IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-239
No. COA21-515
Filed 5 April 2022
Wilkes County, No. 19 CVS 184
BROWN OSBORNE and wife JENNIFER OSBORNE, Plaintiffs,
v.
REDWOOD MOUNTAIN, LLC, Defendant.
Appeal by plaintiffs from order entered 20 April 2021 by Judge Richard S.
Gottlieb in Wilkes County Superior Court. Heard in the Court of Appeals 9 March
2022.
Joines & James, P.L.L.C., by Timothy B. Joines and Carmen James, for
plaintiffs-appellants.
THB Law Group, by Bryan W. Tyson, for defendant-appellee.
TYSON, Judge.
¶1 Brown and Jennifer Osborne (“Plaintiffs”) appeal from a trial court’s order
converting Redwood Mountain, LLC’s (“Defendant”) motion to dismiss into a motion
for summary judgment and granting that same motion. We affirm.
I. Background
¶2 This is the second appeal from these parties before this Court. Osborne v.
Redwood Mountain, LLC, 275 N.C. App. 144, 852 S.E.2d 699 (2020). The prior appeal
resolved the issue of venue for the action. Id. Defendant is the record owner of real
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2022-NCCOA-239
Opinion of the Court
property that is located in both Alexander County and in Wilkes County
(“Defendant’s lot”). Plaintiffs are the record owners of real property, that is located
adjacent to that portion of Defendant’s lot in Wilkes County (“Plaintiffs’ lot”).
¶3 Plaintiffs filed an easement action in Wilkes County Superior Court in
November 2002, asserting Plaintiffs held an easement over the portion of Defendant’s
lot located in Wilkes County. Plaintiffs were granted a default judgment in that
easement action against Defendant’s predecessor-in-interest, Almedia Myers.
¶4 The default judgment granted in the easement action was subsequently
recorded with the Wilkes County Register of Deeds on 3 September 2003. The default
judgment entered against Ms. Myers declared the property was located entirely
within Wilkes County. In June 2018, this lot was transferred by General Warranty
Deed to Defendant and the deed was recorded with the Register of Deeds in both
Wilkes and Alexander Counties.
¶5 A dispute arose over a gate installed by Defendants in February 2019.
Plaintiffs filed a complaint alleging the gate was erected across the easement.
II. Procedural History
¶6 Plaintiffs filed their Complaint against Defendant with the Wilkes County
Superior Court in February 2019 and requested relief via declaratory judgment by
virtue of a prescriptive easement. Defendant filed a motion to change venue to
Alexander County, which was denied, and that order was affirmed by this Court in
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December 2020. Osborne, 275 N.C. App. at 150, 852 S.E.2d at 704.
¶7 Defendant filed a motion to dismiss pursuant to Rule 12(b)(6); Plaintiff filed a
motion for summary judgment. The trial court entered its order on 14 April 2021.
The order converted Defendant’s Rule 12(b)(6) motion to dismiss to a motion for
summary judgment; granted summary judgment in favor of Defendant; dismissed
Plaintiffs’ claims “without prejudice”; and, denied Plaintiffs’ motion for summary
judgment on the grounds “Plaintiff[s] ha[ve] failed to state cognizable claim for
declaratory judgment or prescriptive easement.” Plaintiffs appeal.
III. Jurisdiction
¶8 Appellate review is proper pursuant to N.C. Gen. Stat. § 7A-27(b)(1) (2021).
IV. Issues
¶9 Plaintiffs argue the trial court erred by: (1) failing to deny Defendant’s motion
to dismiss; (2) converting Defendant’s motion to dismiss into a summary judgment
motion; (3) refusing to continue Defendant’s motion to dismiss once it was converted
to a summary judgment; (4) granting summary judgment for Defendant; and, (5)
denying Plaintiffs’ motion for summary judgment.
V. Motion to Dismiss
¶ 10 Plaintiff argues the trial court erred by failing to deny Defendant’s motion to
dismiss.
A. Standard of Review
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¶ 11 “In ruling on the motion [to dismiss] the allegations of the complaint must be
viewed as admitted, and on that basis the court must determine as a matter of law
whether the allegations state a claim for which relief may be granted.” Grich v.
Mantelco, LLC, 228 N.C. App. 587, 589, 746 S.E.2d 316, 318 (2013) (citations
omitted). “This Court must conduct a de novo review of the pleadings to determine
their legal sufficiency and to determine whether the trial court’s ruling on the motion
to dismiss was correct.” Id. (citation omitted).
B. Rule 12(b)(6)
Every defense, in law or fact, to a claim for relief in any
pleading, . . . shall be asserted in the responsive pleading
thereto if one is required, except that the following
defenses may at the option of the pleader be made by
motion:
....
(6) Failure to state a claim upon which relief can be granted
N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2021) (emphasis supplied).
¶ 12 The trial court may rule on a motion to dismiss at any time prior to a verdict.
A party who makes a motion under this rule may join with
it any other motions herein provided for and then available
to him. If a party makes a motion under this rule but omits
therefrom any defense or objection then available to him
which this rule permits to be raised by motion, he shall not
thereafter make a motion based on the defense or objection
so omitted, except a motion as provided in section (h)(2)
hereof on any of the grounds there stated.
N.C. Gen. Stat. § 1A-1, Rules 12(g) (2021) (emphasis supplied).
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When a pleader has failed to state a claim upon which relief
can be granted, his adversary is now permitted by Rule
12(b)(6) to assert this defense either in a responsive
pleading or by motion to dismiss, and this motion performs
substantially the same function as the old common law
general demurrer.
Forrester v. Garrett, 280 N.C. 117, 119, 184 S.E.2d 858, 859–60 (1971).
¶ 13 Here, Defendant filed a motion pursuant to Rule 12(b)(3) on 7 May 2019, to
address whether Wilkes County was the appropriate venue. Rule 12(g) provides a
party is not required to “join with it any other motions.” N.C. Gen. Stat. § 1A-1, Rule
12(g).
¶ 14 Defendant did not waive its right to pursue a Rule 12(b)(6) motion, as such
motion can be made any time prior to a verdict and may be properly made following
a Rule 12(b)(3) motion. The trial court did not rule on the Defendant’s 12(b)(6) motion
to dismiss, but instead converted the motion as one for summary judgment. The trial
court did not err by not ruling on Defendant’s motion to dismiss. Plaintiffs’
arguments are without merit.
VI. Converting to Summary Judgment
¶ 15 “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).
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¶ 16 Plaintiffs argue Defendant is barred from a Rule 12(b)(6) defense because he
did not plead it in his answer.
¶ 17 N.C. Gen. Stat. § 1A-1, Rule 12(h)(2) provides exceptions to Rule 12(g). These
exceptions include:
A defense of failure to state a claim upon which relief can
be granted, a defense of failure to join a necessary party,
and an objection of failure to state a legal defense to a claim
may be made in any pleading permitted or ordered under
Rule 7(a), or by motion for judgment on the pleadings, or at
the trial on the merits.
N.C. Gen. Stat. § 1A-1, Rule 12 (h)(2) (2021) (emphasis supplied).
¶ 18 When a trial court hears matters beyond the facts asserted on the face of the
complaint during a motion to dismiss under Rule 12(b)(6), the motion is converted
into a Rule 12(c) motion for judgment on the pleadings, or into a motion for summary
judgment under Rule 56. “[A]ll parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule 56.” N.C. Gen. Stat. §
1A-1, Rule 12(b) and (c).
¶ 19 Plaintiffs filed a motion for summary judgment on 17 February 2021.
Plaintiffs had filed a verified complaint, and several supporting cases along with their
motion for summary judgment, as evidence to be considered for their summary
judgment motion and argued “there is no genuine issue as to any material fact.”
Defendant presented the opinion of this Court regarding the aforementioned Rule
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12(b)(3) motion to change venue in this matter. See Osborne, 275 N.C. App. at 149,
852 S.E.2d at 703.
¶ 20 Defendant admitted the existence of the 2003 recorded default judgment
establishing the easement, and presented cases in opposition to Plaintiffs’ motion for
summary judgment. Both Plaintiffs and Defendant had adequate opportunities to
present evidence, as is demonstrated in the court’s findings and conclusions in its
order.
¶ 21 Further, the trial court acted within the Rule 12(h)(2) exceptions by permitting
a conversion from a Rule 12(b)(6) failure to state a claim motion into a summary
judgment motion. See N.C. Gen. Stat. § 1A-1, Rule 12(h)(2) and Rule 56.
¶ 22 Plaintiffs’ claims for a declaratory judgment or prescriptive easement are
improper because a dispute does not exist between the parties over the validity of the
easement. The easement arising from the 2003 default judgment is recorded and
valid. The trial court considered matters outside the pleadings, properly converted
Defendant’s motion to dismiss into a motion for summary judgment, and ruled
appropriately. See N.C. Gen. Stat. § 1A-1, Rule 56.
VII. Failing to Continue Defendant’s Converted Summary Judgment Motion
¶ 23 For the reasons stated above and in light of Plaintiff’s prior pending motion for
summary judgment, we hold the trial court did not err in converting Defendant’s
motion to dismiss into a summary judgment and granting it for failure to find any
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genuine issue of material fact.
VIII. Granting Summary Judgment for Defendant
¶ 24 Also, for the reasons provided above, we hold the trial court, upon reviewing
the parties’ verified pleadings evidence, authorities and arguments acted wholly
within its authority to grant summary judgment in the absence of any disputed
genuine issues of fact. The trial court did not err in granting Defendant’s motion for
summary judgment.
IX. Denying Plaintiffs’ Summary Judgment
¶ 25 Plaintiffs’ complaint set forth a claim for relief labeled “Declaratory Judgment”
and a second alternative claim for a “Prescriptive Easement.” The trial court stated
in its order “While Plaintiffs may have a claim arising from an alleged interference
with the rights established in the 2003 Judgment [i.e. the easement rights
established thereby], they do not have a claim for declaratory judgment where there
is no dispute as to the validity of the 2003 Judgment.”
¶ 26 “[A] declaratory judgment action is appropriate when it will alleviate
uncertainty in the interpretation of a written instrument.” Integon Nat’l Ins. Co. v.
Helping Hands Specialized Transp., Inc., 233 N.C. App. 652, 658, 758 S.E.2d 27, 32
(2014) (citations and internal quotation marks omitted).
¶ 27 The necessary elements in a prescriptive easement claim require Plaintiffs to
show:
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(1) that the use is adverse, hostile, or under claim of right;
(2) that the use has been open and notorious such that the
true owner had notice of the claim; (3) that the use has been
continuous and uninterrupted for a period of at least
twenty years; and (4) that there is substantial identity of
the easement claimed throughout the twenty-year period.
Town of Carrboro v. Slack, 261 N.C. App. 525, 535, 820 S.E.2d 527, 535 (2018)
(emphasis supplied).
¶ 28 The trial court found no uncertainty in the existence of the easement recorded
in 2003. A declaratory judgment action is improper. The 2003 easement has only
been in existence for nineteen years, was only sixteen years old when Plaintiffs
brought their complaint, and this claim fails to satisfy the twenty-year requirement
for a prescriptive easement. Id.
¶ 29 The trial court, upon reviewing the parties’ sworn pleading and other material
and evidence, acted wholly within its authority to grant summary judgment after
Plaintiffs failed to establish the existence of genuine issues of material fact.
X. Conclusion
¶ 30 The trial court followed the proper statutory guidelines, heard the parties’
evidence and arguments outside the pleadings, and determined to convert
Defendant’s motion to dismiss into a motion for summary judgment and to grant the
motion. Plaintiffs’ claim for a declaratory judgment or prescriptive easement is
improper. Defendant does not dispute the existence of Plaintiffs’ easement
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established in the 2003 default judgment, that is lawfully recorded. The trial court’s
award of summary judgment for Defendant is affirmed. It is so ordered.
AFFIRMED.
Judges DIETZ and COLLINS concur.