Deans v. Mansfield

• Decision Date: 01 March 2011
• Docket Number: No. COA10–398.,COA10–398.
• Citation: 707 S.E.2d 658
• Parties: Thomas S. DEANS and wife Yvonne G. Deans, Plaintiffs,v.Linda Simmons MANSFIELD, Johnny DiPiazza, Peter C. Mace, Joanne F. Mace, Hayek Farms, LLC, Jonathan C. Hescock, Patricia N. Hescock, Grande Pines Homeowners' Association, Inc., James A. Jones, Elizabeth B. Jones, MNM Land, LLC, Marc Massaux, Scott F. Brewton, Sonja R. Brewton, Ronald Wall, Barbara Wall, Dirck Andrew Yow, Mary Elizabeth Yow, Grande Pines, LLC, Defendants.
• Court: North Carolina Court of Appeals

707 S.E.2d 658

Thomas S. DEANS and wife Yvonne G. Deans, Plaintiffs,
v.
Linda Simmons MANSFIELD, Johnny DiPiazza, Peter C. Mace, Joanne F. Mace, Hayek Farms, LLC, Jonathan C. Hescock, Patricia N. Hescock, Grande Pines Homeowners' Association, Inc., James A. Jones, Elizabeth B. Jones, MNM Land, LLC, Marc Massaux, Scott F. Brewton, Sonja R. Brewton, Ronald Wall, Barbara Wall, Dirck Andrew Yow, Mary Elizabeth Yow, Grande Pines, LLC, Defendants.

No. COA10–398.

Court of Appeals of North Carolina.

March 1, 2011.

[707 S.E.2d 660]

Appeal by plaintiffs from orders entered 23 September 2009, 16 December 2009, and 4 January 2010 by Judge Jayrene R. Maness in Moore County District Court. Heard in the Court of Appeals 26 October 2010.

Law Office of Marsh Smith, P.A., Southern Pines, by Marsh Smith, for plaintiff-appellants.

Nexsen Pruet, PLLC, by Brian T. Pearce, Greensboro, for defendant-appellees Linda Simmons Mansfield, Scott F. Brewton, and Sonja R. Brewton.Foyles Law Firm, PLLC, by Jody Stuart Foyles, Pinehurst, for defendant-appellees Ronald Wall and Barbara Wall.Doster, Post, Silverman & Foushee, P.A., by Jonathan Silverman, Sanford, defendant-appellees Peter C. Mace, Grande Pines, LLC, Grande Pines Homeowners' Association, Inc., James A. Jones and Elizabeth Jones.

STEELMAN, Judge.

Where evidence presented at the summary judgment hearing revealed that there was a genuine issue of material fact as to whether a prescriptive easement had been established in 1972 over the property of defendants, the trial court erred in granting summary judgment in favor of defendants.

I. Factual and Procedural Background

This action concerns a dispute regarding the use of a soil road leading from plaintiffs' property to Hoffman Road (S.R.1004) over the real property of defendants in Sandhills Township, Moore County. Plaintiffs' property was originally owned by John Frederick Brown, who died intestate on 9 August 1941. Interests in the property descended as follows: (1) 1/3 interest to his wife Alice Brown (Alice), and (2) 2/3 interest divided between his six children (1/9 each): Mary, Howard, Phillip, Sadie, Clifton, and Vardell. Alice, Howard, and Vardell thereafter resided on the property (Brown estate). As early as 1950, Howard and Vardell maintained a soil road leading to Hoffman Road, a public roadway. Foster Williams (Williams), a neighbor, harvested timber from the Brown Estate for Alice and used the soil road to remove the timber. Williams observed Howard and Vardell maintain the soil road on numerous occasions using a John Deere tractor. Howard and Vardell built terraces across the soil road to keep the water from running down the middle of the road. Howard also used a bush hog and trimmed limbs to maintain the soil road. Williams also performed maintenance on the southern fork of the soil road. In addition to the Browns and Williamses, surrounding neighbors, Arthur Thomas's family, Worth Brown's family, and, in the

[707 S.E.2d 661]

1970's, Dr. Charles Hartsell, Jr.'s family, used the soil road to access Hoffman Road.

In 1972, Vardell died in an accident at the Firefox golf course. Thereafter, Alice and Howard lived on the Brown estate. On 13 July 1989, Howard conveyed to Thomas S. Deans (Deans) and Yvonne G. Deans (collectively, plaintiffs) approximately 69.24 acres of land which was adjacent to the Brown estate. Deans was Mary's son and Howard's nephew. No structures or improvements were on the property. In 1993, Mary died and devised her interest in the Brown estate to plaintiffs.

In 1998, Peter Mace (Mace) and Robert Edwards (Edwards) purchased approximately 1,500 acres of land and developed Grande Pines Subdivision. The soil road traversed several lots in the subdivision. Because Howard traveled over portions of these lots to access Hoffman Road, Mace obtained a Deed of Release from Howard in which he acknowledged that his use of the soil road prior to 11 August 1999 had been intermittent and permissive, and released all of his rights in the soil road. Subsequently, the soil road was blocked by the installation of a gate, plowed soil, and felled trees. On 5 December 2000, Deans and Williams filed a lawsuit against Mace and Edwards asserting the existence of a prescriptive easement in the soil road across lots in the Grande Pines Subdivision.

Howard died on 2 January 2001 and devised his interest in the Brown estate to Deans. Deans subsequently acquired the remaining interests in the Brown estate from his cousins.¹ In September 2002, the 2000 lawsuit went to mediation and the parties agreed to a settlement. A document entitled Easement Requirements was signed by Deans, Williams, Mace, and Edwards and stated that a prescriptive easement was to be defined by a survey of the existing roadway. On 25 September 2002, Deans and Williams voluntarily dismissed the first lawsuit against Mace and Edwards. In October 2003, Mace executed restrictive covenants for the Grande Pines Subdivision and noted that the equestrian easements were “subject to the right[s] of third parties for ingress, regress and egress as a result of the settlement of a claim of prescriptive rights to the use of an existing soil road.” ²

On 12 December 2006, Mace's attorney sent Deans a letter requesting that he voluntarily cease traveling from his property through Grande Pines Subdivision to Hoffman Road. On 2 January 2009, plaintiffs filed a complaint against the owners of the tracts of land in Grand Pines Subdivision which the soil road crossed and alleged that they had established a prescriptive easement to use the soil road for ingress and egress. Ronald and Barbara Wall, Linda Mansfield, Scott and Sonja Brewton, Marc Massaux, MNM Land, LLC, and Hayek Farms, LLC filed answers and denied the material allegations of plaintiffs' complaint. Thereafter, the Walls, Mansfield, and the Brewtons filed motions for summary judgment. James and Elizabeth Jones, Peter and Joanne Mace, Grande Pines, LLC, and Grande Pines HOA, Inc. also filed motions for summary judgment.

On 23 September 2009, the trial court granted defendants' motions for summary judgment. On 2 October 2009, plaintiffs filed a motion to alter or amend judgment. On 30 November 2009, plaintiffs filed a motion for summary judgment against the non-defaulted defendants who had not previously moved for summary judgment. On 16 December 2009, the trial court denied plaintiffs' motion to alter or amend the 23 September 2009 order. On 4 January 2010, the trial court entered an order granting summary judgment to certain non-moving defendants, i.e. MNM Land, LLC, Marc Massaux, and Hayek Farms, LLC. In this order, the trial court noted that default had been previously entered against the following defendants: Johnny DiPiazza, Jonathan C. Hescock, Patricia N. Hescock, Dirk Andrew Yow, and Mary Elizabeth

[707 S.E.2d 662]

Yow.³

Plaintiffs appeal.

II. Prescriptive Easement

In their first argument, plaintiffs...