Duke Energy Corp. v. Malcolm, COA05-755.

CourtCourt of Appeal of North Carolina (US)
Citation630 S.E.2d 693
Docket NumberNo. COA05-755.,COA05-755.
PartiesDUKE ENERGY CORPORATION, A North Carolina Corporation, Tax Identification No. 56-0205520, Plaintiff, v. Wendell Corey MALCOLM and Callabridge/Granite, LLC, Defendants.
Decision Date20 June 2006

Parker, Poe, Adams & Bernstein, LLP, by Irvin W. Hankins, III and John W. Francisco, Charlotte, for plaintiff-appellee.

Kilpatrick Stockton, LLP, by Noelle E. Wooten, Charlotte, for defendant-appellant Callabridge.

James E. Scarbrough, Concord, for defendant-appellant Malcolm.

LEVINSON, Judge.

Wendell Corey Malcolm and Callabridge/Granite, LLC (defendants) appeal from the trial court's entry of summary judgment in favor of plaintiff Duke Energy Corporation. We affirm in part and reverse in part.

The pertinent facts may be summarized as follows: Defendants own a 48 acre tract of land located at the intersection of State Highway 16 and Mount Holly-Huntersville Road in Mecklenburg County (the property). Plaintiff purchased a 199 foot-wide easement across the property from the defendants' predecessor in interest in 1977. The agreement containing the easement was subsequently set forth in a consent judgment on 25 August 1977. The consent judgment grants plaintiff, inter alia, "[t]he right for [Duke Energy] at any time to clear said strip and to keep said strip clear of any and all structures, trees, fire hazards and other objects of any nature." However, the consent judgment reserves to the defendants all other rights "not inconsistent with the rights therein contained to Duke Energy."

Callabridge purchased the property on 25 August 2000 subject to the plaintiff's easement. On 31 May 2002, Callabridge sold a portion of the land to defendant Wendell Corey Malcolm. Sometime before 24 July 2002, Callabridge developed the land into a shopping center complex and constructed a concrete and stone "Callabridge Landing" sign as well as a pole and single wire fence on the easement. Callabridge also planted several Crepe Myrtle trees within the dimensions of the easement.

Plaintiff objected to the placement of the trees and other structures on its easement and, as a result, filed the subject action. Plaintiff contends that the consent judgment containing its easement rights required that the land be clear of the encroachments that Callabridge placed within the dimensions of the easement. Therefore, plaintiff maintains, defendants must remove the encroachments and refrain from further placement of impermissible structures within the boundaries of its easement. Callabridge contends that the transfer to plaintiff constituted an easement, not a transfer in fee simple, and that as long as the trees and structures do not interfere with Duke's ability to transmit electricity, it is permitted to utilize its land in a manner consistent with its reserved rights under the terms of the 1977 consent judgment.

The trial court entered summary judgment in favor of plaintiff on 14 December 2004, concluding that there was no genuine issue of material fact, reasoning that the language of the consent judgment granted plaintiff the unambiguous right to clear the right of way of any trees, structures, fire hazards and other objects of any nature. The trial court also concluded that the plaintiff's right to clear applied to the encroachments at issue in the instant case. Defendants appeal.

On appeal, defendants contend that the trial court erred in granting summary judgment for the plaintiff because there exist genuine issues of material fact. Specifically, the defendants contend that there exists a material factual dispute of whether defendant's use of the land interfered with plaintiff's rights under the easement. We disagree.

Under N.C. Gen.Stat. § 1A-1, Rule 56(c) (2005), summary judgment is proper when "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 a judgment as a matter of law." Thus, "the standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law. Further, the evidence presented by the parties must be viewed in the light most favorable to the non-movant." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998) (citation omitted).

Consent judgments delineating easement rights are foremost contracts. See Hemric v. Groce, 154 N.C.App. 393, 397, 572 S.E.2d 254, 257 (2002) ("A consent judgment is a contract between the parties entered upon the record with the sanction of the trial court and is enforceable by means of an action for breach of contract[.]"). In interpreting a contract, our courts adhere to the following central principles:

"[T]he goal of construction is to arrive at the intent of the parties when the [contract] was [written]. Where a [contract] defines a term, that definition is to be used. If no definition is given, non-technical words are to be given their meaning in ordinary speech, unless the context clearly indicates another meaning was intended. The various terms of the [contract] are to be harmoniously construed, and if possible, every word and every provision is to be given effect. . . . [I]f the meaning of the [contract] is clear and only one reasonable interpretation exists, the courts must enforce the contract as written; they may not, under the guise of construing an ambiguous term, rewrite the contract or impose liabilities on the parties not bargained for and found therein."

Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C. 293, 299-300, 524 S.E.2d 558, 563 (2000) (quoting Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 505-06, 246 S.E.2d 773, 777 (1978)).

The trial court's determination of whether the language in a consent judgment is ambiguous is a question of law and therefore our review of that determination is de novo. Bicket v. McLean Securities, Inc., 124 N.C.App. 548, 553, 478 S.E.2d 518, 521 (1996). "An ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties." Glover v. First Union National Bank, 109 N.C.App. 451, 456, 428 S.E.2d 206, 209 (1993).

This Court in Hanner v. Power Co., 34 N.C.App. 737, 737, 239 S.E.2d 594, 595 (1977), held that the enumerated right granted to the defendant "to keep said strip of land free and clear of any or all structures, trees and other objects of any nature . . ." was unambiguous. In Hanner, plaintiffs owned a track of land that was servient to an easement held by the defendant. Id. In addition, the plaintiff had the reserved right to grow "such crops and maintain[] such fences as may not interfere with the use of said right of way by the Power Company[.]" Id. at 738, 239 S.E.2d at 595. After defendant removed trees that plaintiff had planted within its easement, the plaintiff filed suit against defendant for the alleged unauthorized cutting of the trees. Id. The trial court granted, and this Court later affirmed, summary judgment in favor of defendants. Id. at 738-39, 239 S.E.2d at 595. The Hanner Court held that, as a matter of law, such contractual language was unambiguous. Id. In so holding, the Hanner Court reasoned that plaintiff's right to grow crops was specifically limited by the contractual provision that gave the defendant the express right to clear trees and other objects from its right of way. Id.

We next turn to an application of the foregoing principles to the instant case. The 1977 consent judgment between plaintiff and Dunn Development Corporation, predecessors in interest to defendants, awarded the following enumerated rights to the plaintiff:

The right to enter said strip of land . . . and the right, within the limits of said strip of land to erect, construct, reconstruct, replace, maintain and use towers, poles, wires, lines, cables, and all necessary and proper foundations, footings, crossarms and other appliances and fixtures for the purpose of transmitting electric power and for [Duke's] communication purposes, together with a right of way on, along, and in all of the said strip of land; together with the right for [Duke] at any time to make relocations, changes, renewals, substitutions, and additions on or to said structures within said strip; the right for [Duke] at any time to clear said strip and keep said strip clear of any and all structures, trees, fire hazards and other objects of any nature[.] (emphasis added).

Duke also acquired the right to trim and cut trees outside of the easement that might endanger its equipment, as well as the right of ingress and egress. However, the easement reserved to defendants:

all other rights to said strip of land not inconsistent with the rights and easements herein contained, but [Callabridge] cannot: (1) construct streets, roads, water lines . . . across said strip at an angle of less than forty-five (45) degrees . . . nor closer than 20 feet to any structures placed upon the right of way by [Duke] . . . (2) maintain fences that are not safely removed from [Duke's] structures . . . (3) dig wells on said strip; (4) place . . . underground storage tanks on said strip; (5) use said strip for burial grounds; (6) interfere with or endanger the construction, operation, or maintenance of [Duke's] facilities. (emphasis added).

Here, we are guided by the principles articulated in Hanner. The defendant's reserved power to retain all other rights "not inconsistent with the rights therein granted" is limited by plaintiff's "right . . . at any time to clear said strip and to keep said strip clear of any and all structures, trees, fire hazards and other objects of any...

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