Rushing v. Aldridge

• Decision Date: 02 August 2011
• Docket Number: No. COA10–1059.,COA10–1059.
• Citation: 713 S.E.2d 566
• Parties: Keith RUSHING and wife, Hazel S. Rushing, Plaintiffs,v.Clegg ALDRIDGE and wife, Eva E. Aldridge, Defendants.
• Court: North Carolina Court of Appeals

713 S.E.2d 566

Keith RUSHING and wife, Hazel S. Rushing, Plaintiffs,

v.Clegg ALDRIDGE and wife, Eva E. Aldridge, Defendants.

No. COA10–1059.

Court of Appeals of North Carolina.

Aug. 2, 2011.

OPINION TEXT STARTS HERE

Appeal by defendants from order entered 29 March 2006 by Judge Larry G. Ford, order entered 25 January 2010 by Judge Kevin M. Bridges, and order entered 21 May 2010 by Judge Vance B. Long in Davidson County Superior Court. Heard in the Court of Appeals 27 January 2011.

Kluttz, Reamer, Hayes, Randolph, Adkins, & Carter, L.L.P., Salisbury, by Glenn S. Hayes, for plaintiffs-appellees.

Biesecker, Tripp, Sink & Fritts, L.L.P., Lexington, by Joe E. Biesecker and Christopher A. Raines, for defendants-appellants.

GEER, Judge.

This appeal arises out of an action for adverse possession brought by plaintiffs Keith Rushing and Hazel S. Rushing against defendants Clegg Aldridge and Eva E. Aldridge. The Aldridges appeal from the trial court's compulsory order of reference, the order denying their motion for summary judgment and confirming the report of the referee, and the order granting partial summary judgment to the Rushings.

During the proceedings below, the trial court determined that the case involved a complicated boundary issue and that a personal view of the property might be required. The court, therefore, entered a compulsory order of reference pursuant to Rule 53(a)(2) of the Rules of Civil Procedure, requiring that the adverse possession issues be decided by a referee. The referee ultimately filed a report concluding that the Rushings had acquired a portion of the Aldridges' property by adverse possession.

We agree with the Aldridges that the trial court erred in confirming the referee's report. Because the Aldridges preserved their right to a jury trial and because the evidence before the referee indicated that the Aldridges had presented sufficient evidence to send the issue of adverse possession to a jury, the Aldridges retained the right to a jury trial. The trial court did not err, however, in denying the Aldridges' motion for summary judgment, as the Rushings also presented sufficient evidence to send their claim to a jury. Accordingly, we affirm in part and reverse and remand in part for a jury trial on the Rushings' claim for adverse possession.

Rule 53 and the Reference Procedure

At the outset, a general explanation of Rule 53 and references to referees is necessary to an understanding of this case. Rule 53(a) provides that (1) upon consent of the parties, (2) upon application of one of the parties, or (3) upon its own motion, a trial court may order that a referee determine issues of fact raised by the pleadings and evidence. Brown v. E.H. Clement Co., 217 N.C. 47, 54, 6 S.E.2d 842, 847 (1940).

Any or all of the issues in an action may be referred (except in certain actions related to the termination of a marriage) if the parties consent in writing to a reference. N.C.R. Civ. P. 53(a)(1). If the parties do not consent to a reference, the trial court, upon application of one party or on its own motion, may compel a reference in only four types of cases: (a) where the trial of an issue requires the examination of a long or complicated account; (b) where the taking of an account is necessary for the information of the court before judgment or for carrying a judgment or order into effect; (c) where the case involves a complicated question of boundary, or requires a personal view of the premises; or (d) where a question of fact arises outside the pleadings, upon motion or otherwise, at any stage of the action. N.C.R. Civ. P. 53(a)(2). As our Supreme Court has explained, references serve the “useful purpose” of “aid[ing] and simplify[ing] the work which would otherwise fall upon the court and jury, and often expedit[ing] the litigation and sav [ing] the parties from trouble and expensive trials, and ... saving in time to witnesses and attorneys.” Jones v. Beaman, 117 N.C. 259, 261, 23 S.E. 248, 249 (1895).

Rule 53 does not require that the referee conduct a hearing, examine witnesses, receive evidence, or make findings of fact unless the order of reference so directs. Godwin v. Clark, Godwin, Harris & Li, P.A., 40 N.C.App. 710, 713, 253 S.E.2d 598, 601, appeal dismissed and disc. review denied, 297 N.C. 698, 259 S.E.2d 295 (1979). However, any witness testimony during the referee proceedings “must be reduced to writing by the referee, or by someone acting under his direction and shall be filed in the cause and constitute a part of the record.” N.C.R. Civ. P. 53(f)(3).

Following a reference, the referee is required to prepare a report on the matters submitted to him and to include a decision as to those matters in his report. N.C.R. Civ. P. 53(g)(1). If the trial court has required the referee to make findings of fact and conclusions of law, the referee must include them separately in the report. Id. The referee must file the report with the clerk of court for the court in which the action is pending and, unless otherwise directed by the order of reference, must also file a transcript of the proceedings and of any evidence and original exhibits. Id.

When the reference occurs by consent of the parties, the parties waive the right to a subsequent jury trial with respect to any of the issues within the scope of the reference. N.C.R. Civ. P. 53(b)(1). When, however, the reference is compulsory, a party may preserve his right to a jury trial, notwithstanding the referee's report, by taking the following steps:

a. Objecting to the order of compulsory reference at the time it is made, and

b. By filing specific exceptions to particular findings of fact made by the referee within 30 days after the referee files his report with the clerk of the court in which the action is pending, and

c. By formulating appropriate issues based upon the exceptions taken and demanding a jury trial upon such issues. Such issues shall be tendered at the same time the exceptions to the referee's report are filed. If there is a trial by jury upon any issue referred, the trial shall be only upon the evidence taken before the referee.

N.C.R. Civ. P. 53(b)(2) (emphasis added). The objecting party will then be entitled to a jury trial on the specified issues unless the evidence presented to the referee would entitle one of the parties to a directed verdict. Dockery v. Hocutt, 357 N.C. 210, 217, 581 S.E.2d 431, 436 (2003) ( “[F]ollowing a compulsory reference, the test to determine a demand for jury trial is the same as that for a motion for directed verdict....”).

Rule 53(g)(2) does not, however, differentiate between a reference by consent and compulsory reference when setting out what actions the trial court may take following the filing of the referee's report. The rule provides that the trial court “after hearing may adopt, modify or reject the report in whole or in part, render judgment, or may remand the proceedings to the referee with instructions.” N.C.R. Civ. P. 53(g)(2). Nonetheless, our Supreme Court has clarified that

in the context of a compulsory reference the trial court cannot adopt in full a referee's report containing findings of fact requiring assessment of witnesses' credibility. The trial court must, however, evaluate the evidence to determine if, taken in the light most favorable to the party demanding jury trial, the evidence is sufficient to support that party's claim. If the evidence is insufficient as a matter of law to support the party's claim, the trial court may modify the report by striking the offending findings of fact and making its own conclusions, may adopt the report in part exclusive of those findings of fact and make its own conclusions, or may reject the report and then enter judgment.

Dockery, 357 N.C. at 219–20, 581 S.E.2d at 437–38.

Facts

Hazel S. Rushing is the record owner of Lot 40 on Lake Shore Drive in the Badin Lake Estates subdivision in Davidson County. Ms. Rushing is married to Keith Rushing. Clegg Aldridge is the record owner of Lot 39, the lot adjacent to Lot 40 to the north. Mr. Aldridge is married to Eva E. Aldridge. Both lots are lakefront properties, abutting Badin Lake to the west and facing Lake Shore Drive to the east.

After the Rushings acquired Lot 40, Mr. Rushing hired Jack Richie to survey the lot so that Mr. Rushing could know the lot's exact boundaries and decide where to position the house he planned to build. Subsequently, sometime in the mid to late 1970s, Mr. Rushing erected a split-rail fence one foot south of what he believed to be the boundary line between Lots 39 and 40, based on the Richie survey. The fence was positioned north of a pre-existing boat ramp on the lakeshore and a pre-existing roadway leading from Lake Shore Drive to the boat ramp. Over the years, the Aldridges and others used the boat ramp and the boat ramp roadway even though it was south of the fence the Rushings had built. At some point prior to 2001, the Rushings' fence rotted and disappeared.

A dispute arose between the Rushings and Aldridges sometime between 2001 and 2003 when the Aldridges undertook construction of a new, larger lake house on Lot 39. Restrictive covenants called for a 10–foot setback between the Aldridge house and the Rushing–Aldridge property line. The Aldridges hired Jones and Wall to survey the property in 2001. Jones and Wall identified the true boundary between Lots 39 and 40 and indicated that the line marked by the fence that had been installed years ago by the Rushings was in fact on the Aldridges' property. The distance between the Aldridge house and the Rushing fence line was less than 10 feet, but there is more than 10 feet between the Aldridge house and the property line identified by the Jones and Wall survey.

In 2003, the Aldridges installed their own fence along the Jones and Wall line. At some point after the Jones and Wall survey, the Rushings hired Thomas Fields to conduct another survey. The Fields survey was consistent with the Richie survey.

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