Steel Creek Development Corp. v. Smith

• Decision Date: 15 July 1980
• Docket Number: No. 130,130
• Parties: STEEL CREEK DEVELOPMENT CORPORATION v. R. S. SMITH and wife, Evelyn L. Smith v. Earl Terry JAMES and wife, Martha S. James d/b/a Terry's Marina.
• Court: North Carolina Supreme Court

Page 205

268 S.E.2d 205

300 N.C. 631

STEEL CREEK DEVELOPMENT CORPORATION v. R. S. SMITH and wife, Evelyn L. Smith v. Earl Terry JAMES and wife, Martha S. James d/b/a Terry's Marina.

No. 130.

Supreme Court of North Carolina.

July 15, 1980.

Richard A. Cohan, Charlotte, for defendant-appellants.

Fairley, Hamrick, Monteith & Cobb by Laurence A. Cobb and F. Lane Williamson, Charlotte, for plaintiff-appellees and additional party appellees.

COPELAND, Justice.

Plaintiffs have moved this Court to dismiss the appeal due to defendants' failure to comply with Rule 28(b)(3) of the Rules of Appellate Procedure. Defense counsel has failed to comply with an elementary rule of appellate procedure requiring that he reference the exceptions and assignment(s) of error immediately following each question presented in the brief. Failure to follow the rules jeopardizes a client's case and we caution members of the bar to scrupulously follow the rules because appeals are subject to dismissal for such failures. However, this case will be decided on its merits and the motion is overruled.

Plaintiffs moved to dismiss the appeal in the Court of Appeals on the ground that it was an improper interlocutory appeal citing Whalehead Properties v. Coastland Corp., 42 N.C.App. 198, 256 S.E.2d 284 (1979). The Court of Appeals agreed and the appeal was dismissed. We reversed that court's decision in Whalehead and the case is reported at 299 N.C. 270, 261 S.E.2d 899 (1980).

An interlocutory appeal may be taken when a substantial right of the appealing party has been affected. G.S. 1-277(a). In Whalehead we held that such a right had been affected because although summary judgment was granted for the defendant on its counterclaim thus establishing plaintiffs' liability for breach of contract, it was also ordered that defendant was not entitled to specific performance and the case was set for trial on the issue of damages. Denial of defendants' appeal would have eliminated its opportunity to obtain specific performance. Therefore, a substantial right was affected and pursuant to G.S. 1-277(a) and G.S. 7A-27(b) defendant had the right to appeal.

In Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E.2d 443 (1979), we held that defendant had no right to take an interlocutory appeal from an order granting plaintiff partial summary judgment on the issue of defendants' liability and setting the case for trial on the issue of damages. No substantial right of the defendant had been affected because he could wait until after trial on the issue of damages to appeal the question of liability (and any questions arising upon the trial on the issue of damages). The most that he would suffer in waiting to take an appeal only after final judgment had been entered at the conclusion of the trial would be the trial itself on the issue of damages.

Here, a mandatory injunction has been entered ordering defendants to remove the concrete anchors placed on plaintiffs' submerged lands. Unlike the situation in Tridyn, the defendants here will suffer more than a trial on the issue of damages. They will immediately suffer the consequences of complying with the order that they remove the anchors from plaintiffs' land. This order was not delayed pending the trial on the issue of damages; therefore, a substantial right of the defendants has been affected and they have the right to appeal. However, rather than remand the case to the Court of Appeals for consideration of the merits, we treat the papers filed in this appeal as a motion to bypass the Court of Appeals and allow the motion. Thus, we now turn to the merits of the appeal.

Defendants contend that it was error to grant summary judgment in plaintiffs' favor on the question of defendants' liability for trespass.

A party is entitled to summary judgment "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 judgment as a matter of law." Rule 56(c), N.C.R.Civ.Pro.

The party moving for summary judgment has the burden of proof on the motion. Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972). In order for the plaintiffs to obtain summary judgment they must establish that defendants have trespassed on their land and that there is no genuine issue of material fact with respect to one or more of the essential elements of defendants' defense of equitable estoppel. We will deal with these two parts of the summary judgment issue separately.

Plaintiffs have the burden of proof on their cause of action for trespass. When the party bringing the cause of action moves for summary judgment, he must establish that all of the facts on all of the essential elements of his claim are in his favor and that there is no genuine issue of material fact with respect to any one of the essential elements of his claim. In other words, the party must establish his claim beyond any genuine dispute with respect to any of the material facts. An issue is genuine if it may be maintained by substantial evidence. Id. An issue is material if the facts as alleged would constitute a legal defense, would affect the result of the action or would prevent the party against whom it is resolved from prevailing in the action. Id. If the movant carries his burden of establishing prima facie that he is entitled to summary judgment then his motion should be granted unless the opposing party responds and shows either that a genuine issue of material fact exists or that he has an excuse for not so showing. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). If the movant fails to carry his burden, the opposing party does not have to respond and summary judgment is not proper regardless of whether he responds or not. 2 McIntosh, North Carolina Practice and Procedure § 1660.5 (Supp.1970).

Defendants admitted in their answers to interrogatories that the two encroachments of which plaintiffs complain do extend beyond the boundaries of the property owned by the defendants. However, defendants deny that they are trespassing on the submerged land owned by the plaintiffs. However, in James' deposition he admits that many of the anchors holding down the boathouses launched in 1971 and 1972 are beyond the boundaries of the property owned by him and his wife. Furthermore, Judge Snepp stated in an order filed on 27 March 1979 that an "interrogatory with respect to ownership of the land in question by the Additional Parties Plaintiff is moot in that the Defendants have never answered Paragraph 13 of the Plaintiffs' cause of action as set forth in the Amendment to Complaint filed August 13, 1976 and that, therefore, the allegations contained in that paragraph are deemed to be admitted."

Paragraph 13 of the Amendment to the Complaint reads as follows:

"That since the institution of this suit, the Plaintiff Steel Creek Development Corporation has conveyed the land in question to the Additional Parties Plaintiff, R.S. Smith and wife, Evelyn L. Smith, by deed duly recorded in the Office of the Register of Deeds for Mecklenburg County, and the Plaintiff corporation has been dissolved."

From all of the evidence contained in the record we hold that plaintiffs have established beyond genuine dispute that anchors connected to the boathouses built and launched by defendants in 1971 and 1972 trespass on submerged land owned by the plaintiffs. This showing does not alone entitle plaintiffs to summary judgment on the issue of liability because defendants raised the defense of equitable estoppel.

Plaintiffs have the burden of proof on their motion for summary judgment, Koontz v. City of Winston-Salem, supra, and defendants have the burden of proof on their defense. When the party without the burden of proof on the substantive claim or defense moves for summary judgment he is entitled to it if he can meet the burden of proving that any one or more the essential elements of the opposing party's claim or defense is nonexistent. Moore v. Fieldcrest Mills, Inc., supra. This is true because the party with the burden of proof on the claim or defense must have evidence on each and every one of the essential elements of his claim or defense before he can get to the jury. If his proof is lacking on any one of those essential elements then he has not made out his claim or defense.

There are several ways in which the movant may show that he is entitled to summary judgment. He may produce his own evidence, often through affidavits, of the nonexistence of one or more of the essential elements of the opposing party's claim or defense. As noted above, when the movant does not carry his burden of producing such evidence summary judgment is inappropriate whether or not the opposing party responds. When the movant does carry his burden, he is entitled to summary judgment unless the opposing party responds with evidence showing that a genuine issue of material...