Merrick v. Peterson
| Decision Date | 05 June 2001 |
| Docket Number | No. COA00-247.,COA00-247. |
| Court | North Carolina Court of Appeals |
| Parties | Rose Mary MERRICK, a minor, Plaintiff, v. Glenn R. PETERSON, Bernice Croom, Elsie Jane Peterson, Linwood Peterson, Ismae P. Brinson, Lois P. Saunders, Mary Burns Lennon, et als, Defendants, v. Carneal Hooper, Floyd Henry Hooper, William Fitzgerald Hooper, Lilly Gail Hooper Newkirk and James Almo Williams, Guardian Ad Litem for the unnamed, unknown, Incompetent and minor heirs of John H. Hooper and Joshua Hooper, Sr. |
Nunalee & Nunalee, L.L.P., by Mary Margaret McEachern Nunalee; and Jacqueline Morris-Goodson, Wilmington, for plaintiff-appellant.
Frink, Foy and Yount, P.A., by Henry G. Foy, Southport, for defendants-appellees. CAMPBELL, Judge.
Plaintiff appeals, arguing that the trial court erred in granting defendants' motion for directed verdict at the close of plaintiff's evidence. We disagree and affirm the trial court's judgment.
Plaintiff, a minor, by and through her duly appointed guardian ad litem, filed an action on 19 May 1997 to quiet title to a parcel of land located in Brunswick County. In her complaint, plaintiff asserted ownership of the disputed property based on adverse possession under color of title for more than seven years, and adverse possession for more than forty years (twenty years of adverse possession being sufficient under N.C. Gen.Stat. § 1-40). Plaintiff also alleged that she was not bound by the judgment entered in a prior action (89 CVS 232) involving a large number of plaintiff's blood relatives, and involving what defendants claim to be the same piece of property. Plaintiff claims she was a real party in interest in 89 CVS 232 and that she was not properly joined as a party defendant in that action.
In their answer, defendants raised numerous defenses, including the affirmative defenses of res judicata, failure to join necessary parties, and lack of standing. Defendants alleged plaintiff was barred from pursuing this action based on the existence of a final judgment in 89 CVS 232. Defendants also asserted ownership of the disputed property based on adverse possession for more than twenty years, and adverse possession under color of title for more than seven years.
Plaintiff subsequently moved to amend her complaint to join necessary parties. This motion was allowed by the trial court, and an amended complaint was filed.
Plaintiff then filed a motion to strike certain of defendants' defenses, including res judicata, arguing that plaintiff was not bound by the judgment in 89 CVS 232, because she was an unrepresented minor at the time, and was not in privity with any of the parties named or represented in 89 CVS 232. Plaintiff also argued that res judicata was inapplicable because the present action involved a different set of issues than those adjudicated in 89 CVS 232. Plaintiff's motion to strike defendants' res judicata defense was denied.
Defendants then filed a motion for summary judgment on 27 February 1998, which was subsequently denied by the trial court. In its order, the trial court again ordered the joinder of additional necessary parties to the action.
On 16 September 1998, the trial court entered an order granting plaintiff's motion to add parties defendant and ordering plaintiff to file an amended complaint naming certain parties as third-party defendants. This order also discharged plaintiff's guardian ad litem because plaintiff had reached the age of majority, and denied a motion to dismiss filed by defendants. On 25 November 1998, James Almo Williams was appointed guardian ad litem for the unnamed, unknown, incompetent and minor heirs of John H. Hooper and Joshua Hooper, Sr., direct ancestors of members of the Hooper family through whom plaintiff traces her claim to the subject property.
On 1 February 1999, plaintiff filed a motion for partial summary judgment as to defendants' counterclaim of adverse possession under color of title. The record reflects no ruling on this motion.
Plaintiff's evidence at trial was as follows: G. Douglas Jeffries, a Registered Land Surveyor, testified that he surveyed a tract of land at the request of Sherman Davis and Herbert Willis, members of the Hooper family and cousins of the plaintiff, based on the property description contained in a 1953 Deed recorded in the Brunswick County Register of Deeds in Book 113, Page 560 (the Hooper Deed). This deed conveyed property from Alfred and Josephine Hooper (plaintiff's great-grandparents) and Lillie Davis (plaintiff's great-great aunt) to Josh Hooper and Davis Hooper (plaintiff's great-great uncles). Based on its legal description, as well as maps and deeds of adjoining property, the surveyor was able to place the property in the 1953 Deed on the ground. The surveyor also testified that the deed on which defendants based their claim of record title to the property in the prior action (89 CVS 232), a 1944 conveyance from F.L. Formyduval and wife Thelma C. Formyduval and C.H. Zibelin and wife Suzie Tharp Zibelin to H.O. Peterson (the Peterson Deed), does not describe the same piece of property as that described in the Hooper Deed. Instead, the surveyor testified that the Peterson Deed describes only a portion of the property described in the Hooper Deed. The surveyor also testified that the property described in the Peterson Deed could not be placed on the ground.
Herbert L. Willis testified that he was the grandson of Alexander Hooper, Jr. (plaintiff's cousin), and that the Hooper family had lived on, farmed, hunted, and harvested timber from the subject property for as long as he could remember. He also testified that the Hooper family had erected gates around the property to block entrance upon it, and had chased people from the property when they were on it without the family's permission.
William Cartwright Clemmons, Sr. testified that he had married into the Hooper family, was president of the Hooper Hill Hunting Club located on the disputed property, and that the Hunting Club had never sought permission to use the property from anyone other than a member of the Hooper family.
Other members of the Hooper family, all of whom are related to plaintiff in some fashion, testified to the family's possession of, and activities on, the property through the years. However, there was no testimony that plaintiff herself had ever actually been in possession of the property, or performed any acts (fencing the property, removing trespassers, timbering, etc.) indicating possession of the property. In fact, Herbert Willis, compiler of the Hooper family history, testified that he had never seen the plaintiff hunting on the property, cutting timber on the property, running trespassers off the property, or in any other way exercising dominion over the property. Likewise, there was no evidence that plaintiff's mother, or any of plaintiff's direct ancestors, had possessed the subject property since the property was conveyed by plaintiff's great-grandparents in the 1953 Deed.
At the close of plaintiff's evidence, defendants moved for a directed verdict on the following grounds: (1) res judicata, (2) failure of plaintiff to meet her burden of proving title to the disputed property; and (3) failure of plaintiff to place the property described in the 1953 Hooper Deed on the ground. The trial court granted defendants' motion, and plaintiff appeals to this Court.
I.
As a threshold matter, defendants claim plaintiff's appeal is untimely under N.C. R.App. P. 3 (Rule 3). "The provisions of Rule 3 are jurisdictional, and failure to follow the requirements thereof requires dismissal of an appeal." Abels v. Renfro Corp., 126 N.C.App. 800, 802, 486 S.E.2d 735, 737, disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997). In Abels, this Court stated:
Reading N.C.R.App. P. 3(a) and (c) in pari materia and in conjunction with the decisions of our courts interpreting these rules, we believe rendering of an order commences the time when notice of appeal may be taken by filing and serving written notice, while entry of an order initiates the thirty-day time limitation within which notice of appeal must be filed and served.
Id. at 803-04, 486 S.E.2d at 738 (internal citations omitted). We believe the reasoning of Abels applies equally in the case of a judgment.
In the instant case, the trial court rendered and signed the judgment on 2 August 1999, at which time plaintiff gave oral notice of appeal, which is no longer sufficient to perfect an appeal under our Rules of Appellate Procedure. See Currin-Dillehay Bldg. Supply v. Frazier, 100 N.C.App. 188, 394 S.E.2d 683,
appeal dismissed and disc. review denied, 327 N.C. 633, 399 S.E.2d 326 (1990). The judgment was filed with the clerk of court on 3 August 1999 at 1:42 p.m. Plaintiff filed written notice of appeal on 3 August 1999 at 10:45 a.m. Defendants argue that notice of appeal was not timely because it was filed prior to entry of judgment. However, Abels makes it clear that plaintiff was entitled to file and serve written notice of appeal any time after the judgment was rendered in open court. Plaintiff's appeal thus is properly before us, and we therefore proceed to consider the merits thereof.
II.
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