Dockery v. Hocutt

• Decision Date: 13 June 2003
• Docket Number: No. 609A02.,609A02.
• Citation: 357 N.C. 210,581 S.E.2d 431
• Court: North Carolina Supreme Court
• Parties: Lewis D. DOCKERY and James L. Gunter v. Paul E. HOCUTT and wife, Cora J. Hocutt, and Lane Whitaker and wife, Delois C. Whitaker.

581 S.E.2d 431

357 N.C. 210

Lewis D. DOCKERY and James L. Gunter v. Paul E. HOCUTT and wife, Cora J. Hocutt, and Lane Whitaker and wife, Delois C. Whitaker.

No. 609A02.

Supreme Court of North Carolina.

June 13, 2003.

Hatch, Little & Bunn, LLP, by A. Bartlett White and Tina L. Frazier, Raleigh, for plaintiff-appellant Lewis Dockery.

Douglass & Douglass, by Thomas G. Douglass, Raleigh, for defendant-appellees.

PARKER, Justice.

Plaintiffs Lewis D. Dockery (plaintiff) and James L. Gunter instituted this civil action claiming title to certain lands by adverse possession. Plaintiff Gunter resolved his dispute with defendants and is no longer a party to this litigation. The determinative issues before this Court are whether the Court of Appeals properly affirmed the trial court's compulsory reference of the case to a referee and whether the COA properly affirmed the trial court's denial of plaintiff's request for jury trial after an adverse determination by the referee. For the reasons discussed herein, we modify and affirm the decision of the Court of Appeals.

Plaintiff owns a one-half interest in a home on Gumtree Circle, located in the Idlewood Village Subdivision in the City of Raleigh, Wake County, North Carolina. Defendants Hocutt and Whitaker own adjacent lots on Savannah Drive, located in the Kingswood Forest Subdivision in the City of Raleigh, Wake County, North Carolina. The land in dispute was originally part of a 1.43-acre tract located to the rear of and between plaintiff's parcel and defendants' parcels as shown on Exhibit A to plaintiff's complaint.¹ In 1995 the 1.43-acre tract was owned by a trust; the trustee conveyed the tract to J.J. Allen and Paulette F. Rogers in 1996. Thereafter, Allen and Rogers conveyed a.67-acre tract to defendants. This new tract was divided and combined with defendants' lots as shown on a survey recorded 14 April 1997 in the Wake County Public Registry, which is Exhibit B to plaintiff's complaint. This survey divided the .67-acre tract into two parcels, .30 acre and .37 acre, respectively, and created a new east boundary line dividing the .67-acre tract from the remainder of the 1.43-acre tract. Defendants Hocutts' deed was recorded 10 February 1998 in the Wake County Public Registry; defendants Whitakers' deed was recorded 8 February 1998 and re-recorded 12 February 1998 in the Wake County Public Registry. Plaintiff's complaint alleges the following:

6. Other than a strip of land 35 feet wide and 100 feet long which Hocutt has used as a garden, said strip being to the rear of and adjacent to the 0.28 acre tract owned by Hocutt, and other than a 35 foot wide by 127 foot long strip of land to the rear and adjacent to the property of Plaintiff Gunter which Gunter has used as a garden, Plaintiff Dockery has had exclusive, complete, actual, open, notorious, hostile and continuous undisputed possession of the 0.37 acre and 0.30 acre tracts shown on Exhibit B.

7. Plaintiff Dockery's possession of the 0.37 and 0.30 acre tracts under known and visible lines (other than the Hocutt garden and Gunter garden) has been actual, open, hostile, continuous and exclusive in excess of 20 years.

Plaintiff attached to his complaint as Exhibit C a copy of the survey recorded in April 1997 adding lines demarcating the Hocutt and Gunter garden plots. Plaintiff's ownership claim is premised upon his clearing, caring for, and using the land in question for a garden and storage for a disputed amount of time between January 1978 and March 1998. In their counterclaim defendants asserted ownership through record title to the land in question pursuant to the deeds recorded in February 1998.

Defendants moved for summary judgment. The motion was denied on 27 July 1999 on the basis that genuine issues of material fact existed. On 20 August 1999 when the case came on for trial, the trial court, upon reviewing the pleadings, entered an order of compulsory reference pursuant to N.C.G.S. § 1A-1, Rule 53. Plaintiff and defendants objected to the order of reference.

After hearing the evidence, the referee filed his report of referee in which he made findings of fact and concluded as a matter of law among other things that "[t]here was no evidence of known and visible lines and boundaries of the property existing for 20 years to identify the extent of any possession claimed"; and "[t]he plaintiff did not have actual, open, hostile, exclusive and continuous possession of the property for 20 years under known and visible lines and boundaries." The referee denied plaintiff's claim, allowed defendants' claim to quiet title, and vested title to the property in defendants as set out in their respective deeds. Plaintiff filed exceptions to the referee's findings and conclusions, submitted issues, and demanded a jury trial on all issues. Defendants moved that the trial court adopt and render judgment on the referee's report.

The trial court entered an order confirming the referee's findings and conclusions on 30 August 2001. In that order the trial court recited that the court had reviewed the evidence presented to the referee and the exceptions taken by plaintiff. The trial court stated that "[t]he Court, considering the evidence in the light most favorable to the Plaintiff[], could find no material facts that would support a claim for adverse possession of the subject property. The evidence presented is insufficient to raise controverted issues of fact that could support Plaintiff[`s] claims." The trial court further concluded that plaintiff failed to offer any evidence from which a jury could find: "(1) the existence for 20 years of known and visible lines and boundaries of the disputed property to identify the extent of any possession claimed; and (2) that Plaintiff[`s] possession was actual, open, hostile, exclusive and continuous for 20 years under known and visible lines and boundaries." The trial court denied plaintiff's motion for jury trial, allowed defendants' motion for entry of judgment consistent with the referee's report, adopted the referee's findings and conclusions, and vested title to the property in defendants pursuant to their respective deeds.

On appeal to the Court of Appeals, plaintiff contended that the trial court erred in ordering a compulsory reference, that the trial court erred in adopting the findings and conclusions of the referee, and that the trial court erred in denying plaintiff's demand for jury trial in that genuine issues of fact existed which were properly for resolution by a jury. The Court of Appeals held that any error by the trial court in referring the matter to a referee was "cured by Judge Stephens' Order of Confirmation which indicates that he independently evaluated the evidence presented by both sides and determined that as a matter of law, plaintiff had failed to establish a claim of title by adverse possession." Dockery v. Hocutt, 153 N.C.App. 744, 745-46, 571 S.E.2d 81, 82 (2002). The Court of Appeals stated that "the trial court, by independently reviewing the evidence, determined that there were no issues of fact and effectively entered summary judgment on the issue of adverse possession." Id. at 746, 571 S.E.2d at 82. The majority analyzed the trial court's action in terms of a motion pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) where matters outside the pleadings are considered and the motion is converted to a motion for summary judgment under N.C.G.S. § 1A-1, Rule 56. Id. at 746-47, 571 S.E.2d at 83. Based on its review of the record on appeal, the Court of Appeals further upheld the trial court's order that "`plaintiff[] has failed to offer any evidence from which a jury could find (1) the existence for 20 years of known and visible lines and boundaries of the disputed property to identify the extent of any possession claimed; and (2) that Plaintiffs[`s] possession was actual, open, hostile, exclusive and continuous for 20 years under known and visible lines and boundaries.'" Id. at 747, 571 S.E.2d at 83.

The dissenting judge in the Court of Appeals was of the opinion that the pleadings did not require resolution of a complicated boundary dispute or a personal view of the premises and that, hence, a compulsory reference was not permitted by N.C.G.S. § 1A-1, Rule 53(a)(2)(c). Id. at 748, 571 S.E.2d at 84 (Greene, J., dissenting). The dissenting judge also disagreed that the trial court effectively entered summary judgment for defendants, noting that on summary judgment defendant would have had the burden to show that plaintiff was unable to present substantial evidence; whereas, in the present case the trial court placed the burden on plaintiff to produce evidence. Id. at 749, 571 S.E.2d at 84 (Greene, J., dissenting). The dissenting judge also reasoned that even assuming the trial court's order was tantamount to summary judgment, the order did not cure the prejudicial error resulting from the improper reference for the reason that on a motion pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6), the trial court could not have considered the transcript of the evidence before the referee and would have had only the pleadings upon which to base its decision. Since the complaint sufficiently alleged a claim for adverse possession, plaintiff would have been entitled to a jury trial. Id. (Greene, J., dissenting). Finally, the dissenting judge opined that the evidence raised genuine issues of material fact with respect to each of the elements of adverse possession. Id. at 749-50, 571 S.E.2d at 84 (Greene, J., dissenting).

On appeal to this Court, plaintiff first argues that the trial court erred by ordering a compulsory reference. We disagree. Rule 53(a)(2) of the North Carolina Rules of Civil Procedure provides that where the parties do not consent to a reference, a trial court may order a reference on its own motion "[w]here the case involves a complicated question of boundary, or requires a personal view of the premises." N.C.G.S. § 1A-1, Rule 53(a)(2)(c) (200...