STEEL CREEK DEVELOPMENT CORPORATION
v.
R. S. SMITH and wife, Evelyn L. Smith
v.
Earl Terry JAMES and wife, Martha S. James d/b/a Terry's Marina.
No. 130.
Supreme Court of North Carolina.
July 15, 1980.*208 Richard A. Cohan, Charlotte, for defendant-appellants.
Fairley, Hamrick, Monteith & Cobb by Laurence A. Cobb and F. Lane Williamson, Charlotte, for plaintiff-appellees and additional party appellees.
COPELAND, Justice.
Plaintiffs have moved this Court to dismiss the appeal due to defendants' failure to comply with Rule 28(b)(3) of the Rules of Appellate Procedure. Defense counsel has failed to comply with an elementary rule of appellate procedure requiring that he reference the exceptions and assignment(s) of error immediately following each question presented in the brief. Failure to follow the rules jeopardizes a client's case and we caution members of the bar to scrupulously follow the rules because appeals are subject to dismissal for such failures. However, this case will be decided on its merits and the motion is overruled.
Plaintiffs moved to dismiss the appeal in the Court of Appeals on the ground that it was an improper interlocutory appeal citing Whalehead Properties v. Coastland Corp., 42 N.C.App. 198, 256 S.E.2d 284 (1979). The Court of Appeals agreed and the appeal was dismissed. We reversed that court's decision in Whalehead and the case is reported *209 at 299 N.C. 270, 261 S.E.2d 899 (1980).
An interlocutory appeal may be taken when a substantial right of the appealing party has been affected. G.S. 1-277(a). In Whalehead we held that such a right had been affected because although summary judgment was granted for the defendant on its counterclaim thus establishing plaintiffs' liability for breach of contract, it was also ordered that defendant was not entitled to specific performance and the case was set for trial on the issue of damages. Denial of defendants' appeal would have eliminated its opportunity to obtain specific performance. Therefore, a substantial right was affected and pursuant to G.S. 1-277(a) and G.S. 7A-27(b) defendant had the right to appeal.
In Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), we held that defendant had no right to take an interlocutory appeal from an order granting plaintiff partial summary judgment on the issue of defendants' liability and setting the case for trial on the issue of damages. No substantial right of the defendant had been affected because he could wait until after trial on the issue of damages to appeal the question of liability (and any questions arising upon the trial on the issue of damages). The most that he would suffer in waiting to take an appeal only after final judgment had been entered at the conclusion of the trial would be the trial itself on the issue of damages.
Here, a mandatory injunction has been entered ordering defendants to remove the concrete anchors placed on plaintiffs' submerged lands. Unlike the situation in Tridyn, the defendants here will suffer more than a trial on the issue of damages. They will immediately suffer the consequences of complying with the order that they remove the anchors from plaintiffs' land. This order was not delayed pending the trial on the issue of damages; therefore, a substantial right of the defendants has been affected and they have the right to appeal. However, rather than remand the case to the Court of Appeals for consideration of the merits, we treat the papers filed in this appeal as a motion to bypass the Court of Appeals and allow the motion. Thus, we now turn to the merits of the appeal.
Defendants contend that it was error to grant summary judgment in plaintiffs' favor on the question of defendants' liability for trespass.
A party is entitled to summary judgment "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 judgment as a matter of law." Rule 56(c), N.C.R.Civ.Pro.
The party moving for summary judgment has the burden of proof on the motion. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972). In order for the plaintiffs to obtain summary judgment they must establish that defendants have trespassed on their land and that there is no genuine issue of material fact with respect to one or more of the essential elements of defendants' defense of equitable estoppel. We will deal with these two parts of the summary judgment issue separately.
Plaintiffs have the burden of proof on their cause of action for trespass. When the party bringing the cause of action moves for summary judgment, he must establish that all of the facts on all of the essential elements of his claim are in his favor and that there is no genuine issue of material fact with respect to any one of the essential elements of his claim. In other words, the party must establish his claim beyond any genuine dispute with respect to any of the material facts. An issue is genuine if it may be maintained by substantial evidence. Id. An issue is material if the facts as alleged would constitute a legal defense, would affect the result of the action or would prevent the party against whom it is resolved from prevailing in the action. Id. If the movant carries his burden *210 of establishing prima facie that he is entitled to summary judgment then his motion should be granted unless the opposing party responds and shows either that a genuine issue of material fact exists or that he has an excuse for not so showing. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). If the movant fails to carry his burden, the opposing party does not have to respond and summary judgment is not proper regardless of whether he responds or not. 2 McIntosh, North Carolina Practice and Procedure § 1660.5 (Supp. 1970).
Defendants admitted in their answers to interrogatories that the two encroachments of which plaintiffs complain do extend beyond the boundaries of the property owned by the defendants. However, defendants deny that they are trespassing on the submerged land owned by the plaintiffs. However, in James' deposition he admits that many of the anchors holding down the boathouses launched in 1971 and 1972 are beyond the boundaries of the property owned by him and his wife. Furthermore, Judge Snepp stated in an order filed on 27 March 1979 that an "interrogatory with respect to ownership of the land in question by the Additional Parties Plaintiff is moot in that the Defendants have never answered Paragraph 13 of the Plaintiffs' cause of action as set forth in the Amendment to Complaint filed August 13, 1976 and that, therefore, the allegations contained in that paragraph are deemed to be admitted."
Paragraph 13 of the Amendment to the Complaint reads as follows:
"That since the institution of this suit, the Plaintiff Steel Creek Development Corporation has conveyed the land in question to the Additional Parties Plaintiff, R.S. Smith and wife, Evelyn L. Smith, by deed duly recorded in the Office of the Register of Deeds for Mecklenburg County, and the Plaintiff corporation has been dissolved."
From all of the evidence contained in the record we hold that plaintiffs have established beyond genuine dispute that anchors connected to the boathouses built and launched by defendants in 1971 and 1972 trespass on submerged land owned by the plaintiffs. This showing does not alone entitle plaintiffs to summary judgment on the issue of liability because defendants raised the defense of equitable estoppel.
Plaintiffs have the burden of proof on their motion for summary judgment, Koontz v. City of Winston-Salem, supra, and defendants have the burden of proof on their defense. When the party without the burden of proof on the substantive claim or defense moves for summary judgment he is entitled to it if he can meet the burden of proving that any one or more the essential elements of the opposing party's claim or defense is nonexistent. Moore v. Fieldcrest Mills, Inc., supra. This is true because the party with the burden of proof on the claim or defense must have evidence on each and every one of the essential elements of his claim or defense before he can get to the jury. If his proof is lacking on any one of those essential elements then he has not made out his claim or defense.
There are several ways in which the movant may show that he is entitled to summary judgment. He may produce his own evidence, often through affidavits, of the nonexistence of one or more of the essential elements of the opposing party's claim or defense. As noted above, when the movant does not carry his burden of producing such evidence summary judgment is inappropriate whether or not the opposing party responds. When the movant does carry his burden, he is entitled to summary judgment unless the opposing party responds with evidence showing that a genuine issue of material fact exists or that he has an excuse for not so showing. When the movant carries his burden of producing evidence on the motion and the opposing party responds, often with affidavits, then movant will obtain a forecast of the opposing party's evidence and such a forecast may reveal that that party does not have sufficient evidence to support one or more of the essential elements of his claim or defense. 2 McIntosh, supra. The movant may show through the evidence *211 produced through discovery that the opposing party cannot produce evidence to support one or more of the essential elements of his claim or defense. Moore v. Fieldcrest Mills, Inc., supra. This is another manner in which to obtain a forecast of the opposing party's evidence. Thus, a party may succeed on a summary judgment motion upon the strength of his own evidence or upon the weakness of the opposing party's evidence when such a forecast of that evidence can be obtained in discovery or in response to movant's prima facie showing on the motion.
Here, both parties moved for summary judgment at the conclusion of the discovery process and relied upon the evidence produced during discovery. From this evidence, a forecast of defendants' evidence on his estoppel defense was obtained. The trial judge was correct in granting plaintiffs' motion for summary judgment on the issue of liability because in addition to adequately establishing the trespass plaintiffs showed that defendants' evidence was insufficient with respect to one or more of the essential elements of the estoppel defense.
"The doctrine of estoppel rests upon principles of equity and is designed to aid the law in the administration of justice when without its intervention injustice would result.
. . . . .
"Equitable estoppel arises when an individual by his acts, representations, admissions, or by his silence when he has a duty to speak, intentionally or through culpable negligence induces another to believe that certain facts exist, and such other person rightfully relies and acts upon that belief to his detriment." Thompson v. Soles, 299 N.C. 484, 486-87, 263 S.E.2d 599, 602 (1980) (citations omitted.)
Defendant James stated in his deposition that he discussed the plans for the boathouses, their construction and the purchasing of the materials with Smith before he started to work. Smith knew the length of the boathouse built in 1971 because he looked at the construction plans. That boathouse has twenty-four boat slips. Between eight and ten of them had been completed and were in the water when surveyors came at Smith's request to locate the boundary between plaintiffs' land and defendants' land. Prior to that, but still at a point after actual construction had begun, Smith "walked out on the boathouse and says `you're going to have to cut this thing in two right here.' . . . [James] asked him what he was talking about and he said `this is my property out here over the lake.'"
The following then appears in the record in the narrative of defendant's deposition:
"After . . . [the surveyors left] I went ahead and completed the erection and the placement of all the boat slips located in boat house `A' [built in 1971] over Lake Wylie. I increased the number of boat slips from eight to ten to forty-eight. That is both boat house `A' and `B' [built in 1972]. [Two boathouses with twenty-four slips in each one.] Boat house `B' was built after suit was brought. When you built all of the slips that constituted boat house `B' you knew Mr. Smith objected and I figured that he would object to anything that I built."
Defendants were informed of Smith's objections as soon as some of the slips were placed in the water. Defendant went ahead and completed the first boathouse and built the second one after plaintiff had brought suit. Thus, it is clear that defendants did not rely to their detriment on plaintiffs' actions or inaction. They proceeded in the face of plaintiffs' objections which were lodged soon enough to put defendants on notice to stop construction until the issue of trespass was resolved. Summary judgment was properly entered for the plaintiffs on the issue of liability and it was proper to order defendants to remove the anchors from plaintiffs' submerged land and to set the case for trial on the issue of damages.
Defendants also contend that it was error to refuse to allow him to take *212 R.S. Smith's deposition. On the facts of this case, there was no error.
The lawsuit was filed in 1972 and was still pending in 1979. The parties engaged in various forms of discovery during this seven year period. On 9 October 1978 plaintiffs submitted two interrogatories to the defendants. On 16 January 1979 Judge Snepp entered an order stating that the matter had been heard and that the case would be ready for trial as soon as defendants answered those two interrogatories. He ordered that defendants file their answer to those interrogatories on or before 1 February 1979 and that the case be placed on the ready calendar as soon as the answers to the interrogatories were filed.
On 13 February 1979 plaintiff sought to have defendants' answer stricken due to their failure to comply with the judge's order that they file answers to the interrogatories. Defendants served a "Subpoena for Oral Deposition" on R.S. Smith which was received on 24 February 1979. Defendants' answers to plaintiffs' interrogatories were verified by James on 16 February 1979. Defendants also moved on that date that plaintiffs be sanctioned due to Smith's failure to appear for the taking of his deposition.
In an order entered 27 March 1979 this request for a sanction against plaintiffs was denied. Judge Snepp ordered that defendants not be allowed to take Smith's deposition and he noted in the order "that this is one of the oldest cases pending in . . . [the trial court], and that this matter should be brought on for trial without further delay."
There was no abuse of discretion in the actions of the trial judge. As a matter of fact, Judge Snepp is to be commended for the manner in which he sought to expedite the proceedings. Hammer v. Allison, 20 N.C.App. 623, 202 S.E.2d 307, cert. denied 285 N.C. 233, 204 S.E.2d 23 (1974). The parties had approximately seven years to conduct discovery in this case. After a hearing, it was ordered on 16 January 1979 that the case be placed on the ready calendar as soon as the answers to interrogatories were filed because the case would then be ready for trial. Judge Snepp was justified in refusing to tolerate a further delay tactic on the part of the defendants. Ample opportunity for discovery was allowed. The time for discovery was not unjustifiably, unfairly or inequitably cut short to the prejudice of the defendants.
For the reasons stated, we hold that the Court of Appeals' decision to dismiss the appeal was erroneous. The judgment of Judge Snepp is affirmed and the case is remanded to the trial court for trial on the issue of damages.
REMANDED.