Opinion
No. COA11–875.
2012-04-3
David W. BATTS v. Hazel M. BATTS.
Rountree & Boyette LLP, by Jonathan W. Puryear, for plaintiff-appellee. Richard E. Batts PLLC, by Richard E. Batts, for defendant-appellant.
Appeal by defendant-appellant from judgment entered 22 March 2011 and an order entered 9 May 2011 by Judge Anthony Brown in Edgecombe County District Court. Heard in the Court of Appeals 28 November 2011. Rountree & Boyette LLP, by Jonathan W. Puryear, for plaintiff-appellee. Richard E. Batts PLLC, by Richard E. Batts, for defendant-appellant.
ELMORE, Judge.
Hazel M. Batts (defendant) appeals from judgment entered 22 March 2011 concluding that defendant is a trespasser upon plaintiff's property. Defendant also appeals from an order entered 9 May 2011 denying defendant's motion for a new trial. After review, we affirm.
This is an action arising from a dispute between David W. Batts (plaintiff) and defendant, who are brother and sister and the children of Ms. Ernestine Batts. Ms. Batts lives in a manufactured home on plaintiff's property. Defendant purchased the home for Ms. Batts, and plaintiff allowed defendant to put the manufactured home on plaintiff's property after receiving a hardship permit from Edgecombe County.
On 26 January 2011, plaintiff filed a complaint for civil trespass as well as summary ejectment. A hearing was held on 14 March 2011, and on 22 March 2011 the trial court concluded that defendant was a trespasser against plaintiff's land and ordered defendant to move the manufactured home from plaintiff's property within 45 days of the date of the hearing. Defendant promptly filed a motion for a new trial pursuant to Rule 59 of the North Carolina Rules of Civil Procedure, and the trial court conducted a hearing on 18 April 2011. Nevertheless, the trial court denied defendant's motion for a new trial. Defendant now appeals.
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On appeal, defendant argues that: (I) the trial court erred in concluding that defendant was a trespasser; (II) the trial court erred by denying defendant's motion for a new trial; and (III) this Court may void the previous judgment based on plaintiff's failure to join a necessary party.
I
Defendant first argues that the trial court erred by concluding that defendant was a trespasser against plaintiff's land. Specifically, defendant argues that plaintiff failed to prove all of the elements of civil trespass. We disagree.
“The standard of review on appeal from a judgment entered after a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment. The trial court's conclusions of law are reviewed de novo.” Shepard v. Bonita Vista Properties, L.P., 191 N.C.App. 614, 628, 664 S.E.2d 388, 397 (2008), aff'd, 363 N.C. 252, 675 S.E.2d 332 (2009) (internal citations and quotation marks omitted).
“To establish a trespass claim, plaintiff must prove that (1) plaintiff was in possession of the land at the time of the alleged trespass; (2) defendant made an unauthorized entry on the land; and (3) plaintiff was damaged by the alleged invasion of his possessory rights.” Taha v. Thompson, 120 N.C.App. 697, 703–04, 463 S.E.2d 553, 557 (1995) (citing Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952)). “Any unauthorized entry on land in the actual or constructive degree of force used or whether actual damage is done.” Keziah v. R.R., 272 N.C. 299, 311, 158 S.E.2d 539, 548 (1968). Further, “[a]ctual damages do not have to be proven, since any unauthorized entry at least entitles plaintiff to nominal damages.” Taha, 120 N.C.App. at 704, 463 S.E.2d at 557 (citation omitted).
While defendant argues that the trial court did not make any findings of fact or conclusions of law supporting plaintiff's claim of trespass, we conclude otherwise. Here, the trial court made the following pertinent findings of fact regarding plaintiff's trespass claim:
3. Plaintiff is the current owner of real property located in Edgecombe County, North Carolina, specifically known as 1827 Kingsboro Road, Rocky Mount, North Carolina, 27801....
4. By virtue of a Conditional Use Permit issued by Edgecombe County, the Defendant's manufactured home is located on Plaintiff's property, whose address is 1817 Kingsboro Road, Rocky Mount, North Carolina, 27801.
5. Prior to filing this lawsuit, Plaintiff requested Defendant to remove herself and her manufactured home from Plaintiff's property.
6. Defendant refused to remove herself and her home from Plaintiff's property.
Based on these findings, the trial court then made the following conclusions of law:
2. Defendant is a trespasser against Plaintiff's land.
3. Plaintiff is damaged from the continued trespass and is entitled to nominal damages.
Defendant also challenges the sufficiency of the evidence to support the trial court's findings of fact and conclusions of law. However, we must note that defendant declined to include in the record a transcript from the hearing conducted on 14 March 2011. In circumstances such as this, we have previously held that “[w]ithout evidence in the record of error by a trial judge, the appellate court is not required to and should not assume error on the part of the trial judge.” Faulkenberry v. Faulkenberry, 169 N.C.App. 428, 430, 610 S.E.2d 237, 238–39 (2005) (citation omitted). Further, without a transcript of the proceedings below, the review available in this Court is limited:
The burden is on an appealing party to show, by presenting a full and complete record, that the record is lacking in evidence to support the trial court's findings of fact. Our Rules of Appellate Procedure state: The record on appeal in civil actions shall contain so much of the evidence as is necessary for an understanding of all errors assigned. Furthermore, where the evidence is not in the record, it will be assumed that there was sufficient evidence to support the findings. In other words, when the evidence is not in the record the matter is not reviewable. Since the record on appeal is devoid of evidence ... we are unable to determine what evidence was before the trial court and are unable to perform a meaningful review of this [issue].
Walker v. Penn Nat. Sec. Ins. Co., 168 N.C.App. 555, 560, 608 S.E.2d 107, 110–11 (2005) (citations, quotation marks, ellipses, and brackets omitted).
Thus, without a record of the evidence presented at trial, we cannot address defendant's arguments regarding the sufficiency of plaintiff's evidence as to the elements of civil trespass nor can we determine whether any of the trial court's findings were supported by competent evidence. Therefore, we must conclude that the trial court's findings of fact do support its conclusions of law and ensuing judgment. Accordingly, we hold that the trial court did not err in concluding that defendant was a trespasser against plaintiff's land.
II
Defendant also argues that the trial court erred by denying defendant's motion for a new trial. Specifically, defendant argues that a new trial should have been granted based on surprise that ordinary prudence could not have guarded against and insufficiency of the evidence or when the verdict is contrary to law. We disagree.
Under N.C. Gen.Stat. § 1A–1, Rule 59, “[a] new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes or grounds. guarded against ... [or][i] nsufficiency of the evidence to justify the verdict or that the verdict is contrary to law.” N.C.R. Civ. P. 59(a)(3), (7) (2011). A “trial court's decision on a motion for a new trial under Rule 59 will not be disturbed on appeal, absent abuse of discretion.” Greene v. Royster, 187 N.C.App. 71, 78, 652 S.E.2d 277, 282 (2007) (citation omitted). “Abuse of discretion results where the [trial] court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.” State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988). However, “it is plain that a trial judge's discretionary order pursuant to G.S. 1A–1, Rule 59 for or against a new trial upon any ground may be reversed on appeal only in those exceptional cases where an abuse of discretion is clearly shown.” Worthington v. Bynum, 305 N.C. 478, 484, 290 S.E.2d 599, 603 (1982).
Here, the trial court denied defendant's motion for a new trial based on the following findings of fact:
5. That the court's order dated March 21, 2011 was justified by the evidence presented at the trial of the matter and was based on the law, and the evidence presented was sufficient to justify the decision of the court.
6. That the court's order dated March 21, 2011 was not the product, in whole or in part, of fraud, surprise to the Defendant nor accident.
The “surprise” alleged in defendant's motion was that she believed an earlier ruling dismissing with prejudice plaintiff's action for summary ejectment “was a final judgment and the case became res judicata,” such that plaintiff was collaterally estopped from raising “essentially the same action” again. While it may come as a surprise to defendant, a quick review of our General Statutes and case law reveals that summary ejectment and civil trespass are distinct claims. See Adams v. Woods, 169 N.C.App. 242, 244, 609 S.E.2d 429, 431 (2005) (noting that summary ejectment is restricted to cases where the relation between the parties is that of landlord and tenant [an element not required for civil trespass claims] ); see alsoN.C. Gen.Stat. § 42–26 (2011).
The doctrine of res judicata precludes the re-litigation of claims adjudicated in a previous action, while the related doctrine of collateral estoppel precludes the re-litigation of issues. Bockweg v. Anderson, 333 N.C. 486, 491–92, 428 S.E.2d 157, 161 (1993). “Where the second action between the same parties is upon a different claim, the prior judgment serves as a bar only as to issues actually litigated and determined in the original action.” Id. at 492, 428 S.E.2d at 161.
Here, according to the stipulations of the parties' appellate counsel, plaintiff's summary ejectment action was dismissed with prejudice in 2006 because the trial court found and concluded that no landlord-tenant relationship existed between plaintiff and defendant. This prior court ruling precluded plaintiff from re-litigating his claim for summary ejectment or the issue of the landlord-tenant relationship. However, neither question was part of the civil trespass proceedings here. Thus, had defendant undertaken the “ordinary prudence” of researching the elements of the claims against her or our jurisprudence on res judicata and collateral estoppel, she could have guarded against any surprise on these matters.
Additionally, and as stated herein supra, “[w]ithout evidence in the record of error by a trial judge, the appellate court is not required to and should not assume error on the part of the trial judge.” See Faulkenberry, 169 N.C.App. at 430, 610 S.E.2d at 238–39 (citation omitted). Accordingly, we cannot conclude that the trial court's decision to deny defendant's motion for a new trial was so arbitrary that it could not have been the result of a reasoned decision. Therefore, defendant's argument is overruled.
III
Last, defendant contends that this Court may void the previous judgment based on plaintiff's failure to join a necessary party. Specifically, defendant argues that plaintiff failed to join his wife who is a necessary party to this lawsuit as co-owner of the property on which defendant's manufactured home rests. We disagree.
According to Rule 19 of our Rules of Civil Procedure, “those who are united in interest must be joined as plaintiffs or defendants[.]” N.C. Gen.Stat. § 1A–1, Rule 19(a) (2011). “A person is united in interest [, pursuant to Rule 19 of the Rules of Civil Procedure,] with another party when that person's presence is necessary in order for the court to determine the claim before it without prejudicing the rights of a party before it or the rights of others not before the court.” McCraw v. Aux, 205, N.C.App. 717, ––––, 696 S.E.2d 739, 741 (2010), review dismissed,364 N.C. 617, 705 S.E.2d 361 (2010), and review denied,364 N.C. 617, 705 S.E.2d 362 (2010) (citation omitted). “A necessary party is one whose presence is required for a complete determination of the claim, and is one whose interest is such that no decree can be rendered without affecting the party.” Id. at ––––,696 S.E.2d at 740 (citation omitted).
In a recent case decided by this Court regarding trespass, the defendant stated in his counterclaim “that he owns real property with his wife in fee simple absolute” and the Court emphasized that “the deeds included in the record on appeal confirm that defendant and his wife, Wanda Rogers, own the real property as tenants by the entirety[ ] ....“ See Boone v. Rogers, –––N.C.App. ––––, ––––, 708 S.E.2d 103, 104 (2011). Based on the omission of “one of the owners of an undivided interest in the real property which is the subject of the dispute ...,” this Court intervened ex mero motu and raised the issue of necessary parties. Id. at ––––, 708 S.E.2d at 104–05.
However, the record in the case sub judice is devoid of any evidence demonstrating that plaintiff and his wife own the property where defendant's manufactured home is located as tenants by the entirety. Further, plaintiff does not allege that he owns the property with his wife in fee simple absolute or as tenants by the entirety. As such, we cannot conclude that plaintiff's wife is a necessary party whose presence is required for complete determination of the claim. Therefore, defendant's argument is overruled, and we affirm the order and judgment of the trial court.
Affirmed. Chief Judge MARTIN and Judge STEPHENS concur.
Report per Rule 30(e).