Pamlico Properties IV v. Seg Anstalt Co.

• Decision Date: 15 March 1988
• Docket Number: No. 872SC501,872SC501
• Citation: 365 S.E.2d 686,89 N.C.App. 323
• Parties: PAMLICO PROPERTIES IV v. SEG ANSTALT COMPANY, Lux Corporation, Agri World Farm Management, Uli Bennewitz and The Rich Company.
• Court: North Carolina Court of Appeals

Page 686

365 S.E.2d 686

89 N.C.App. 323

PAMLICO PROPERTIES IV v. SEG ANSTALT COMPANY, Lux Corporation, Agri World Farm

Management, Uli Bennewitz and The Rich Company.

No. 872SC501.

Court of Appeals of North Carolina.

March 15, 1988.

Lee E. Knott, Jr., Washington, D.C., for plaintiff-appellant.

Trimpi, Thompson & Nash by John G. Trimpi, Elizabeth City, for defendants-appellees.

PHILLIPS, Judge.

Plaintiff's action is for damages allegedly caused by the several defendants negligently permitting a fire to spread onto its land on 5 April 1981. The action was filed on 21 September 1983, but defendant The Rich Company was not joined as a party or notified of the claim until 9 January 1985 when an amended complaint was filed. Eventually the claim was dismissed by an order of summary judgment on the explicit ground that it was barred by the three-year statute of limitations. In appealing from that order plaintiff paid little heed either to our rules of appellate procedure, the terms of the laws relied upon, or the state of the record. The pertinent facts are that: Adjoining plaintiff's property was a tract of forest land owned by defendant Seg Anstalt Company that was being cleared of its trees; defendant Agri World, a North Carolina partnership, supervised the contractors doing the clearing, during the course of which trees pushed into windrows were set afire and it spread to plaintiff's property; Agri World's general partners were the defendants Uli Bennewitz and The Rich Company; while plaintiff's original complaint alleged that Agri World was a North Carolina partnership and Uli Bennewitz was a general partner, it did not refer to The Rich Company or any other partner; defendant Agri World was dissolved by agreement of the partners in the spring of 1982; on 14 November 1984 while being deposed by plaintiff Uli Bennewitz testified that he and The Rich Company were general partners in Agri World, and immediately thereafter plaintiff moved for and was granted permission to join The Rich Company as a party defendant.

Plaintiff assigned as error only "[t]he granting of the motion for summary judgment of the defendant, The Rich Company." This is a broadside assignment, since it does not state any specific basis for the alleged error as Rule 10, N.C. Rules of Appellate Procedure requires, and the only questions it raises are whether the facts found by the court support the judgment and whether any error of law appears on the face of the record. Columbus County v. Thompson, 249 N.C. 607, 611, 107 S.E.2d 302, 305-306 (1959). Though the court is not required to find facts in ruling on a motion for summary judgment, the facts found in this instance--that the cause of action against The Rich Company arose on 5 April 1981 when the fire spread to plaintiff's land and that it was not served with notice of the claim against it until 9 January 1985--clearly support the decision that the claim is barred by the three-year statute of limitations and no error of law appears on the face of the record. Thus, the order appealed from is affirmed.

Citing only that same assignment of error based only on an exception to the signing of the order plaintiff argues in the brief with no foundation at all that the order was erroneous on several specific grounds,...