Metcalf v. Black Dog Realty, LLC

• Decision Date: 03 November 2009
• Docket Number: No. COA08-1561.,COA08-1561.
• Citation: 684 S.E.2d 709
• Parties: Louise Pack METCALF, Barbara Pack Holcombe, Michael Lawrence, Barbara Pack White, and Alice White Mobidine, Plaintiffs, v. BLACK DOG REALTY, LLC and Buncombe County, North Carolina, Defendants.
• Court: North Carolina Court of Appeals

684 S.E.2d 709

Louise Pack METCALF, Barbara Pack Holcombe, Michael Lawrence, Barbara Pack White, and Alice White Mobidine, Plaintiffs, v. BLACK DOG REALTY, LLC and Buncombe County, North Carolina, Defendants.

No. COA08-1561.

Court of Appeals of North Carolina.

November 3, 2009.

Appeal by defendant Black Dog Realty, LLC from orders entered 15 September 2008 and 18 September 2008 by Judge J. Marlene Hyatt in Superior Court, Buncombe County. Heard in the Court of Appeals 19 May 2009.

Ferikes and Bleynat, PLLC, by Joseph A. Ferikes and Mary March Exum, Asheville, for plaintiff-appellees.

Johnston, Allison & Hord, P.A., by Patrick E. Kelly, Daniel A. Merlin, and Michael L. Wilson, Charlotte, for defendant-appellant.

McGuire, Wood & Bissette, PA by Joseph P. McGuire, Asheville, for defendant-appellant.

No brief filed on behalf of Buncombe County.

STROUD, Judge.

George Willis Pack conveyed real property to Buncombe County in 1901 for use as a site for a new courthouse and county offices, in exchange for the County's dedication of the old courthouse site "forever to be used for the purpose of a public square park or place...." A small portion of the real property which Pack conveyed to Buncombe County, known as the "Old County Jail Lot" is the subject of this action. This case presents the legal issue of whether there was an express or implied dedication of the property Pack conveyed to the County for irrevocable public use for the county courthouse and county offices or for a public park. Based upon Pack's offer to convey the property, the County's acceptance and the July 1901 deed, and considering the rules of construction applicable to these documents, we hold that the trial court erred in granting summary judgment to the Plaintiffs and enjoining defendant Black Dog Realty from any use of the real property inconsistent with the alleged dedication.

I. Background

On 7 January 1901, the Board of Commissioners of Buncombe County ("the Board") recorded an order in the minutes of the Board to accept ("the acceptance") the following offer ("the offer") from George W. Pack ("Pack" or "Mr. Pack"), made on 31 December 1900:

I offer to give to the County to be used for a site for a Court house and County offices the land on College Street in Asheville which I purchased of Col. A.T. Davidson [("the courthouse property")] provided that the County will dedicate to the public forever to be used for the purpose of a public square park or place whatever land [("the Pack Square property¹")] the County may own within the limits of the public square so called, in Asheville, the present Court House, to be removed there from prior to such date as you may agree upon with Judge Merrimon and Mr. Gwyn acting for me[.]

On 24 July 1901, pursuant to the Board's 7 January 1901 acceptance of the offer, Pack and his wife, Frances Pack ("Mrs. Pack"), executed a deed ("the July deed") conveying the property ("the courthouse property") to the Commissioners of Buncombe County. Although the granting, habendum, and warranty clauses of the deed all conveyed the property in fee simple to the County, the last section of the July deed stated that the courthouse property was conveyed subject to the conditions that: (1) the new court house be completed and occupied by 1 January 1903 and the old court house removed from the future Pack Square by 1 July 1903, (2) no jail shall ever be built on the courthouse property, and (3) the courthouse property would never be sold or leased. It also provided that the property would revert to Pack and his heirs if any of the conditions were ever violated. These conditions in the July deed were not stated in the 31 December 1900 offer, including the condition that the courthouse property could never be sold or leased.

On 14 December 1901, Mr. and Mrs. Pack executed a substitute deed ("the December deed") of the courthouse property to the County. The December deed stated that it was "executed in lieu of and as a substitute for the deed executed by the parties of the first part on the 24th day of July 1901[.]" The granting clause of the December deed stated that Mr. and Mrs. Pack "do give, grant, bargain, sell and convey to the said party of the second part [the Board of Commissioners of Buncombe County] and to their successors in Office forever" the courthouse property. The habendum clause of the substitute deed added:

To have and to hold the said lot or parcel of land with all the appurtenances thereunto belonging unto the said party of the second part its successors in office, forever, for the following and no other purpose, to wit: that is to say for the site of a County Court House, County Offices and such other purposes strictly incident to the usual and convenient occupation and use of said Court House and County Offices by the County Officials and the public.

After the habendum clause, the December deed provided that the parties "[waive] all conditions named in said deed of July 24th 1901; the said parties hereby waiving all conditions named in said deed ... and agreeing as above stated that said lot shall be used as a site for a Court House and County Offices as hereinbefore set forth." The December deed contained no warranty clause. The December deed was executed only by Mr. and Mrs. Pack.

In or about 1903, the County constructed a courthouse and county office building on the courthouse property, although the 1903 courthouse was torn down in approximately 1928 and the current courthouse was later constructed. Despite the exact location of either courthouse, it appears that the parties are in agreement that the Old County Jail Lot, which is a small portion of the courthouse property, has been used as a part of the "public land surrounding [the courthouse or other county offices]" continuously since 1928.

In 2006, the Board passed a resolution authorizing "the commencement of the bidding process for the sale of ... the "Old County Jail Lot[.]" The Board sold the property in accordance with N.C. Gen.Stat. § 160A-269. The Board published defendant Black Dog Realty's bid on 24 October 2006, setting a deadline of 3 November 2006 for upset bids. The Board ultimately accepted the highest bid, by defendant Black Dog Realty. On 21 November 2006, Buncombe County conveyed the Old County Jail Lot to Black Dog Realty.

On 28 September 2007, plaintiffs Louise Pack Metcalf ("Metcalf"), Barbara Pack Holcombe ("Holcombe"), and Michael Lawrence ("Lawrence") filed a complaint in Superior Court, Buncombe County for declaratory judgment, injunction, and breach of contract. The complaint alleged that

the offer of the subject property² by George Willis Pack and the acceptance of his offer by Buncombe County created perpetual rights in and to the subject property in favor of the public, including, but not limited to, dedication as an easement. Such easement was dedicated to the public for use as a park and as a site for a Court House and County Offices.

The complaint further alleged that defendant Black Dog Realty "has and intends to interfere with and [sic] the public's property rights to access and use the [courthouse property] for public purposes." As a remedy, the complaint requested the trial court to "permanently enjoin the Defendants, their agents, or anyone acting on their behalf from blocking or interfering with the public's easement and rights in and to the [courthouse property]." Further, the complaint requested a reversion of the courthouse property to the heirs and descendants of George Willis Pack and monetary damages for breach of contract. The complaint was amended on 29 November 2007 to add Barbara Pack White ("White") and Alice White Mobidine ("Mobidine") as plaintiffs.

On or about 28 December 2007, defendant Buncombe County ("the County") moved to dismiss Plaintiffs' complaint for want of standing and for failure to state a claim and raised several affirmative defenses. On 8 January 2008, defendant Black Dog Realty likewise moved to dismiss, raised numerous affirmative defenses, and brought counterclaims against Plaintiffs for slander of title and to quiet title pursuant to N.C. Gen.Stat. § 41-10 and in equity. The County filed a motion for summary judgment on 31 July 2008. Plaintiffs moved for summary judgment on 13 August 2008.

The trial court heard all of the pending motions on 25 August 2008 and entered judgment on 15 September 2008. The judgment denied Defendants' motions to dismiss, denied the County's motion for summary judgment, and granted Plaintiffs' motion for summary judgment. The judgment was based upon Plaintiffs' claim for declaratory judgment pursuant to N.C. Gen.Stat. § 1-253 et seq. and the claim for injunctive relief, but did not specifically address Plaintiffs' claim for breach of contract or for reversion of the courthouse property, including the Old County Jail Lot, to Pack's heirs or descendants or for monetary damages. The judgment also did not mention defendant Black Dog Realty's claims for slander of title or to quiet title.³ The trial court decreed "pursuant to N.C.G.S. § 1-253 et seq., that the subject property described in and attached to Plaintiffs' Amended Complaint⁴ has been and continues to be subject to the offer of dedication by George W. Pack and the acceptance ... by the Board of Commissioners of Buncombe County, North Carolina, and that said land shall only be used for purposes consistent with said dedication and acceptance."⁵ The trial court further "permanently enjoined" Defendants from using the courthouse property "in any way inconsistent with the dedication and this Judgment."

Defendant Black Dog Realty made a motion for written findings of fact and conclusions of law pursuant to N.C. Gen.Stat. § 1A-1, Rules 52(a) and 52(b) on 15 September 2008. The trial court denied the motion for written findings of fact and conclusions of law on 18 September 2008. Defendants appeal from the order granting summary judgment as to the Plaintiffs' claim for declaratory...