Foxx v. Davis

• Docket Number: COA22-1014
• Decision Date: 05 July 2023
• Parties: THOMAS A. FOXX and wife, VIRGINIA A. FOXX, Plaintiffs, v. WALTER GLEN DAVIS, JR., Trustee of the WALTER GLEN DAVIS, JR REVOCABLE LIVING TRUST dated the 9th day of June, 2005 and FLORENCE S DAVIS, Defendants.
• Court: North Carolina Court of Appeals

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THOMAS A. FOXX and wife, VIRGINIA A. FOXX, Plaintiffs,
v.
WALTER GLEN DAVIS, JR., Trustee of the WALTER GLEN DAVIS, JR REVOCABLE LIVING TRUST dated the 9th day of June, 2005 and FLORENCE S DAVIS, Defendants.

No. COA22-1014

Court of Appeals of North Carolina

July 5, 2023

Heard in the Court of Appeals 25 April 2023.

Appeal by Plaintiffs and cross-appeal by Defendants from orders entered 19 January 2021 by Judge R. Gregory Horne, 5 January 2022 by Judge Nathaniel J. Poovey, and 11 May 2022 and 18 May 2022 by Judge Kimberly Y. Best, and judgment entered 8 June 2022 by Judge Kimberly Y. Best in Watauga County, No. 20-CVS-396 Superior Court.

Miller & Johnson, PLLC, by Nathan A. Miller, for Plaintiffs-Appellants/Cross-Appellees.

Moffatt & Moffatt, PLLC, by Tyler R. Moffatt and Joseph T. Petrack, for Defendants-Appellees/Cross-Appellants.

COLLINS, Judge.

This appeal arises from a dispute between the parties involving paving a road running through an easement. Plaintiffs appeal from orders granting Defendants' motion for partial summary judgment on their declaratory judgment action; Defendants' motion for summary judgment on their reformation claim ("Reformation

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Order"); and Defendants' motion to amend the Reformation Order.

Plaintiffs also appeal, and Defendants cross-appeal, the trial court's judgment entered after a bench trial. Plaintiffs argue that the trial court erred by concluding that Defendants were not liable for a portion of the cost of paving the road under a theory of unjust enrichment and by concluding that Defendants were liable only in the amount of $9,900 for breach of contract. Defendants argue that the trial court erred by concluding that they were liable for breach of contract.^[1]

We hold as follows: The trial court did not err by granting Defendants' motion for partial summary judgment on their declaratory judgment action. However, the trial court erred by granting Defendants' motion for summary judgment on their reformation claim and their subsequent motion to amend the Reformation Order.

The trial court did not err in its judgment by concluding that Defendants were not liable for a portion of the cost of paving the road under a theory of unjust enrichment. Furthermore, the trial court did not err by concluding that Defendants were liable for breach of contract. However, the trial court erred by concluding that Defendants were liable for the breach in the amount of $9,900.

Accordingly, we affirm in part, reverse in part, and remand.

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I. Background

Plaintiffs Thomas Foxx and Virginia Foxx owned multiple tracts of real property in Watauga County. Plaintiffs entered into a contract with Defendants Walter Glen Davis, Jr., and Florence Davis in February 1997 for the purchase of a 10-acre tract of Plaintiffs' property (the "Davis Property").^[2] In May 1997, Plaintiffs conveyed to Defendants by general warranty deed the Davis Property and an easement across an adjoining tract of Plaintiffs' property to access the Davis Property. Concerning the easement, the deed stated, in relevant part:

There is also conveyed herewith a perpetual, non-exclusive right-of-way and easement for purposes of ingress, egress and regress 50 feet in width leading from N.C. Highway 105 to the [Davis Property]

By acceptance of this deed, Grantees . . . hereby agree to share in the maintenance and repair of the road to be constructed by Grantors from N.C. Highway 105 to the [Davis Property] .... Until such time as Grantors convey property to third parties together with an easement to use said road, Grantors shall pay 20% of the cost of maintenance and repair of said road and Grantees shall pay 80% of the cost of maintenance and repair of said road. Grantors hereby covenant and agree to obligate each additional property owner who is conveyed an easement to use said road to share equally in Grantees' 80% obligation for maintenance and repair.

A 12-foot-wide gravel road leading from NC Highway 105 to the Davis Property was constructed by Plaintiffs in 1997 and is known as Rime Frost.

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In April 2016, Plaintiffs conveyed a 55.225-acre tract of their property to the Blue Ridge Conservancy by warranty deed ("Conservancy Deed"). Thereafter, Plaintiffs and Defendants entered into a contract which essentially relieved Blue Ridge Conservancy of any obligation to contribute to maintenance or repair of Rime Frost. The contract between Plaintiffs and Defendants stated, in relevant part:

WHEREAS, the deed from FOXX to DAVIS . . . contained provisions whereby FOXX agreed to pay a portion of the cost of maintenance and repair of a road leading from U.S. Highway 105 to the property conveyed to DAVIS and to obligate additional property owners who may be conveyed an easement to use said road to share in DAVIS' obligation for maintenance and repair of the road.... ....

WHEREAS, FOXX, DAVIS and the DAVIS TRUST, each desire to (i) terminate the provisions contained in the deeds requiring road maintenance contribution . . . as those provisions may apply because of the conveyance of the . . . 55.225 acres, and (ii) to release Blue Ridge Conservancy, its successors and assigns, as owners of the 55.225 acre tract from the aforesaid responsibilities as contained in the deed .... Except for the specific release of Blue Ridge

Conservancy, its successors and assigns, as owners of the 55.225 acre tract, from the responsibilities contained in the above referenced deeds, the obligations of FOXX, DAVIS AND the DAVIS TRUST in all other respects remain unchanged. Plaintiffs obtained a proposal from Moretz Paving on 4 September 2019 to pave Rime Frost from the point where it crosses the Watauga River to the point where it splits near the parties' driveways. Moretz Paving's total estimate was $64,900 and was broken down as follows: the preparation of the stone base for paving totaled

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$19,800, and the application of the asphalt totaled $45,120. Mr. Foxx met with Mr. Davis to discuss the proposal, and Mr. Davis stated that he would discuss the proposal with Mrs. Davis. Plaintiffs did not receive any further response from Defendants regarding the proposal.

Plaintiffs sent Defendants a letter on 8 November 2019, which stated:

After talking with Glen and sending you both a copy of the paving proposal over 6 weeks ago, we have not heard from you. I also left [Mrs. Davis] a recorded message on her phone on Monday, November 4. However, we could not wait longer to hear from you if we were to get on the spring/summer schedule for 2020 and, therefore, we have submitted the signed contract for the work to be done.

Based upon your General Warranty Deed of May 7, 1997, but adjusted in your favor since we now live here on the property, we would share equally in the cost of this section of road work.

Defendants sent an email to Plaintiffs on 13 November 2019, which stated, "[we] have both reviewed the proposal and discussed it, and we do not wish to participate in the paving of the farm road." Plaintiffs had Rime Frost paved by Moretz Paving in July 2020 for a total cost of $64,900.

Plaintiffs filed suit against Defendants in August 2020, asserting claims for breach of contract, termination of easement, and unjust enrichment/quantum meruit. Defendants moved to dismiss Plaintiffs' termination of easement claim, which was granted by written order entered 19 January 2021. On 8 February 2021, Defendants filed an answer and counterclaims for declaratory judgment, accounting, and

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recoupment. Defendants' declaratory judgment action asked the trial court to decide the following:

a. Does the Easement prohibit Plaintiffs from placing any impediments within the 50-foot easement area shown on the plat recorded in Plat Book 13, Page 179, Watauga County, North Carolina Public Registry?

b. What activities are included within the scope of the terms "maintenance" and "repair" as those terms are used in the Easement?

c. Does paving Rime Frost from the point where Rime Frost crossed the Watauga River to the point where Rime Frost splits near the driveways between the Plaintiffs' and Defendants' respective properties constitute an "improvement," rather than "maintenance" or "repair" of the road, and, thus, fall outside the scope of the Easement?

d. What portion of purported funds that were paid for the work Plaintiffs allege in their Complaint was for "improvements" to Rime Frost?

e. What portion of purported funds that were paid for the work Plaintiffs allege in their Complaint was for "maintenance" and "repair" of Rime Frost as those terms are used in the Easement?

f. Was the obligation to pay for maintenance and repairs to Rime Frost contained in the Easement (i.e., 'Grantors shall pay 20% of the cost of maintenance and repair of said road and Grantees shall pay 80% of the cost of maintenance and repair of said road') modified by the Conservancy Deed?

g. Did the Conservancy Deed violate Plaintiffs' covenant to

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