Opinion
No. COA10-1303
Filed 16 August 2011 This case not for publication
Appeal by Defendants from order entered 21 April 2010 by Judge John E. Nobles, Jr. in Superior Court, Pender County. Heard in the Court of Appeals 12 April 2011.
Murchison, Taylor Gibson, PLLC, by Andrew K. McVey, for Plaintiffs-Appellees. Shipman Wright, LLP, by Matthew W. Buckmiller, for Defendants-Appellants.
Pender County No. 09-CVS-1311.
Plaintiffs Robert Orr and his wife, Marianne Orr (the Orrs) filed a complaint on 2 November 2009 against Defendants Robert Adrian King and his wife, Ann Johnson King (the Kings). In their complaint, the Orrs alleged trespass and sought punitive damages. The Orrs' complaint also sought a declaratory judgment establishing their right to access their property by way of a "12-foot Road" alleged to exist on the Kings' property. The Kings filed an answer, motion to dismiss, and plea of abatement on 14 January 2010, arguing that the Orrs' claims were compulsory counterclaims which should have been raised in a prior lawsuit between the parties. The trial court entered an order 21 April 2010, denying the Kings' motion to dismiss. The Kings appeal.
The prior action in which the Kings contend the Orrs' claims were actually compulsory counterclaims was decided by our Court in King v. Orr, ___ N.C. App. ___, 709 S.E.2d 602, 2011 WL 532295 (unpublished), disc. review denied, ___ N.C. ___, 710 S.E.2d 16 (2011). The underlying dispute between the parties is set forth in greater detail in our Court's previous opinion in that matter, hereinafter referred to as King v. Orr. In King v. Orr, our Court stated the pertinent factual circumstances as follows:
A.D. King and wife, Annie King, and L.E. Stanley and wife, Gaynelle Stanley, executed a quitclaim deed in 1932 conveying to A.W. King a large parcel of land known as "lot No. 1[,]" located in Pender County. This deed (the 1932 deed) was recorded in Book 429, page 46, Pender County Register of Deeds and contained the following language:
There is to be a 12 foot road excepted on the East side of the line between lots Nos. 1 2 . . . . Edens Landing was not divided by the commissioners and all of the same was assigned and allotted to Gaynelle Smith Stanley, A.D. King and A.W. King in common stock.
A.W. King died intestate in 1972 and his real property was divided among his heirs. Pursuant to the division of the property, A.W. King's heirs prepared a map entitled, "Map of Survey of A.W. King Estate Division" (the Estate map).
King v. Orr, 2011 WL 532295 at *1. The Orrs later purchased from members of the King family a portion of the A.W. King Estate Division named Tract 6 in the Estate map (the Orr Property). Id. at *2. The deed to the Orr Property contained references to a survey map which depicted certain easements alleged to exist for the benefit of the King family, as well as a King family cemetery. Id.
Members of the King family filed the complaint in King v. Orr seeking, inter alia, declaratory relief concerning the easements across the Orr Property. Id. at *3. In particular, the King family contended they had a right to use the "12 foot road" that ran along the western side of the Orr Property line. The trial court granted the Kings' motion for summary judgment as to this and other issues. Id. at *4. Our Court reversed the trial court's order granting summary judgment as to the "12 foot road" on the grounds that there remained an issue of material fact as to whether the deed in question actually related to the Orr Property. Id. at *9.
In the present case, the Orrs filed a complaint against the Kings, alleging that the Orrs possess a right to use a different "12 foot road" that runs along the east side of the real property currently owned by the Kings. The Orrs alleged that the deed to the Orr Property contains a reference to a deed that grants them the right to the use of the "12 foot road" alleged to exist on the Kings' property. In their complaint, the Orrs asserted claims for: (1) trespass, based on their allegations that the Kings dug a ditch across the 12-foot road in 1995, and placed a metal disc in the roadway in 2006; and (2) declaratory judgment, asserting that "[a] controversy exists as to the rights of the parties in and to the 12-[f]oot Road."
Although both parties claim the right to use a 12-foot road on the real property of the other, the 12-foot roads alleged arise from two separate deeds. In 1932, prior to the division of the A.W. King Estate, A.W. King and wife, Ora King, executed exchange deeds with A.D. King (the exchange deeds). The exchange deed giving rise to the Kings' claim to the "12 foot road" in King v. Orr contained the following:
[A description of real property followed by]: "There is to be a 12 foot road excepted on the East side of the line between lots Nos. 1 2. The above being lot No. 1 in the division between heirs at law.
Likewise, the exchange deed involved in the present case, allegedly giving rise to the Orrs' interest in a "12 foot road" provides:
[A description of property followed by]: There is to be a 12 foot road excepted, on the West side of the line between lots Nos. 1 and 2. The above being lot No. 2 in the division between the heirs at law.
In King v. Orr, the trial court made the following findings:
2. The 12' Exception Deed . . . provides for a "12 foot road excepted on the East side of the line between lots Nos. 1 2" and that "Edens Landing was not divided by the commissioners and all of the same are assigned and allotted to Gaynelle Smith Stanley, A.D. King and A.W. King in common stock."
3. A.D. King is . . . Robert King's grandfather. . . .
6. A.W. King owned all of the property provided to him until his death. A.W. King died intestate and in 1972, his heirs, . . . agreed upon a division of his property.
. . . .
12. A.S. King, the son of A.D. King and the father of . . . Robert King, owned property inherited from his father located immediately to the west of and abutting the property of A.W. King. A.S. King died intestate, and pursuant to a division of his property, . . . Robert King became the owner of the property abutting the property of A.W. King, and that property is presently owned by [Robert] King and his wife, [Ann King].
Id. at *4-*5. Thus, it appears that the "Lot 1" referred to in the exchange deeds was the real property that eventually was subdivided and became known as the A.W. King Estate division, a portion of which eventually was purchased by the Orrs and became what we refer to as the Orr Property. The "Lot 2" was a neighboring portion of real property which is now owned by the Kings. The 12-foot road described in the exchange deeds appear to run along either side of the property line between the two pieces of real property.
The Kings' motion to dismiss in the present case was based, in part, on N.C. Gen. Stat. § 1A-1, Rule 13(a), which defines compulsory counterclaims. See N.C. Gen. Stat. § 1A-1, Rule 13(a) (2009) ("A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction."). On appeal, the Kings contend the trial court erred by denying their motion to dismiss the Orrs' claims in the present case because the Orrs' claims were compulsory counterclaims, which should have been raised in King v. Orr.
Grounds for Appellate Review
"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. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). A trial court's order denying a motion to dismiss "does not dispose of the case" and is therefore interlocutory. Id.; see also Hendrix v. Advanced Metal Corp., 195 N.C. App. 436, 438, 672 S.E.2d 745, 747 (2009). "However, our Supreme Court has allowed immediate review of the denial of a motion to dismiss on the ground of a prior action pending." Hendrix, 195 N.C. App. at 438, 672 S.E.2d at 747. In the present case, the Kings moved for dismissal based on an argument that the Orrs' claims were compulsory counterclaims in "a prior action pending." Id. Thus, though the Kings' appeal is interlocutory, immediate review is proper in this case. Id.
Standard of Review
In Hendrix, our Court discussed the standard of review in an appeal from the denial of a motion to dismiss based on N.C.G.S. § 1A-1, Rule 13. We noted that:
The North Carolina Supreme Court has held that "[t]he purpose of Rule 13(a), making certain counterclaims compulsory, is to enable one court to resolve `all related claims in one action, thereby avoiding a wasteful multiplicity of litigation. . . .'"
Thus, once a claim has been deemed compulsory, it must "be either (1) dismissed with leave to file it in former case, or (2) stayed until the former case has been finally determined." In Curlings v. Macemore, 57 N.C. App. 200, 290 S.E.2d 725 (1982), this Court adopted a three-part test to be used to determine whether a claim is a compulsory counterclaim. Under this analysis, a court is to consider "[ (1) ] whether the issues of fact and law raised by the claim and counterclaim are largely the same[; (2) ] whether substantially the same evidence bears on both claims [;] and [ (3) ] whether any logical relationship exists between the two claims."
Hendrix, 195 N.C. App. at 439, 672 S.E.2d at 747 (alterations in Hendrix). Thus, in the present case, we analyze the Curlings factors discussed in Hendrix in relation to the Orrs' claims. Further, the "compulsory counterclaim rule applies only to claims that are mature at the time the responsive pleading is filed." Jonesboro United Methodist Church v. Mullins-Sherman Architects, L.L.P., 359 N.C. 593, 597, 614 S.E.2d 268, 271 (2005).
Discussion I. Similarity of Issues
The Kings first argue that the Orrs' claims are compulsory counterclaims because "the issues of fact and law are identical" between the complaint filed in King v. Orr and the complaint filed in the present case. The Orrs contend that the issues are not identical because the tracts of real property over which each party has claimed a 12-foot road are different.
We note that, among the issues raised by the Kings in King v. Orr, was their entitlement to use the 12-foot road which they alleged ran along the Orrs' real property line. Likewise, the Orrs' argument in the present case is that the Orrs have a right to use a 12-foot road which they contend runs along the Kings' real property line, but which they argue was provided by a different deed.
However, as discussed above, it appears that the exchange deeds, pursuant to which the Kings and the Orrs have brought their claims, described adjoining tracts of real property, and describe 12-foot road on each tract at the real property line between them. Thus, it appears that there are several similar issues involved in King v. Orr in the present case: (1) whether there was a 12-foot road excepted from a portion of either the Kings' or the Orrs' property; (2) whether there was, in effect, a 24-foot road excepted from both pieces of land, centering on the real property line between the lots; or (3) whether there was no road excepted from either of the parties' real property. In essence, these issues can be restated as follows: the trial court, in each case, must determine the existence, location, and nature of the road allegedly excepted from the real property commonly owned by the heirs and successors in interest to the parties who executed the exchange deeds in 1932. Thus, as to the first factor of the test stated in Curlings, we find that the issues of fact and law are similar in both cases and this factor weighs in favor of deeming the claims compulsory counterclaims. Hendrix, 195 N.C. App. at 439, 672 S.E.2d at 747.
II. Evidence
We must next address whether "substantially the same evidence" will be involved in the determination of both issues. In the present case, the dispute turns on the interpretation and analysis of the exchange deeds. It is true that King v. Orr involves one of the exchange deeds, while the present case involves the other. However, the determination of the Orrs' right to use the "12 foot road," as well as the Kings' claims in King v. Orr, are both alleged to arise, in part, from the Orrs' deed to the Orr Property. See King v. Orr, 2011 WL 532295 at *5-*6. The complaint in the present case also contains allegations referring to the A.W. King Estate division, the map of which was material evidence in King v. Orr. See generally id. While some of the evidence is unique to the present case, placing the issue in its full context before the trier of fact will certainly involve a review of some of the same evidence involved in King v. Orr.
III. Logical Relationship
We must next determine whether there is a logical relationship between the two actions. We find that a logical relationship clearly follows from the commonality of factual and legal determinations discussed above. The very nature of this dispute demands to be resolved in one action: it would be illogical to allow one action to determine the location of a road, or at least half of a road, and in a later action, to allow the other half of the road to be determined. Because the parties' dispute involves the location of the 12-foot road, or parts of that road, the most logical solution is to allow one trier of fact to determine all the issues. We find that this factor weighs strongly in favor of deeming these claims compulsory counterclaims, pursuant to the purpose of Rule 13(a), "`to enable one court to resolve `all related claims in one action, thereby avoiding a wasteful multiplicity of litigation[.]"'" Hendrix, 195 N.C. App. at 439, 672 S.E.2d at 747 (citation omitted).
IV. Existence of Claims
The Orrs argue that the claims in their complaint did not arise until October 2009 and, therefore, were not in existence at the time the 2007 complaint in King v. Orr was filed by the Kings. Thus, the Orrs contend their current action was not a compulsory counterclaim to the Kings' complaint in King v. Orr.
However, we note that the complaint in the present case contains the following allegation:
In 1995 the [Kings] or those acting at the [Kings'] direction and with [the Kings'] authority, dug a ditch of at least six feet in depth, approximately 400 feet in length, across the 12-Foot Road, rendering the 12-Foot Road impassable. In or about 2006, [the Kings] or persons acting at their direction placed a sizeable metal disc in the roadway beyond the ditch for the express purpose of obstructing and impeding the Orrs' lawful use of this access to the Orr Property from Watts Landing Road.
Thus, the occurrences giving rise to the Orrs' trespass claims occurred prior to 2007. However, on appeal, the Orrs argue that their claims "did not arise until the Orrs attempted to use this access in October 2009 and [the Kings] impeded it." The Orrs argue that "the event which caused the Orrs' claim to mature [was] the October 30, 2009 letter from [the Kings'] attorney[,]" which placed the Orrs on notice that the Kings would oppose the Orrs' use of the 12-foot road. However, we are unable to reconcile the Orrs' argument that they were not on notice of the Kings' intent to oppose the Orrs' use of the 12-foot road until 2009 with the Orrs' allegation in their complaint that the Kings dug a six-foot ditch across the road in 1996 and obstructed it with a "sizeable metal disc" in 2006. We find this portion of the Orrs' argument unpersuasive.
Conclusion
Analyzing the three factors of the Curlings test, we conclude that the Orrs' claims should have been brought as compulsory counterclaims in King v. Orr. Thus, the trial court should have either dismissed the Orrs' claims with leave to file them in King v. Orr, or stayed the Orrs' claims until King v. Orr was finally determined. Hendrix, 195 N.C. App. at 439, 672 S.E.2d at 747. We therefore vacate the trial court's order denying the Kings' motion to dismiss and remand to the trial court to determine whichever of the above two actions is appropriate in this case.
Vacated and remanded.
Judges STROUD and BEASLEY concur.
Report per Rule 30(e).