An unpublished opinion of the North Carolina Court of Appeals does not constitute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.
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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.
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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
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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
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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).
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“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
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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
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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.
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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
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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).