Brown v. Lattimore Living Trust Dated Aug. 3, 2011, By & Through Its Trs.

• Citation: 826 S.E.2d 827,264 N.C.App. 682
• Decision Date: 02 April 2019
• Docket Number: No. COA18-941,COA18-941
• Parties: Dennis T. BROWN and Raquel Hernandez, Plaintiffs, v. LATTIMORE LIVING TRUST DATED AUGUST 3, 2011, BY AND THROUGH its Trustees, William Timothy LATTIMORE and Pax Miller Lattimore; and Proland Development, Inc., Defendants.
• Court: Court of Appeal of North Carolina (US)

264 N.C.App. 682

826 S.E.2d 827

Dennis T. BROWN and Raquel Hernandez, Plaintiffs,

v.LATTIMORE LIVING TRUST DATED AUGUST 3, 2011, BY AND THROUGH its Trustees, William Timothy LATTIMORE and Pax Miller Lattimore; and Proland Development, Inc., Defendants.

No. COA18-941

Court of Appeals of North Carolina.

Filed: April 2, 2019

Harris & Hilton, P.A., Raleigh, by Nelson G. Harris, for plaintiff-appellants.

Burns, Day & Presnell, P.A., Raleigh, by James J. Mills, for defendant-appellees.

ARROWOOD, Judge.

Dennis T. Brown ("Brown") and Raquel Hernandez ("Hernandez") (together "plaintiffs") appeal from order granting summary judgment in favor of the Lattimore Living Trust (the "trust"), trustees William Timothy Lattimore and Pax Miller Lattimore (the "trustees"), and Proland Development, Inc. ("Proland") (together "defendants"). For the following reasons, we affirm in part and reverse in part.

I. Background

Plaintiffs initiated this action against defendants with the filing of a summons and a complaint in Wake County District Court on 17 May 2017. The complaint alleged that plaintiffs and the trust own adjacent property along Eton Road in Raleigh. Beginning in 2013, the trust made improvements to its property, "including installation of a brick wall and a metal fence along the property line separating the [properties]." Proland was hired by the trustees as the contractor for the wall. Plaintiffs alleged that during the installation of the brick wall, Proland came onto and damaged their property, and then failed to restore their property to its original condition as was agreed upon. Plaintiffs further alleged that the metal fence crosses a drainage ditch and, during heavy rains, causes debris to accumulate in the ditch and divert water, causing erosion on plaintiffs’ property. Based on these allegations, plaintiffs asserted claims against defendants for (1) trespass, (2) breach of contract, and (3) nuisance.

After Proland filed its initial response on 12 June 2017 denying the material allegations, on 7 July 2017, plaintiffs filed a motion for summary judgment as to Proland with an attached affidavit of Brown. Proland filed an amended answer on 20 July 2017, in which it asserted various affirmative defenses. The trust and the trustees filed an answer with affirmative defenses and counterclaims on 27 July 2017. On 14 August 2017, Proland's president filed an affidavit.

Plaintiffs’ motion for summary judgment was set to be heard on 17 August 2017; but when no one appeared for the hearing, the trial court dismissed the motion without prejudice. Later that afternoon, plaintiffs filed a withdrawal of their motion for summary judgment as to Proland, which appears to have been signed two days prior. Plaintiffs subsequently filed a response to the trust's counterclaims on 25 August 2017.

On 20 March 2018, defendants filed a motion for summary judgment asserting that summary judgment was proper because "(a) [p]laintiffs’ claims are barred, as a matter of law, by the applicable statutes of limitations, and/or (b) there is no genuine issue of material fact as to [p]laintiffs’ claims and [d]efendants are entitled to summary judgment as a matter of law." A second affidavit of Brown was filed with exhibits on 7 May 2018 and defendants filed plaintiffs’ depositions for the trial court's consideration.

Defendants’ motion for summary judgment was heard in Wake County District Court before the Honorable Ned W. Mangum on 10 May 2018. On 16 May 2018, the trial court entered an order granting defendants’ motion for summary judgment. Defendants then filed a notice of voluntary dismissal dismissing their counterclaims against plaintiffs without prejudice on 27 June 2018. Plaintiffs filed notice of appeal from the 16 May 2018 summary judgment order on 16 July 2018.

II. Discussion

On appeal, plaintiffs contend the trial court erred by entering summary judgment on each of their three claims: trespass, breach of contract, and nuisance.

"Our standard of review of an appeal from summary judgment is de novo ; such 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.’ " In re Will of Jones , 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal , 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) ).

"When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party. Moreover, the party moving for summary judgment bears the burden of establishing the lack of any triable issue." Dalton v. Camp , 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citations omitted). The moving party may meet that burden by showing "either that (1) an essential element of the non-movant's claim is nonexistent; (2) the non-movant is unable to produce evidence which supports an essential element of its claim; or, (3) the non-movant cannot overcome affirmative defenses raised in contravention of its claims."

Anderson v. Demolition Dynamics, Inc. , 136 N.C. App. 603, 605, 525 S.E.2d 471, 472, disc. review denied , 352 N.C. 356, 544 S.E.2d 546 (2000).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Further, when the party moving for summary judgment pleads the statute of limitations, the burden is then placed upon the [non-movant] to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action.

Pharmaresearch Corp. v. Mash , 163 N.C. App. 419, 424, 594 S.E.2d 148, 151-52 (quotation marks and citations omitted), disc. review denied , 358 N.C. 733, 601 S.E.2d 858 (2004).

1. Trespass

Plaintiffs first take issue with the trial court's grant of summary judgment on their trespass claim. Plaintiffs’ trespass claim sought $1,100.00 from defendants, jointly and severally, for damages to plaintiffs’ property resulting from Proland's alleged entry onto, and grading of plaintiffs’ property to facilitate installation of the wall without plaintiffs’ consent.

Plaintiffs contend that the evidence, viewed in the light most favorable to them, is sufficient to support a claim for trespass. However, plaintiffs acknowledge that N.C. Gen. Stat. § 1-52(3) provides a three year statute of limitations for trespass running from the original trespass, and plaintiffs admit in their brief that "Proland's initial trespass occurred no later than April 25, 2014, which is more than three (3) years prior to May 17, 2017 (the date [p]laintiffs filed the [c]omplaint commencing this action)." [Brief 11] In fact, Brown's own deposition testimony was that Proland first came onto his property without permission in August 2013. Brown further testified that Proland last came onto his property without permission in February 2014; but then contradicted himself by stating Proland returned to dump dirt at a later time that he was unable to specify.

Despite conceding the complaint was filed more than three years after the original trespass, plaintiffs argue the statute of limitations was tolled to a later date because Proland promised to repair the damage caused by the trespass, began restoration work, and continued to promise additional restoration work until 2 June 2014. Thus, because the complaint was filed within three years of 2 June 2014 on 12 May 2017, plaintiffs contend the complaint was timely. Plaintiffs, however, acknowledge that they cannot find a case to support their tolling argument. Plaintiffs instead simply assert "there is no case saying that such tolling is not appropriate; and there are cases with respect to other claims where promises to perform, and partial performance, have been held to toll the applicable statute of limitations."

We are not persuaded the tolling of the statutes of limitations for other types of claims applies to the tolling of the statute of limitations for a continuing trespass. We also could not find any case providing for the tolling of the limitations period for trespass. Instead, we are guided by the plain language of the statute, which provides a three year statute of limitations for trespass upon real property and explicitly states, "[w]hen the trespass is a continuing one, the action shall be commenced within three years from the original trespass, not thereafter." N.C. Gen. Stat. § 1-52(3) (2017).

Because plaintiffs’ trespass claim was filed more than three years after Proland's first unauthorized entry and grading of plaintiffs’ property, the trespass claim was time barred. Consequently, the trial court did not err in granting summary judgment in favor of defendants on plaintiffs’ trespass claim.

2. Breach of Contract

Plaintiffs also challenge the trial court's entry of summary judgment on count two for breach of contract. Plaintiffs presented their breach of contract claim for $1,100.00 in damages in the alternative to their trespass claim. Plaintiffs specifically alleged that "[they] permitted Proland to finish their work [on the wall] on the promise to repair [their property]; Proland breached their promise; and [p]laintiffs are entitled to recover damages for Proland's breach of contract."

Although not explicitly alleged in the complaint, plaintiffs now clearly assert that a contract was formed when they allowed Proland to continue its work on the wall from their property in exchange for Proland's promise to restore their property after completion of the wall. Plaintiffs acknowledge that the contract did not specify a date for the completion of Proland's restorative work, but rely on International Minerals & Metals Corp. v. Weinstein , 236 N.C. 558, 561, 73 S.E.2d 472, 474 (1952), for the proposition that the law requires...