Opinion
NO. COA12-520
01-15-2013
WILFORD DIXON, Plaintiff v. DELIGHT GIFFORD, Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Carteret County
No. 09 CVS 732
Appeal by plaintiff from order entered 10 November 2011 by Judge Arnold O. Jones, II in Carteret County Superior Court. Heard in the Court of Appeals 10 October 2012.
Taylor and Taylor, P.A., by Nelson W. Taylor, III, for plaintiff-appellant.
Harvell and Collins, P.A., by Russell C. Alexander and Wesley A. Collins, for defendant-appellee.
, Robert C., Judge.
Wilford Dixon ("plaintiff") appeals from an order granting summary judgment in favor of Delight Gifford ("defendant") regarding plaintiff's complaint alleging trespass to real property by defendant. On appeal, plaintiff argues the trial court erred in granting summary judgment because: (1) defendant did not file a motion for summary judgment; and (2) summary judgment was erroneous as a matter of law. After careful review, we affirm the trial court's order.
Background
Plaintiff and defendant both claimed ownership to a disputed tract of land on Harkers Island, North Carolina, from which defendant removed a fence on 16 March 2009 valued by plaintiff at $1,348.00. Plaintiff filed a complaint on 20 May 2009 alleging defendant's trespass to real property. Plaintiff asserted ownership of this disputed tract through adverse possession. Plaintiff alleged that he was "in open possession of the [p]roperty, as have his predecessors in title before him, for more than fifty (50) years prior to the institution of this action." Defendant filed an answer denying plaintiff's claim and asserting that she had a chain of title for the land on which the fence was situated. In 1997, the property in dispute was the subject of a tax foreclosure sale. The resulting tax commissioner's deed, recorded on 22 October 1997, conveyed the property to Myra Lewis, defendant's mother. Lewis then deeded that property to defendant.
On 9 December 2010, the trial court ordered that a referee determine the location of the property claimed by both parties, any areas where the property claims overlap, and whether either party could prove ownership by any of the methods set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142 (1889), or by the Real Property Marketable Title Act, Chapter 47B of the North Carolina General Statutes. The referee was not to determine title by any claim of adverse possession. After hearing evidence from both parties, the referee submitted his report to the trial court which concluded that neither party could prove marketable title to the disputed property.
A hearing was held on 1 November 2011 on defendant's motion for summary judgment. In support of the motion, defendant presented the affidavits of two surveyors, Robert T. Newcomb, III and James Phillips, who both averred that the fence in question was located entirely within the property deeded to defendant by the tax commissioner. Plaintiff submitted the affidavit of a surveyor, James L. Powell ("Powell"), who asserted that it was impossible to determine whether the tax commissioner's deed contained the area of land in dispute because the description of the land in the deed was so indefinite that the tract could not be surveyed. After hearing all evidence, the trial court entered summary judgment for defendant. From this order, plaintiff appeals.
Defendant filed counterclaims for quiet title and trespass that were not addressed in the trial court's grant of summary judgment. Defendant's counterclaims, however, were voluntarily dismissed after entry of the summary judgment order.
Discussion
We review the trial court's order of summary judgment de novo. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). Under a de novo standard of review, this Court "'considers the matter anew and freely substitutes its own judgment' for that of the lower tribunal." State v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). Summary 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.'" Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576 (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).
I. Lack of Written Motion for Summary Judgment
Plaintiff first contends that summary judgment was erroneous because defendant failed to file a written motion for summary judgment with the trial court. We disagree.
Pursuant to the North Carolina Rules of Civil Procedure, motions to the trial court requesting an order must be made in writing or made orally at a hearing, trial, or session of the court in which the matter is on the calendar. N.C. Gen. Stat. § 1A-1, Rule 7(b)(1) (2011). "The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion." Id. Although defendant concedes that the physical file at the Carteret County Courthouse does not contain a copy of a motion for summary judgment, the record contains a written notice of and calendar request for a hearing on a motion for summary judgment by defendant. The notice, filed with the Carteret County Superior Court on 19 October 2011, requests the trial court to calendar a hearing date on which defendant "will petition the [c]ourt" to be heard on the summary judgment motion. The notice further provides that both parties have consented to "this action" being tried during the second week of the two-week term beginning 24 October 2011. Attached to the notice is a certificate of service certifying that plaintiff's counsel was served with the notice by hand delivery. At a hearing held on 1 November 2011, the trial court began the proceedings by announcing: "This is a motion for summary judgment which was filed by [defendant's counsel]." Plaintiff did not object to the proceedings and participated in legal arguments on the merits of the dispute. The day after the hearing, plaintiff filed a motion for leave to amend his reply to defendant's answer and counterclaims in which plaintiff acknowledged "the filing of" defendant's motion for summary judgment.
The sole authority plaintiff cites in support of his argument that summary judgment was improper is readily distinguishable. In Britt v. Allen, 12 N.C. App. 399, 400-01, 183 S.E.2d 303, 304 (1971), this Court held that the trial court's grant of summary judgment was erroneous where the trial court entered judgment on its own motion and the adverse party was not given the statutorily required 10-day notice of the hearing. The Britt Court relied on two prior decisions of this Court in which we reversed the trial court's judgment because the adverse parties were not given sufficient notice of the hearing, prejudicing their ability to prepare and present evidence. See Ketner v. Rouzer, 11 N.C. App. 483, 488-89, 182 S.E.2d 21, 25 (1971) (reversing summary judgment because the adverse party was not given prior notice at least 10 days before the hearing, and if given proper notice, could have "develop[ed] more fully the facts as to what actually occurred, and the facts so developed might support a different theory of the case"); Lane v. Faust, 9 N.C. App. 427, 429, 176 S.E.2d 381, 382 (1970) (reversing trial court's judgment and remanding for a new trial because "[the adverse party] ha[d] been denied all opportunity even to present their evidence").
N.C. Gen. Stat. § 1A-1, Rule 56(c) provides that motions for summary judgment "shall be served at least 10 days before the time fixed for the hearing."
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Here, while the record does not contain a written motion for summary judgment, unlike Britt, the trial court did not enter summary judgment on its own motion. It is apparent from the record that defendant filed a motion for summary judgment. Furthermore, plaintiff was served with written notice of the motion and the hearing on the motion 12 days before the scheduled hearing date and 13 days before the hearing was held. During that time, plaintiff prepared a memorandum of law in opposition to the motion and was able to secure the affidavit of a land surveyor to rebut defendant's evidence. Because plaintiff participated in the summary judgment hearing without objection or a request for a continuance or additional time to produce evidence, plaintiff cannot now complain of a lack of sufficient notice. See Raintree Corp. v. Rowe, 38 N.C. App. 664, 667-68, 248 S.E.2d 904, 907 (1978) (holding that the plaintiff waived the 10-day procedural notice under Rule 56(c) where the plaintiff participated in the hearing, failed to object, and failed to request a continuance or additional time to produce evidence). Thus, Britt and the cases cited therein are distinguishable, and plaintiff's argument is overruled.
II. Summary Judgment
In his second argument, plaintiff contends that the trial court erred by granting summary judgment in favor of defendant on plaintiff's action for trespass to real property. We disagree.
First, we reject plaintiff's argument that the description in defendant's tax foreclosure deed is fatally deficient. Plaintiff contends that the description of the property in defendant's deed is so indefinite that it conveyed no property interest to defendant and was insufficient to give him legal notice of the tax foreclosure sale. "[A] deed conveying land . . . must contain a description of the land, the subject matter thereof, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed . . . refers." Kelly v. Kelly, 246 N.C. 174, 178, 97 S.E.2d 872, 875 (1957) (concluding description of land in the tax foreclosure notice was not legally sufficient to identify the land); Comrs. of Beaufort v. Rowland, 220 N.C. 24, 25, 16 S.E.2d 401, 402 (1941) (concluding that the absence of parol evidence rendered the description of real property in the deed insufficient to identify the land). Here, the description of the property in defendant's tax foreclosure deed is the same description that was used in the publication notice for the tax foreclosure sale:
Lying and being situate in Harker's Island Township, Carteret County, North Carolina and being described as follows.Upon review of the record, we conclude that this description contains ample reference to extrinsic points such that it is legally sufficient to describe the land, to put plaintiff on notice that the land in question was the subject of the tax foreclosure, and to convey an interest in the land to defendant.
Beginning at the northwest corner of the Carol Lewis Heirs Property set forth and described as Parcel No. 733514228808 herein where the same intersects Harker's Island Road, the point of beginning; and running thence in a westerly direction with Harker's Island Road 60 feet, more or less; thence leaving the State Road and running in a southwesterly direction 143 feet, more or less, to a point; thence running in a southeasterly direction paralleling the state road, 52 feet, more or less, to a point; thence running in a northeasterly direction to a point in the line of Carl Lewis Heirs (Parcel No. 733514228808), and continuing to run northeast 150 feet, more or less, to a point in the State Road, the point of beginning.
Having concluded that the description of the property was legally sufficient, we analyze plaintiff's trespass claim. "The elements of trespass to real property are: (1) possession of the property by the plaintiff when the alleged trespass was committed; (2) an unauthorized entry by the defendant; and (3) damage to the plaintiff from the trespass." Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 32, 588 S.E.2d 20, 29 (2003). Plaintiff contends he is not required to establish title to the disputed property through adverse possession in order to maintain his claim but that his mere possession of the property is sufficient. We conclude the caselaw on which plaintiff relies does not support his argument.
In Matthews v. Forrest, 235 N.C. 281, 284, 69 S.E.2d 553, 555-56 (1952), the North Carolina Supreme Court concluded that the plaintiff stated a valid claim of trespass to real property where his complaint impliedly made a claim of constructive possession, "tantamount to an allegation that . . . the plaintiff had title to the property[,]" or actual possession "pursuant to permission given him by the owner of the fee[.]" In Gordner v. Lumber Co., 144 N.C. 110, 113, 56 S.E. 695, 696 (1907), the Court concluded that the plaintiff's trespass claim was properly dismissed where the plaintiff failed to establish a trespass occurred after he came into actual possession or constructive possession of the land. As to establishing actual possession, the Gordner plaintiff claimed a tenancy of the land with a third party. Id. at 111, 56 S.E. at 696. As to his claim of constructive possession, the plaintiff's deed to the land was dated after the alleged trespass and, in the alternative, the plaintiff failed to show continuous possession of the land for 21 years before the alleged trespass occurred. Id. at 113, 56 S.E. at 696. In Lee v. Stewart, 218 N.C. 287, 288, 10 S.E.2d 804, 804 (1940), where two plaintiffs alleged trespass to real property, one plaintiff was the owner of the land, and the second plaintiff was the first plaintiff's tenant. Our decision in Barnard v. Rowland, 132 N.C. App. 416, 422, 512 S.E.2d 458, 463 (1999), is distinguishable as there the parties stipulated that the plaintiffs owned the property on which the alleged trespass occurred. Furthermore, in Frisbee v. Marshall, 122 N.C. 760, 764, 30 S.E. 21, 23 (1898), the Court stated that in an action for trespass "the plaintiff need only show possession against a stranger to the title or possession." (Emphasis added.) Here, as discussed below, plaintiff cannot establish that defendant was a stranger to title or possession of the disputed land. Thus, our caselaw does not support plaintiff's argument that he must merely show possession of the disputed land to maintain his claim for trespass. We conclude, rather, that to maintain his action for trespass by possession of the land, he must have had a "legally recognized interest" in the land at the time of the alleged trespass. See Woodring v. Swieter, 180 N.C. App. 362, 376, 637 S.E.2d 269, 280 (2006) (concluding the plaintiff failed to establish "possession" of the property on which the trespass was alleged to have occurred where the plaintiff lacked a "legally recognized interest" in the land until he obtained title to the land six years after the trespass was committed).
The only legally recognized interest plaintiff claimed in the disputed property stemmed from his alleged adverse possession without color of title. "To acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period . . . ." Merrick v. Peterson, 143 N.C. App. 656, 663, 548 S.E.2d 171, 176, disc. review denied, 354 N.C. 364, 556 S.E.2d 572 (2001). In North Carolina, the prescriptive period for adverse possession without color of title is 20 years. N.C. Gen. Stat. § 1-40 (2011).
Our decision in Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643 (1985), leads us to conclude that plaintiff is barred from establishing a legal interest in the disputed property through adverse possession. In Overstreet, the plaintiffs sought title to a tract of property under the doctrine of adverse possession. Id. at 352, 330 S.E.2d at 644. More than three years before the plaintiff filed his quiet title action, title to the property in dispute had been conveyed to the defendant through a tax foreclosure sale. Id. The defendant argued the plaintiff's quiet title claim was barred by the one-year statute of limitation for challenging tax foreclosure deeds contained in N.C. Gen. Stat. § 105-377, and the trial court granted summary judgment for the defendant. Id.; see N.C. Gen. Stat. § 105-377 (2011) (providing that no action challenging the validity of title obtained from a tax foreclosure sale may be brought more than one year after the date of the recording of the resulting deed). On appeal, this Court held that the defendant was entitled to summary judgment as a matter of law because the plaintiff was given proper notice of the tax foreclosure sale and the plaintiff failed to contest the validity of the defendant's tax foreclosure title within the time required by N.C. Gen. Stat. § 105-377. Id. at 353, 330 S.E.2d at 644-45. Furthermore, we held that
the effect of a judgment foreclosing a tax lien on real property is to extinguish all rights, title and interests in the real property subject to foreclosure, including a claim based on adverse possession. The interest in the disputed property acquired by purchasers at a tax foreclosure sale is fee simple and the purchaser's title defeats claims of ownership based on adverse possession.Id. at 353, 330 S.E.2d at 645 (emphasis added).
Pursuant to Overstreet, plaintiff's rights, if any, stemming from his alleged adverse possession of the disputed property were extinguished when the property was deeded by the tax commissioner to defendant's mother on 22 October 1997. Therefore, at the time of defendant's alleged trespass in 2009, the amount of time that plaintiff could have been adversely possessing the disputed land would be approximately 11 years and eight months, well short of the 20-year possession requirement for adverse possession claims with no color of title pursuant to N.C. Gen. Stat. § 1-40. Absent his claim under the doctrine of adverse possession, plaintiff had no legally recognized interest in the property. He is therefore unable to maintain an action for trespass on the property, and defendant was entitled to summary judgment as a matter of law.
Plaintiff contends, however, that Overstreet is not dispositive because, here, the description of the property used by the tax commissioner to give publication notice of the tax foreclosure sale was insufficient to provide him with notice of the tax foreclosure sale. Because the description was insufficient to give proper notice, plaintiff contends, his claim cannot be barred by the one-year statute of limitations contained in N.C. Gen. Stat. § 105-377 to challenge the validity of a tax foreclosure title. See Comrs. of Roxboro v. Bumpass, 233 N.C. 190, 195, 63 S.E.2d 144, 147 (1951) ("No statute of limitations . . . can bar the right of a litigant to assert that he is not bound by a judgment entered in a cause of which he had no legal notice.").
As an alleged adverse possessor, plaintiff was not due personal notice of the tax foreclosure sale. Overstreet, 75 N.C. App. at 353-54, 330 S.E.2d at 645 (concluding that personal notice of a foreclosure sale need not be given to a purported adverse possessor whose alleged interest in the land is not recorded). Additionally, as we concluded above, the description of the property used in the publication notice of the tax foreclosure sale was legally sufficient to describe the disputed property, and thus to give plaintiff proper notice of the sale.
Because plaintiff was provided proper publication notice, he cannot claim that the one-year statute of limitation contained in N.C. Gen. Stat. § 105-377 does not apply. Thus, the foreclosure sale extinguished any then-existing claim of adverse possession by plaintiff and precludes plaintiff from establishing an essential element of his trespass claim. Summary judgment for defendant was proper.
Conclusion
For the reasons stated above, we affirm the trial court's order.
AFFIRMED.
Judges CALABRIA and ROBERT N. HUNTER, JR. concur.
Report per Rule 30(e).