Sandy Grove Baptist Church v. Finch

An unpublished opinion of the North Carolina Court of Appeals does not constitute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