Cannon v. Day

• Decision Date: 06 July 2004
• Docket Number: No. COA03-704.,COA03-704.
• Citation: 598 S.E.2d 207,165 NC App. 302
• Court: North Carolina Court of Appeals
• Parties: Robin CANNON and Clark D. Whitlow, Sr. and wife, Jo Ann C. Whitlow, Plaintiffs, v. Gilbert DAY and wife, Connie Day, Gary Wood and wife, Cheryl Wood, and Ronald James Edwards and wife, Janet Moore Edwards, Defendants.

598 S.E.2d 207

165 NC App. 302

Robin CANNON and Clark D. Whitlow, Sr. and wife, Jo Ann C. Whitlow, Plaintiffs, v. Gilbert DAY and wife, Connie Day, Gary Wood and wife, Cheryl Wood, and Ronald James Edwards and wife, Janet Moore Edwards, Defendants.

No. COA03-704.

Court of Appeals of North Carolina.

July 6, 2004.

Taylor & Taylor, by Nelson W. Taylor, III, Morehead City, for plaintiffs-appellees.

Harris Law Firm, P.L.L.C., by R. Andrew Harris, Morehead City, for Gilbert and Connie Day and Gary and Cheryl Wood, defendants-appellants.

No brief filed by Ronald James Edwards and Janet Moore Edwards.

GEER, Judge.

This appeal arises out of a dispute over whether plaintiffs acquired a prescriptive easement across defendants' lots permitting use of a private lane to access the public road from plaintiffs' lot. We hold that plaintiffs' evidence — that plaintiffs' predecessors-in-interest used the lane without permission for more than 20 years, maintained the lane, named the lane, and treated the lane as if they owned it — was sufficient to support a verdict in plaintiffs' favor. The trial court therefore properly submitted the issue to the jury, which ultimately found that a prescriptive easement existed.

Facts

In November 1965, Carlyle and Julia Garner, plaintiffs' predecessors-in-interest, were deeded a parcel of land in Carteret County ("the Garner tract") without access to a public road. Between the Garner tract and Nine Mile Road lay a tract of land ("the Cannon tract") owned by the Garners' nephew, Clayton Cannon. A lane ("the farm lane") ran along the eastern edge of the Cannon tract, connecting the Garner tract to Nine Mile Road. Carlyle Garner, Clayton Cannon, and others had used the farm lane to move farm equipment and materials. In 1966, after Carlyle Garner made improvements to the farm lane and moved a house onto the Garner tract, the Garners began using the lane as their driveway. Plaintiffs offered evidence that the Garners never asked for nor received anyone's permission to use the farm lane.

Mr. Garner maintained the farm lane from 1966 until 1977. In 1977, Clayton Cannon subdivided the Cannon tract into four lots. One of the four lots fronted Nine Mile Road. Each of the three remaining lots was flag-shaped with the "flagpole" being a 10-foot-wide strip running parallel to the farm lane and connecting each lot to Nine Mile Road. When the Cannon tract was subdivided, the farm lane was graveled and otherwise improved, although testimony was conflicting as to whether Clayton Cannon or his sons Robin and Joel Cannon paid for the improvements. To reach their homes, the Garners and the owners of the flag-shaped lots drove on the farm lane. Although the road needed little maintenance after the improvements, Mr. Garner continued to help perform periodic maintenance as needed on the farm lane until his death in 1984.

Carlyle Garner named the farm lane "Possum Lane," carved a wooden sign with that name engraved on it, and installed the sign on the public road near his mailbox. When Carteret County put in a 911 system, it renamed the farm lane "Carlyle Lane" in honor of Mr. Garner.

After Mr. Garner's death, his wife Julia Garner deeded the Garner tract to Robin Cannon in 1985, but continued to live on the property and use the farm lane until she moved into a nursing home in 1996. After Mrs. Garner moved, Robin Cannon allowed some friends to live in the Garner home; they continued to use the lane until Gilbert Day (now owner of the flag-shaped lot adjacent to the Garner tract) blockaded the lane in 1997 or 1998.

On 9 March 2000, Robin Cannon filed a complaint against the Days asserting the existence of an easement benefitting the Garner tract and seeking a permanent injunction preventing the Days from obstructing or otherwise interfering with his or his tenants' use of the farm lane. The Whitlows, who bought the Garner tract on 8 December 2000, were later added as plaintiffs, while Gary and Cheryl Wood and James and Janet Edwards, owners of the other flag-shaped lots, were later joined as defendants.

Defendants filed a motion for summary judgment on 5 September 2002 that was denied. After a jury trial at the 23 September 2002 session of Carteret County Superior Court, the jury found the existence of a prescriptive easement, and on 4 October 2002, the trial court entered judgment for plaintiffs. On 1 November 2002, defendants filed notice of appeal to this Court from the denial of their motion for summary judgment and from the final judgment.

I

As an initial matter, we address plaintiffs' motion to strike defendants' brief and dismiss the appeal. In support of their motion, plaintiffs point out several violations of the Rules of Appellate Procedure, including the following: (1) the brief's Table of Cases and Authorities contains no references to the pages on which the citations appear, in violation of N.C.R.App. P. 26(g)(2) and 28(b)(1); (2) the brief contains no statement of the grounds for appellate review, in violation of N.C.R.App. P. 28(b)(4); (3) the brief's Statement of Facts contains almost no page references to the transcript, the record, or exhibits, in violation of N.C.R.App. P. 28(b)(5); and (4) in the brief's argument section, the questions presented are not followed by specification of the pertinent assignments of error, in violation of N.C.R.App. P. 28(b)(6). In addition to those rule violations pointed out by plaintiffs, we also note that defendants' brief is printed in 11-point non-proportionally-spaced type, with more than 27 lines per page, in violation of N.C.R.App. P. 26(g)(1) and 28(j).

"The Rules of Appellate Procedure are mandatory and failure to follow the rules subjects an appeal to dismissal." Wiseman v. Wiseman, 68 N.C.App. 252, 255, 314 S.E.2d 566, 567-68 (1984). Here, although we are very concerned about the extent of the violations of the Appellate Rules, we elect to suspend the Rules pursuant to N.C.R.App. P. 2 in order to review defendants' assignments of error.

II

Defendants first assign as error the trial court's denial of their motion for summary judgment. Our Supreme Court has held, however, that denial of a motion for summary judgment based on the sufficiency of the evidence is not reviewable following a trial:

The purpose of summary judgment is to bring litigation to an early decision on the merits without the delay and expense of a trial when no material facts are at issue. After there has been a trial, this purpose cannot be served. Improper denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts, either judge or jury.

Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985) (internal citations omitted). We therefore decline to address the question whether the trial court properly denied defendants' motion for summary judgment.

Defendants also assign as error the trial court's consideration of the affidavit of Clayton Cannon submitted with plaintiffs' brief opposing defendants' motion for summary judgment. We have reviewed the affidavit and hold that the trial court could properly consider it under N.C.R. Civ. P. 56(e).

III

Defendants' primary contention on appeal is that the trial court's denial of their motion for a directed verdict was error. At the close of plaintiffs' evidence, defendants moved for a directed verdict on the ground that plaintiffs had failed to present sufficient evidence of adverse and hostile use of the disputed easement by Carlyle Garner. After the trial court denied their motion, defendants presented evidence. By offering their own evidence, defendants waived their motion for a directed verdict made at the close of plaintiffs' evidence and, in order to preserve the question of the sufficiency of the evidence for appellate review, they were required to renew this motion at the close of all the evidence. Gibbs v. Duke, 32 N.C.App. 439, 442, 232 S.E.2d 484, 486, disc. review denied, 292 N.C. 640, 235 S.E.2d 61 (1977). Defendants did not, however, renew their motion for directed verdict at the close of the evidence. Because of this failure, defendants are not entitled to argue this issue on appeal.

Even if the question of the sufficiency of the evidence had been properly preserved, our review of the record reveals that the trial court properly denied the motion for a directed verdict.¹ A motion for a directed verdict tests the sufficiency of the evidence to take the case to the jury. Horack v. Southern Real Estate Co. of Charlotte, Inc., 150 N.C.App. 305, 309, 563 S.E.2d 47, 50 (2002). A trial court should grant such a motion only when, viewing the evidence in the light most favorable to the non-moving party and giving that party the benefit of every reasonable inference arising from the evidence, the evidence is insufficient for submission to the jury. Id. If there is more than a scintilla of evidence supporting each element of the non-moving party's claim, the motion for directed verdict should be denied. Clark v. Moore, 65 N.C.App. 609, 610, 309 S.E.2d 579, 580-81 (1983). Conflicts and inconsistencies in the evidence are to be resolved in favor of the non-moving party. Davis & Davis Realty Co. v. Rodgers, 96 N.C.App. 306, 308-09, 385 S.E.2d 539, 541 (1989),disc. review denied, 326 N.C. 263, 389 S.E.2d 112 (1990). This Court applies de novo review to a trial court's denial of a motion for directed verdict. Denson v. Richmond County, 159 N.C.App. 408, 411, 583 S.E.2d 318, 320 (2003) (questions concerning the sufficiency of the evidence to withstand a Rule 50 motion for directed verdict present an issue of law).

In order to establish the existence of a prescriptive easement, the party claiming the easement must prove four elements:" '(1) that the use is adverse, hostile or under claim of right; (2) that the use has been open and notorious such that the true owner had notice of the claim; (3) that the use has...