Opinion
No. COA09-1309
Filed 18 May 2010 This case not for publication
Appeal by Defendants from order and judgment entered 27 January 2009 by Judge Charles H. Henry in Carteret County Superior Court. Heard in the Court of Appeals 22 February 2010.
Ward and Smith, P.A., by Ryal W. Tayloe and Michael J. Parrish, for Plaintiff-Appellee.
McAfee Law, P.A., by Robert J. McAfee, and White Allen, PA, by Moses D. Lasitter, for Defendants-Appellants.
Carteret County No. 07 CVS 553.
I. Procedural History
This case concerns the ownership of property of adjacent neighbors and the breach of those neighbors' agreement fixing the boundary line between their respective parcels. The action commenced with the filing of a complaint by North Carolina Railroad Company ("Plaintiff") against Mart L. Bell, Jr. and the Mary Bell Family, LLC on or about 21 May 2007. Plaintiff sought compensatory and punitive damages for breach of contract and conversion, and a preliminary injunction to enjoin Defendants from any further breaches of contract. Also on or about 21 May 2007, Plaintiff filed a separate motion for a preliminary injunction.
Following a hearing on Plaintiff's motion on 4 June 2007, the trial court signed an order granting Plaintiff the injunctive relief it sought. On or about 13 June 2007, Plaintiff filed an amended complaint maintaining the same claims but adding Mart L. Bell, Inc. as an additional defendant and adding further factual allegations. Mart L. Bell, Jr., the Mary Bell Family, LLC, and Mart L. Bell, Inc. (collectively, "Defendants") filed an answer denying liability; raising the affirmative defenses of laches, statute of limitations, and res judicata; and counterclaiming for modification or waiver of contract.
Plaintiff thereafter sought and obtained a show cause order against Defendants for violating the terms of the preliminary injunction. On 5 November 2007, the trial court entered a contempt order, concluding that Defendants had willfully violated the preliminary injunction. The trial court did not impose punishment, but reserved the future right to do so.
The matter was tried without a jury on 17-18 November 2008 in Carteret County Superior Court. On 27 January 2009, the trial court entered an order and judgment finding Defendants liable for breach of contract; ordering them to pay $34,939.27 in compensatory damages; ordering specific performance of the contract; finding that Plaintiff had not abandoned its right-of-way; and ordering Defendants to pay $7,500 in punitive damages.
From the trial court's order and judgment, Defendants appeal.
II. Factual Background
This dispute involves a piece of property ("the `Y' property") in Morehead City, Carteret County, North Carolina, and a boundary line agreement between the parties (or their predecessors) dated 22 December 1995 ("the agreement"). The agreement provides, inter alia, as follows:
The agreement was between North Carolina Railroad Company and, inter alia, Mary G. Bell and Mart L. Bell and Sons Paving Contractors, Co. Mary G. Bell is deceased. Her son Mart L. Bell, Jr., a named defendant in this case, is a member of the Mary Bell Family, LLC and Vice President of Mart L. Bell, Inc. Mart L. Bell and Sons Paving Contractors, Co. is a misnomer for Mart L. Bell, Inc. See discussion infra.
THIS AGREEMENT, made this the 22 day of December, 1995, by and between North Carolina Railroad Company, a North Carolina Corporation of Wake County, North Carolina, parties of the first part; and . . . Mary G. Bell; Mart L. Bell and Sons Paving Contractors, Co., a North Carolina Corporation; of Carteret County, North Carolina, parties of the second part.
. . . .
THAT WHEREAS, the parties hereto are the owners of adjoining lands situated in Morehead Township, Carteret County, North Carolina, the lands of the parties of the first part, being known as the "Y" property of the North Carolina Railroad, Carteret County, North Carolina; and the lands of parties of the second part being described in Deed Book 364, Page 87; Deed Book 498, Page 365; Book 471, Page 257; Deed Book 471, Page 258; Deed Book 260, Page 138 and other instruments recorded in the Office of the Register of Deeds of Carteret County.
AND WHEREAS, some question has arisen concerning the dividing line between the property of the parties of the first part and that of the parties of the second part; said property being the subject of litigation in Civil Action Number 89 CVS 1063 Carteret County, North Carolina.
AND WHEREAS, it is the desire of the parties hereto definitely to fix and establish the boundary line between their said properties;
NOW, THEREFORE, the said parties of the first part and second part[] in consideration of the premises and the sum of One ($1.00) Dollar, each to the other in hand paid, the receipt of which is hereby acknowledged, do hereby covenant and agree that the boundary line between their said properties shall be as follows:
. . . .
It is mutually understood and agreed by and between the parties hereto that the line hereinabove fixed shall be the northern and eastern line of the property of the parties of the first part and the southern and western line of the property of the parties of the second part, and the said parties of the first part do hereby grant, bargain, sell and convey unto said parties of the second part, all of the land in which they have any interest whatsoever lying north and east of said line; and the said parties of the second part do hereby grant, bargain, sell and convey unto the said parties of the first part all land in which they have any interest lying south and west of said line.
Sometime during 2006, it came to Plaintiff's attention that Defendants had placed equipment, fencing, and various materials and debris across the agreed boundary line and onto Plaintiff's property. By letter dated 7 December 2006, Plaintiff asked Defendants to remove all such fencing, equipment, materials, and a tin shed from Plaintiff's property. Defendants failed to comply with the request.
During the week of 12 February 2007, Plaintiff gave notice orally and in writing to Defendants of Plaintiff's intent to clear its property and again requested that the items be immediately removed from the property. Defendants ultimately cooperated with Plaintiff in the removal of all such items from the property. Plaintiff, with the assistance of a surveyor, erected a fence on its property immediately to the south and west of the agreed boundary line and also erected large double swing gates at Bridges Street.
During this same week of 12 February 2007, Plaintiff had rail materials delivered and placed on its property lying to the south and west of the boundary line. Several weeks later, Defendants tore down the fence and gates Plaintiff had erected; placed the tin shed back across the agreed boundary line; and again placed materials, debris, and equipment across the boundary line onto Plaintiff's property. Defendants also moved Plaintiff's rail materials from Plaintiff's property across the boundary line onto Defendants' property. These actions precipitated the filing of this lawsuit.
The parties, through their pretrial order, stipulated to the following facts: (A) on 20 April 2004, certain railroad tracks that connected the tracks on the "Y" property and the tracks running down the middle of Arendell Street were removed by the North Carolina Department of Transportation and have not been replaced; and (B) the location of the boundary line described in the agreement is shown on that map prepared by Stroud Engineering, PA, entitled "North Carolina Railroad Property [`Y'] Tract" dated 16 August 2005.
III. Discussion
Defendants first argue that the trial court erred in granting Plaintiff's motion in limine to prevent Defendants from introducing evidence regarding the defenses of lack of consideration to support the boundary agreement and fraud.
"A motion in limine seeks `pretrial determination of the admissibility of evidence proposed to be introduced at trial,' and is recognized in both civil and criminal trials." Heatherly v. Industrial Health Council, 130 N.C. App. 616, 619, 504 S.E.2d 102, 105 (1998) ( quoting State v. Tate, 44 N.C. App. 567, 569, 261 S.E.2d 506, 508, rev'd on other grounds, 300 N.C. 180, 265 S.E.2d 223 (1980)). "The trial court has wide discretion in making this advance ruling and will not be reversed absent an abuse of discretion." Id.
Moreover, "[a] ruling on a motion in limine is merely preliminary and not final." Kor Xiong v. Marks, 193 N.C. App. 644, 647, 668 S.E.2d 594, 597 (2008) (citation and internal quotation marks omitted). "A trial court's ruling on a motion in limine is subject to change during the course of trial, depending upon the actual evidence offered at trial." Id. (citation and quotation marks omitted). Therefore, "[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence." State v. Conaway, 339 N.C. 487, 521, 453 S.E.2d 824, 845, cert. denied, 516 U.S. 884, 133 L. Ed. 2d 153 (1995).
"A party objecting to an order granting . . . a motion in limine, in order to preserve the evidentiary issue for appeal, is required to . . . attempt to introduce the evidence at the trial. . . ." State v. Hill, 347 N.C. 275, 293, 493 S.E.2d 264, 274 (1997) (citation and quotation marks omitted). If the trial court prevents the party from offering such evidence, the party must then submit an offer of proof, setting forth the substance of the excluded evidence. See Kor Xiong, 193 N.C. App. at 648, 668 S.E.2d at 597 (holding plaintiff waived appellate review of the grant of a motion in limine when he failed to make an offer of proof of the evidence to the trial court during trial).
In the present case, the trial court granted Plaintiff's motion in limine to preclude Defendants from offering evidence or raising the defenses of lack of consideration and fraud with regard to the agreement because Defendants failed to affirmatively plead those defenses, in violation of N.C. Gen. Stat. § 1A-1, Rule 8(c), and failed to plead the circumstances constituting fraud with particularity, in violation of N.C. Gen. Stat. § 1A-1, Rule 9(b).
After the trial court granted Plaintiff's motions, Defendants did not attempt to offer any evidence to show a lack of consideration for the agreement or fraud. Furthermore, Defendants failed to make an offer of proof setting forth the substance of any evidence showing a lack of consideration for the agreement or fraud that would have been offered but for the trial court's ruling.
Defendants argue that "[b]y way of a request for judicial notice, [D]efendants proffered some evidence in support of the defense of lack of consideration: the unpublished Ferguson slip opinion from this Court. North Carolina Railroad Company v. Ferguson Builders Supply, Inc. et al." However, this slip opinion was merely a proposed exhibit listed in the pretrial order that Defendant "may offer" at trial. Furthermore, Defendants offered no evidence to show how the opinion would support a defense of lack of consideration in this case.
Accordingly, Defendants have waived appellate review of this issue. The assignments of error upon which this argument is based are dismissed.
Defendants next argue that the trial court erred in holding that Defendants breached the boundary line agreement, that Plaintiff was entitled to specific performance of the agreement, and that Plaintiff did not abandon its right-of-way. We disagree. Defendants first contend that Defendant Mart L. Bell, Inc. was not bound by the agreement because "Mart L. Bell and Sons Paving Contractors, Co." was listed as a party to the agreement instead of "Mart L. Bell, Inc." Defendants' argument is meritless.
When a party is misidentified in a contract, such misnomer does not render the contract void where the available evidence reveals the identity of the real party intended to be bound. Tomika Invs., Inc. v. Macedonia True Vine Pentecostal Holiness Church of God, Inc., 136 N.C. App. 493, 496, 524 S.E.2d 591, 594 (2000); Troy N. C. Gold Mining Co. v. Snow Lumber Co., 170 N.C. 273, 277, 87 S.E. 40, 42 (1915). In Gold Mining Company, a deed was executed to the trustees of the "Troy (N.Y.) and North Carolina Gold Mining Company." At the time of the conveyance, however, there was no corporation by that exact name, the correct name of the corporation being "Troy and North Carolina Gold Mining Company." In discussing the disparity in the corporate name, our Supreme Court stated that
[a]s to the plaintiff being described by the wrong name in the deed, this is at most but a misnomer or latent ambiguity, which can be explained by parol evidence so as to fit the description to the person or corporation intended. . . . A corporate name is essential, but the inadvertent or mistaken use of the name is ordinarily not material if the parties really intended the corporation by its proper name. If the name is expressed in the written instrument, so that the real name can be ascertained from it, this is sufficient; but if necessary, other evidence may be produced to establish what corporation was intended.
Gold Mining Company, 170 N.C. at 277-78, 87 S.E. at 42.
In this case, the agreement was executed by Mart L. Bell as Vice President of "Mart L. Bell and Sons Paving Contractors, Co." Such entity never existed. Instead, Mart L. Bell was Vice President of "Mart L. Bell, Inc." Defendants concede that "the parties agreed that the agreement should have named `Mart L. Bell, Inc.' as the correct corporate entity, as shown by Secretary of State records and deposition testimony." Furthermore, Mart L. Bell testified that the use of the name "Mart L. Bell and Sons Paving Contractors, Co." in the agreement was a mistake by the lawyer who prepared the agreement.
Accordingly, we conclude that there is only a latent ambiguity in the agreement which was not sufficient to void the contract as a matter of law or to release Mart L. Bell, Inc. from its obligations under the agreement.
Defendants further argue that the trial court erred in determining that Plaintiff had not abandoned the property because the presumption of abandonment under N.C. Gen. Stat. § 1-44.1 should apply. We are not persuaded by Defendants' argument.
Pursuant to N.C. Gen. Stat. § 1-44.1,
[a]ny railroad which has removed its tracks from a right-of-way and has not replaced them in whole or in part within a period of seven (7) years after such removal and which has not made any railroad use of any part of such right-of-way after such removal of tracks for a period of seven (7) years after such removal, shall be presumed to have abandoned the railroad right-of-way.
N.C. Gen. Stat. § 1-44.1 (2007). This statute "refers to the abandonment of easements" and has "no application to land owned in fee simple." McLaurin v. Winston-Salem Southbound Ry. Co., 323 N.C. 609, 612, 374 S.E.2d 265, 267 (1988).
Defendants acknowledge in the agreement that Plaintiff is the "owner[]" of the land "known as the `Y' property of the North Carolina Railroad, Carteret County, North Carolina[.]" The trial court found as fact that "[u]nder the terms of the agreement, the [D]efendants have acknowledged the [P]laintiff owns the property in the `Y' and have conveyed all of their rights to the property south and west of the boundary line in fee simple to the [P]laintiff." Defendants did not assign error to this finding of fact and, thus, it is binding on this Court on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
Defendants nonetheless contend that the agreement is insufficient to support "[P]laintiff's claimed fee simple title to the `Y' property[.]" However, as Defendants concede that the parties to the agreement have "acknowledged that the other were owners of the respective properties[,]" Defendants are now estopped from offering evidence to the contrary.
"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." Thompson v. Soles, 299 N.C. 484, 486, 263 S.E.2d 599, 602 (1980). "The rule is grounded in the premise that it offends every principle of equity and morality to permit a party to enjoy the benefits of a transaction and at the same time deny its terms or qualifications." Id. at 487, 263 S.E.2d at 602.
Here, the agreement states that "some question has arisen concerning the dividing line" between Plaintiff's and Defendants' property and, thus, the parties entered into the agreement "to fix and establish the boundary line between their said properties[.]" In order to create the binding agreement regarding the location of the boundary line, the parties to the agreement acknowledged each other's title in their respective properties and conveyed to one another any right and interest that each may have had on the other's side of the boundary line. Although Defendants now assert that their intent in executing the agreement was "to establish a boundary line between the Defendants' property and the possessory railroad right-of-way of the Plaintiff on the `Y' Property[,]" Defendant's argument is disingenuous and contravenes the plain wording of the agreement.
The trial court found that "the agreement was entered into without fraud, mistake[,] or undue influence." Defendants did not assign error to this finding of fact and, thus, it is binding on this Court on appeal. Koufman, 330 N.C. at 97, 408 S.E.2d at 731. Moreover, Defendants "enjoy[ed] the benefits" of establishing the boundary line through the agreement. Thompson, 299 N.C. at 487, 263 S.E.2d at 602. Accordingly, Defendants are now estopped from denying "the terms or qualifications" of the agreement, id.; see Mobley v. Griffin, 104 N.C. 112, 115, 10 S.E. 142, 142 (1889) (explaining that a plaintiff may prove title by estoppel), and the trial court did not err in determining that Plaintiff had not abandoned the property.
Furthermore, even if N.C. Gen. Stat. § 1-44.1 were applicable, the conditions of that statute have not been met. The statute provides that "if a railroad removes its tracks from a right-of-way and does not replace them for seven years and does not make any railroad use of the right-of-way during that time it is presumed to have abandoned the right-of-way." McLaurin, 323 N.C. at 612, 374 S.E.2d at 267. In this case, tracks are still present and plainly visible on the "Y" property. Furthermore, the parties stipulated that Plaintiff disconnected the tracks located on the "Y" property from the tracks running down Arendell Street on 20 April 2004, three years prior to the initiation of this suit, and Plaintiff's former tenant, P G Grain Company, made active use of the rail line on the "Y" property until 2003, four years prior to the initiation of this suit. Thus, the tracks on the "Y" property have been actively used within the requisite seven-year period. Accordingly, under the plain language of N.C. Gen. Stat. § 1-44.1, Defendants are not entitled to a presumption of abandonment.
Other than a conclusory statement that "[t]he trial court erred by finding that the Defendants breached the boundary line agreement," Defendants do not advance any specific argument that the trial court erred in finding that Defendants' conduct prior to and during the course of this litigation breached the agreement. Nonetheless, our review of the record shows that in 2006, Defendants placed equipment, stumps, brush, roofing materials, and other debris over the boundary line established in the agreement and erected a chain link fence across a portion of the "Y" property. In 2007, after Plaintiff had expended nearly $30,000 to clear the "Y" property and erect a fence along the boundary line, Defendants tore down the fence and gate; moved a tin shed from their property onto the "Y" property; and moved Plaintiff's rails from the "Y" property to Defendants' property. In July of 2007, after Plaintiff had again cleared the "Y" property, Defendants moved equipment, debris, and other materials onto the "Y" property for a third time. These facts support the trial court's finding that Defendants willfully violated the terms of the agreement.
The order and judgment of the trial court are affirmed.
AFFIRMED.
Chief Judge MARTIN and Judge WYNN concur.
Report per Rule 30(e).