Bissette v. Harrod

• Decision Date: 19 March 2013
• Docket Number: No. COA12–921.,COA12–921.
• Citation: 738 S.E.2d 792
• Court: North Carolina Court of Appeals
• Parties: Ted L. BISSETTE and wife, Mary Holly Bissette, individually and as cetuis que trust, Plaintiffs v. Jennifer T. HARROD; Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, a North Carolina Limited Liability Partnership; all individually and as trustees, and Scott W. Rich and wife, Laura K. Rich, Defendants.

738 S.E.2d 792

Ted L. BISSETTE and wife, Mary Holly Bissette, individually and as cetuis que trust, Plaintiffs

v.Jennifer T. HARROD; Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, a North Carolina Limited Liability Partnership; all individually and as trustees, and Scott W. Rich and wife, Laura K. Rich, Defendants.

No. COA12–921.

Court of Appeals of North Carolina.

March 19, 2013.

Appeal by plaintiffs from order entered 11 May 2012 by Judge Richard L. Doughton in Guilford County Superior Court. Heard in the Court of Appeals 10 December 2012.Kenneth T. Davies for Plaintiffs.

Tuggle Duggins & Meschan P.A., Greensboro, by Robert C. Cone and Brandy L. Mills, for Defendants.

ERVIN, Judge.

Plaintiffs Ted L. Bissette and Mary Holly Bissette appeal from an order dismissing the complaint that they filed against Defendants Scott W. Rich and Laura K. Rich ¹ for failure to state a claim upon which relief could be granted. On appeal, Plaintiffs contend that the trial court erroneously dismissed their complaint on the grounds that they had adequately pled claims sounding in breach of an express trust and for the imposition of a constructive or resulting trust which claims were not barred by the applicable statute of limitations. After careful consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be affirmed.

I. Factual Background

A. Substantive Facts

Moss Creek is a single-family residential development located in Guilford County. In 1987, the Moss Creek Homeowners Association filed a Declaration of Covenants, Conditions, and Restrictions which provided, in pertinent part, that no lot in the development “may be subdivided by sale or otherwise [so] as to reduce the total area of the Lot” except by written consent of the Association. Moss Creek Homeowners Ass'n, Inc. v. Bissette, 202 N.C.App. 222, 225, 689 S.E.2d 180, 183,disc. review denied,364 N.C. 242, 698 S.E.2d 402 (2010)( Moss Creek I ). As we noted in our opinion in Moss Creek I:

On 23 December 1993, the Bissettes acquired title to Lot 6 in Moss Creek Development, and subsequently built a house on the lot.

On 5 July 2002, the Bissettes acquired title to the parcel of property adjoining their lot known as Lot 8, and on 10 November 2003, the Bissettes recorded an Instrument of Combination combining the two lots formally. The Bissettes thereafter recorded a plat on 5 December 2003 which (1) split former Lot 8 into two pieces and labeled the new parcels Lot 1 and Lot 2, and (2) recombined Lot 6 and Lot 2 to create a new L-shaped Lot 6 which expanded the backyard of the Bissettes.... [T]he Bissettes sold Lot 1 to Scott and Laura Rich (the “Riches”) on 28 April 2005....

Moss Creek I, 202 N.C.App. at 225, 689 S.E.2d at 183. In other words, Plaintiffs originally owned Lot 6; however, after purchasing the adjoining lot, identified as Lot 8, they combined Lot 6 with part of Lot 8 before selling Defendants the remainder of Lot 8. Plaintiffs memorialized these transactions in documents titled Instrument of Combination and Exclusion Map.

On 18 May 2005, the Association and various individual Association members (the Moss Creek I plaintiffs) filed a complaint against Plaintiffs and Defendants in which they alleged that the transactions described above violated the restrictive covenant provision barring the subdivision of individual lots in Moss Creek. Moss Creek I, 202 N.C.App. at 225–26, 689 S.E.2d at 183. Subsequently, Defendants asserted a cross-claim against Plaintiffs for breach of warranty. On 6 September 2005, the parties to this case executed an agreement which provided, in pertinent part, that:

... If for any reason ... the actions reflected in the Instrument of Combination and the Exclusion Map are required to be reversed, then the Richs agree to record the Deed of Easement attached hereto as Exhibit A. The Richs agree to sign the Deed of Easement at the same time as this Agreement. The signed Deed of Easement will be held by [the Riches'] attorney, Jennifer T. Harrod, to be recorded with the Guilford County Register of Deeds if and only if the actions reflected in the Instrument of Combination and the Exclusion Map are required to be reversed, and as a result thereof, the Rich's acquire title to the aforesaid Tract II. It is expressly agreed and understood by the Parties that the Richs' actions in signing the Deed of Easement and giving it to their attorney does not constitute delivery of the Deed of Easement to the Bissettes, and that such Deed of Easement shall not become effective and enforceable unless and until the Deed of Easement is recorded with the Guilford County Register of Deeds.

On 21 December 2005, Defendants entered into a consent judgment with the Moss Creek I plaintiffs under which the Moss Creek I plaintiffs dismissed their claim against Defendants and in which the deed between Plaintiffs and Defendants was declared to be valid and to convey title to the property transferred from Plaintiffs to Defendants in fee simple absolute.

On 7 June 2006, the Moss Creek I plaintiffs “filed [an] amended complaint ... [seeking] declaratory and injunctive relief against [Plaintiffs] ... for violating the restrictive covenants.” Moss Creek I at 226, 689 S.E.2d at 183.² On 29 December 2006, Judge Ronald E. Spivey entered an order determining that Plaintiffs had violated the restrictive covenants and that none of their defenses had merit. Id. On 12 February 2008, Judge James M. Webb entered an order declaring, in pertinent part, that the Instrument of Combination and the Exclusion Map, were “null and void” and directing that the “General Warranty Deed executed by [Plaintiffs] to [Defendants] ... [be] reformed to include all of Lot 8 ... to be effective April 28, 2005[.]” As a result, Judge Webb's order awarded Defendants ownership of Lot 8 in its entirety, including the portion that Plaintiffs had added to their lot and that was designated “Tract II” in the September 2005 agreement. On 4 March 2008, Judge Webb entered another order granting summary judgment in favor of the Moss Creek I plaintiffs with respect to “any remaining claims not previously resolved or adjudicated.” Id.

Plaintiffs noted an appeal to this Court from various orders that had been entered during the course of the Moss Creek I litigation. On 2 February 2010, this Court filed an opinion in Moss Creek I affirming the orders invalidating the Instrument of Combination and Exclusion Map and vesting title in the entirety of Lot 8 in Defendants while overturning certain orders requiring Defendants to pay attorneys' fees to the Moss Creek I plaintiffs.

B. Procedural History

On 29 December 2011, more than three years and ten months after Judge Webb ordered that the deed from Plaintiffs to Defendants be reformed in such a manner as to vest title to the original Lot 8 in Defendants, Plaintiffs filed a complaint seeking relief based upon Defendants' refusal to grant Plaintiffs an easement as specified in the 6 September 2005 agreement. In their complaint, Plaintiffs asserted claims sounding in breach of fiduciary duty, constructive fraud, and breach of contract and sought the entry of an order requiring specific performance of the 6 September 2005 agreement. On 4 April 2012, Plaintiffs voluntarily dismissed their complaint against Defendants pursuant to N.C. Gen.Stat. § 1A–1, Rule 41. On 10 April 2012, Plaintiffs filed another complaint against Defendants in which they asserted claims sounding in breach of express trust, constructive fraud, and breach of fiduciary duty and sought the imposition of a resulting or constructive trust on the portion of Defendants' property that would have been subject to an easement in favor of Plaintiffs pursuant to the 6 September 2005 agreement. On 18 April 2012, Defendants filed a motion seeking dismissal of Plaintiffs' complaint pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) on the grounds that Plaintiffs' claims were barred by the three year statute of limitations applicable to actions arising from contract claims and asserting, in pertinent part, that:

1. This action is barred by North Carolina's three-year statute of limitations, N.C. Gen.Stat. §§ 1–15 and 1–52.... [F]inal Orders entered by Judge Webb ... on February 12 and March 4, 2008 ... reversed the actions of [Plaintiffs] reflected in the “Instrument of Combination” and the “Exclusion Map” ... and conveyed title to [Defendants] of the property referred to in the so-called Deed of Easement....

2. ... [Plaintiffs] could have entered suit on February 12, 2008. On that date the disputed property was transferred to [Defendants]. The transfer was not stayed or held in abeyance. The rights of [Plaintiffs], if any, under the subject agreement, became actionable on February 12, 2008. This action was not deemed commenced until December 29, 2011[.] ...

3. The subject contract cannot be enforced due to the running of the statute of limitations, because more than three years' time has elapsed since accrual of [P]laintiffs' right, if any, to sue for enforcement of the subject contract....

A hearing was held with respect to Defendants' dismissal motion on 7 May 2012. During the course of this hearing, Plaintiffs expressly abandoned their constructive fraud and breach of fiduciary duty claims and indicated that they were only pursuing their claims for breach of express trust or the imposition of a constructive or resulting trust. On 11 May 2012, the trial court entered an order dismissing Plaintiffs' complaint for failure to state a claim upon which relief can be granted.³ Plaintiffs noted an appeal to this Court from the trial court's order.

II. Legal Analysis

A. Standard of Review

“The standard of review of an order granting a [motion to dismiss pursuant to N.C. Gen.Stat. § 1A–1, Rule 12(b)(6) ] is whether the complaint states a claim for which relief can be granted under some legal theory when the...