Jernigan v. Herring, COA05-1233.

• Citation: 633 S.E.2d 874
• Decision Date: 05 September 2006
• Docket Number: No. COA05-1233.,COA05-1233.
• Court: Court of Appeal of North Carolina (US)
• Parties: Jerry O. JERNIGAN, et al., Plaintiffs, v. Loyde Earl HERRING, et al., Defendants.

633 S.E.2d 874

Jerry O. JERNIGAN, et al., Plaintiffs, v. Loyde Earl HERRING, et al., Defendants.

No. COA05-1233.

Court of Appeals of North Carolina.

September 5, 2006.

Appeal by plaintiffs from judgment entered 17 March 2005 by Judge Russell J. Lanier, III in Sampson County Superior Court. Heard in the Court of Appeals 9 May 2006.

McLeod & Harrop, by Donald E. Harrop, Jr., Dunn, for plaintiffs-appellants.

James D. Johnson, Jr., Benson; and Woodruff, Reece & Fortner, by Gordon C. Woodruff and Michael J. Reece, Smithfield, for defendants-appellees.

GEER, Judge.

Plaintiffs Jerry G. Jernigan, George J. Jernigan, Jr., and Learry L. Warren appeal from a jury verdict and resulting judgment concluding that defendants Laurastine Lee Rayfield, James E. Rayfield, Sr., Wilma Lee Albrecht, Robert Lee Albrecht, Loyde Earl Herring, Sylvia K. Herring, Loyde Ray Herring, Javier E. Pacheco, Michelle N. Pacheco, American General Finance, Inc., Wade Allen Lewis, Cecil Lee Williford, Robert Eugerald Williford, and Sue Jernigan-Smith acquired title to certain real estate by adverse possession. On appeal, plaintiffs argue that defendants failed to offer evidence of each of the elements of adverse possession, and the trial court, therefore, erred in denying plaintiffs' motions for both a directed verdict and judgment notwithstanding the verdict. Because plaintiffs argued at trial only that defendants failed to present sufficient evidence of their exclusive possession of the property, our review is limited solely to that issue. Based upon our review of the record, we hold defendants presented sufficient evidence of exclusive use and, accordingly, the trial court properly denied plaintiffs' motions.

Facts

In the early 1900s, Moses Lee and his wife, Lucy, owned a large parcel of land consisting of over 180 acres in Sampson County (the "Large Lot"). In 1912, the Lees deeded a two acre triangular tract out of the Large Lot to Bud Jernigan and his heirs for use as a private cemetery (the "Cemetery Lot"). The following two deed transfers of the Large Lot, occurring in 1916 and 1925, specifically excepted the Cemetery Lot from the property conveyed. Subsequent deed transfers, however, merely referenced the 1925 deed without mentioning the Cemetery Lot.

The Cemetery Lot currently contains about eight gravestones. 1946 was the last year that anyone was buried in the Cemetery Lot; that person's remains and headstone were, however, later moved to another cemetery. Of the gravestones still in the Cemetery Lot, the most recent burial occurred in 1907.

In 1954, defendants Laurastine Lee Rayfield and Wilma Lee Albrecht acquired the Large Lot by a deed that, again, made no mention of the Cemetery Lot and instead only referred back to the 1925 transfer. Rayfield and Albrecht managed the property as a farm continuously from 1954 until 1995.

In 1995, Rayfield and Albrecht hired an auctioneer and a surveyor, and the entire property — including both the Large Lot and the Cemetery Lot — was split into smaller tracts to be sold. One of the tracts, Lot 29, included all of the actual gravestones and, like the original Cemetery Lot, was two acres in size. In an effort, however, to increase the road frontage provided to other lots, the boundaries of Lot 29 were different from those of the original Cemetery Lot. As a result, Lots 19, 25, and 30 all contained portions of the original Cemetery Lot. Lot 29 was later conveyed to Sue Jernigan-Smith to be held in trust for use as the Jernigan family burial ground. Lot 19 was conveyed to defendants Javier E. Pacheco and Michelle N. Pacheco; Lot 25 to defendants Loyde Earl Herring, Sylvia K. Herring, and Loyde Ray Herring; and Lot 30 to defendants Cecil Lee Williford and Robert Eugerald Williford.

On 11 December 2002, plaintiffs filed a complaint in Sampson County Superior Court alleging that they were the direct descendants of Bud Jernigan and seeking a declaratory judgment that they had superior title in the Cemetery Lot to that of any of the defendants. In answer, defendants alleged that they had obtained superior title of those portions of the Cemetery Lot not including the actual burial plots through adverse possession. Defendants had farmed the lot with the exception of a 25- to 30-foot area around the gravestones. The case proceeded to trial and, on 23 February 2005, the jury rendered a verdict concluding that defendants had in fact obtained title to Lots 19, 25, and 30 by adverse possession. The trial court entered judgment accordingly, and plaintiffs timely appealed to this Court.

Discussion

Plaintiffs first argue that the trial court erred by denying their motions for a directed verdict and judgment notwithstanding the verdict. When considering a motion for a directed verdict, a trial court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable inference arising from the evidence. Clark v. Moore, 65 N.C.App. 609, 610, 309 S.E.2d 579, 580 (1983). Any conflicts and inconsistencies in the evidence must 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). If there is more than a scintilla of evidence supporting each element of the non-moving party's claim, the motion for a directed verdict should be denied. Clark, 65 N.C.App. at 610, 309 S.E.2d at 580-81. The same standard applies to motions for judgment notwithstanding the verdict. Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986).

At trial, a party is required to state the specific grounds for the motion for a directed verdict, N.C.R. Civ. P. 50(a), and this Court's review on appeal of the denial of that motion is "limited to those grounds asserted by the moving party before the trial court." Jones v. GMRI, Inc., 144 N.C.App. 558, 564, 551 S.E.2d 867, 872 (2001), cert. improvidently allowed, 355 N.C. 275, 559 S.E.2d 787 (2002). "Moreover, a `motion for judgment notwithstanding the verdict is technically only a renewal of the motion for a directed verdict made at the close of all the evidence, and thus [a] movant cannot assert grounds not included in the motion for directed verdict.'" Id. (alteration in original) (quoting Lee v. Capitol Tire Co., 40 N.C.App. 150, 156, 252 S.E.2d 252, 256-57, disc. review denied, 297 N.C. 454, 256 S.E.2d 807 (1979)).

With respect to the elements of a claim of adverse possession, "`[o]ne may assert title to land embraced within the bounds of another's deed by showing adverse possession of the portion claimed for twenty years under known and visible lines and boundaries (G.S.1-40), but his claim is limited to the area actually possessed, and the burden is upon the claimant to establish his title to the land in that manner.'" Dockery v. Hocutt, 357 N.C. 210, 217-18, 581 S.E.2d 431, 436 (2003) (quoting Wallin v. Rice, 232 N.C. 371, 373, 61 S.E.2d 82, 83 (1950)). See also N.C. Gen. Stat. § 1-40 (2005) (defining statutory time frame for adverse possession). Further, the "possession must be `open, notorious, and adverse.'" Dockery, 357 N.C. at 218, 581 S.E.2d at 437 (quoting Wilson County Bd. of Educ. v. Lamm, 276 N.C. 487, 490, 173 S.E.2d 281, 283 (1970)). "Successive adverse users in privity with prior adverse users can tack successive adverse possessions of land so as to aggregate the prescriptive period. . . ." Merrick v. Peterson, 143 N.C.App. 656, 663, 548 S.E.2d 171, 176, disc. review denied, 354 N.C. 364, 556 S.E.2d 572 (2001).

On appeal, plaintiffs assert that defendants failed to present sufficient evidence of the following elements of adverse possession: (1) that defendants' possession was under known and visible lines; (2) that defendants' possession was open and notorious; and (3) that defendants' possession was adverse and exclusive. The transcript, however, reveals that, at trial, plaintiffs argued only the insufficiency of the evidence as to the exclusivity element. Consequently, the only issue preserved for review in this Court with respect to adverse possession is whether defendants presented at least a scintilla of evidence that they had "exclusive possession of the...