McManus v. Kluttz

• Decision Date: 03 August 2004
• Docket Number: No. COA03-608.,COA03-608.
• Court: North Carolina Court of Appeals
• Parties: Peggy E. McMANUS, Plaintiff, v. G. Lee KLUTTZ, Grayson M. Kluttz and L. Steve Kluttz, Defendants.

599 S.E.2d 438

165 NC App. 564

Peggy E. McMANUS, Plaintiff, v. G. Lee KLUTTZ, Grayson M. Kluttz and L. Steve Kluttz, Defendants.

No. COA03-608.

Court of Appeals of North Carolina.

August 3, 2004.

Ward & Smith, P.A., by Ryal W. Tayloe and Eric J. Remington, Wilmington, for plaintiff-appellee.

Clark, Newton, Evans & Craige, L.L.P., by John Richard Newton, Wilmington, for defendant-appellant.

HUNTER, Judge.

G. Lee Kluttz and Grayson M. Kluttz ("defendants")¹ appeal from a grant of partial summary judgment in favor of Peggy E. McManus ("plaintiff"). For the reasons stated herein, we affirm.

As an initial matter, we note that this Court previously filed an opinion dismissing this appeal as interlocutory due to the failure of defendants' counsel to include plaintiff's Voluntary Dismissal of her Claim for Damages in the Record on Appeal. McManus v. Kluttz, ___ N.C.App. ___, 595 S.E.2d 238 (2004) (unpublished). Without the Voluntary Dismissal, the documents in the Record on Appeal showed that other claims were still pending in the trial of this case. Accordingly, we dismissed the appeal as interlocutory because the trial court had not certified the case for appeal under Rule 54(b) of the North Carolina Rules of Civil Procedure nor had defendant argued that the order affected a substantial right. See Embler v. Embler, 143 N.C.App. 162, 164-65, 545 S.E.2d 259, 261 (2001)

. Defendants then filed a motion to withdraw the opinion and amend the record to include plaintiff's Voluntary Dismissal, thus changing the status of defendants' appeal from interlocutory to final.

Although this Court granted defendants' motion, we note that our previous opinion had to be withdrawn and that a considerable amount of time and resources were wasted as a result of defendants' counsel's error. It is the appellant's duty and responsibility to ensure the completeness and proper form of the Record on Appeal. See N.C.R.App. P. 9(a) et. seq.; State v. Alston, 307 N.C. 321, 341, 298 S.E.2d 631, 644 (1983)

. Due to defendants' counsel's error, the Court incurred unnecessary expenses and the parties experienced further delay in the resolution of their claim. Therefore, this Court elects in its discretion pursuant to Rules 34(a)(3) and 34(b)(2) of the North Carolina Rules of Appellate Procedure to sanction defendants' counsel in the amount of $500.00. See N.C.R.App. P. 34(a)(3), 34(b)(2). We now proceed to consider the merits of this appeal.

On 16 November 1979, the Clayton Fulcher Seafood Company transferred a tract of land on Harkers Island in Carteret County to a woman named Bessie Scott. The deed for the land transfer and a survey map of the property are recorded in the Carteret County Registry at Book 16, Page 95. Registered land surveyor John W. Collier ("Collier") performed the survey according to the deed's metes and bounds description, and placed metal stakes in the ground to mark the boundaries of the property. Collier also marked the locations of these stakes on the survey map. Following Bessie Scott's death, ownership of the land passed to her son, Elliot Anderson Scott ("Scott").

On 21 September 1990, plaintiff and her husband (now deceased) purchased the tract of land from Scott. The purchase is recorded in the Carteret County Registry at Book 643, Page 412. Soon thereafter, registered land surveyor W.D. Daniels ("Daniels") performed a second survey of the property. Although they were not sticking up from the ground, Daniels physically identified all but two boundary stakes from the previous survey. Notably, however, Daniels identified every stake along the western boundary of plaintiff's property. Daniels then remarked the property boundaries by setting flags and wooden "witness" stakes beside the original metal stakes. According to plaintiff, these stakes and flags remained in the ground "for the first five or so years" after the property was purchased.

On plaintiff's property there is also a small home, to which she and her husband added a second story sometime after its purchase. Just west of the home is a strip of land that is the subject of this dispute. Until plaintiff's purchase, Scott maintained and cleared the yard and the disputed strip of land. In addition, the Collier and Daniels surveys each identified the disputed strip as falling within the boundaries of plaintiff's property. As such, plaintiff and her husband believed they owned the strip and actively maintained it since 1990 by seeding, mowing the grass, planting three pampas bushes, and paying the related property taxes.

Directly next to this strip, however, is a plot of land owned by defendants since 1964. Defendants' purchase is recorded in the Carteret County Registry at Book 254, Page 204. Although there is a house trailer on the property, it is only used occasionally and the property is primarily used for storage of automobiles and other items of business. Defendants' yard is unkempt and overgrown with waist-high scrub brush, weeds, and smilax. Photographs and testimony in the record show that the overgrown nature of the property creates a visible distinction between the land maintained by plaintiff and the land maintained by defendants.

Based on the deed to their property, defendants allege they own the strip of land just west of plaintiff's home. In March 2001, registered land surveyor Sherwin D. Cribb ("Cribb") created a map of defendants' property based on the metes and bounds description in their deed. Cribb's map identifies the disputed strip as falling within the property owned by defendants. The map also shows that the eastern boundary line of defendants' land runs through a portion of plaintiff's home. Cribb states that during the course of his work, he did not find any survey markers delineating the disputed tract of land that were readily open or visible.

Around December of 2000, defendants noticed plaintiff's grass and other plantings on the disputed strip of land. Defendants' son then bulldozed the strip, tearing out the grass and pampas bushes and destroying a drainpipe running from plaintiff's home. Upon this incursion, plaintiff hired registered land surveyor Robert H. Davis ("Davis") to perform another survey of the property. Like Collier and Daniels, Davis identified the disputed strip as falling within the property owned by plaintiff. Davis also states that while performing the survey he physically located and identified every stake on the western line of plaintiff's land that was referenced in the previous survey.

Plaintiff then filed a complaint alleging, among others, that defendants' assertion of ownership was a cloud upon her title, which she acquired by seven years adverse possession under color of title. Defendants denied plaintiff had met the requirements for adverse possession and alleged superior title and fee simple ownership of the strip of land. The trial court granted partial summary judgment in favor of plaintiff, finding that she acquired fee simple ownership of the strip by virtue of seven years adverse possession under color of title.

The sole issue on appeal is whether the trial court properly granted partial summary judgment in favor of plaintiff. This Court reviews grants of summary judgment de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C.App. 807, 809, 513 S.E.2d 572, 574 (1999)

. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C. Gen.Stat. § 1A-1, Rule 56(c) (2003). A genuine issue of material fact exists if the fact alleged constitutes a legal defense or is of such a nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. Kessing v. National Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). However, a question of fact which is immaterial does not preclude summary judgment. Id.

Defendants assign as error the trial court's grant of partial summary judgment on grounds that genuine issues of material fact exist concerning plaintiff's character of possession and plaintiff's holding the property under known and visible lines and boundaries. We conclude that any questions of fact are immaterial and that summary judgment was appropriate.

Section 1-38(a) of the North Carolina General Statutes provides that one acquires title to real property after possessing it for seven years under color of title and under known and visible lines and boundaries. N.C. Gen.Stat. § 1-38(a) (2003).² In addition, such possession must be actual, open, hostile, exclusive, and continuous for the required time 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).

Defendants do not dispute plaintiff's possession under color of title.

Adverse possession under color of title is occupancy under a writing that purports to pass title to the occupant but which does not actually do so either because the person executing the writing fails to have title or capacity to transfer the title or because of the defective mode of the conveyance used.

Cobb v. Spurlin, 73 N.C.App. 560, 564, 327 S.E.2d 244, 247 (1985). In North Carolina, a deed may constitute color of title so long as it contains an adequate description of the land. Marlowe v. Clark, 112 N.C.App. 181, 186, 435 S.E.2d 354, 357 (1993). In addition, the claimant must prove that the boundaries described in the deed cover the land in dispute. McDaris v. "T" Corporation, 265 N.C. 298, 300-01, 144 S.E.2d 59, 61 (1965). Since plaintiff's deed contains a thorough metes and bounds description of the property, and because three maps and the testimony of two surveyors show the disputed land as falling within the boundaries of the deed, the requirement of color of title is...