
conveying the easement in exchange for an agreed upon
consideration. No consideration was ever agreed upon and thus,
no easement was created.
9
There is evidence that a draft of the proposed agreement
was signed by the Midgettes and Lannie Belangia and his wife but
not by Donnie and his wife. The district court took note that
an affidavit submitted by Lannie, when compared with his earlier
deposition testimony, raises some question as to whom the
affidavit refers when it states that “a copy of the agreement
for access . . . was signed by us . . . .” In light of the
(Continued)
11
(“It is axiomatic that a valid contract . . . can only exist
when the parties assent to the same thing in the same sense, and
their minds meet as to all terms.”) (citations omitted). We
think the conduct of the parties to the supposed agreement
speaks volumes on this point. Unable to secure an agreement,
the Belangias abandoned their venture and permitted their
property to enter foreclosure. Yet, nearly fifteen years after
the parties believed their negotiations had failed to bear
fruit, Hedgepeth, the purchaser at foreclosure and a stranger
with no firsthand knowledge of the parties’ negotiations,
essentially claims that the negotiating parties were simply
wrong to believe that they had not entered into a binding
contract. Under the circumstances, Hedgepeth’s claim seems
especially untenable.
Undaunted, Hedgepeth points to another secondary source –
the October 17, 1988, Board Minutes – which ambiguously
reference an easement through Parker’s Landing to Harbor Shore.
The Planning Board, however, ultimately denied approval of
Harbor Shore’s final plat because Harbor Shore lacked the
required access. Against this backdrop (and the deposition
testimony of the Midgettes and Donnie Belangia that no agreement
between all the parties was ever reached, the “us” Lannie refers
to includes himself and his wife, not his brother or his
brother’s wife.
12
testimony of the parties to the alleged agreement), it is hard
to find any significant probative value in the Board Minutes.
In sum, we find no fault in the district court’s
determination that the Midgettes and the Belangias never reached
an understanding for the creation of an easement.
III.
Hedgepeth contends that because the Association’s
predecessor in title obtained approval of its final plat by
representing to the Planning Board that it had given the
proposed Harbor Shore development a right-of-way over the Drive,
quasi-estoppel precludes the Association from taking the
position that there is no easement over the Drive. 10 The
Association counters that there are no facts to support this
claim. We agree and affirm on this ground.
Quasi-estoppel, or estoppel by benefit, see Carolina
Medicorp., Inc. v. Bd. of Trustees of State of N.C. Teachers’
and State Employees’ Comprehensive Major Med. Plan, 456 S.E.2d
116, 120 (N.C. App. 1995), provides that when a party takes and
retains benefits under a transaction or instrument, which it has
10
It is Hedgepeth’s position that because the Association
is in privity with MDE and the Midgettes, then to the extent
they would be estopped, the Association is estopped. See
Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870, 893 (N.C.
2004).
13
the right to accept or reject, that party’s retention of the
benefits acts to ratify the transaction or instrument such that
the party cannot avoid its obligation or effect under the
transaction or instrument by later taking a position
inconsistent with the transaction or instrument, see Parkersmith
Properties v. Johnson, 525 S.E.2d 491, 495 (N.C. App. 2000).
We find the record devoid of any support for Hedgepeth’s
claim. First, although there is evidence that the Midgettes
represented that they were working with the Belangias to reach
an agreement, there is no evidence that they represented to
either the Board of Commissioners or the Planning Board that the
negotiating parties had in fact reached an agreement for access.
At best, Hedgepeth’s claim seems strained, given that the
Planning Board granted approval of Parker’s Landing’s final
plat, but not Harbor Shore’s final plat because Harbor Shore had
not secured the fifty foot access necessary for development.
Second, Hedgepeth is hard-pressed to identify any benefit the
Association received. Therefore, we agree with the Association
that there are no facts to support this claim.
IV.
For the reasons stated, the judgment of the district court
is affirmed.
AFFIRMED
14