Virginia Elec. and Power Co. v. Tillett, 841SC624

• Decision Date: 06 May 1986
• Docket Number: No. 841SC624,841SC624
• Citation: 343 S.E.2d 188,80 N.C.App. 383
• Parties: VIRGINIA ELECTRIC AND POWER COMPANY v. Marshall F. TILLETT, Jr. and wife, Blythe Tillett.
• Court: North Carolina Court of Appeals

Page 188

343 S.E.2d 188

80 N.C.App. 383

VIRGINIA ELECTRIC AND POWER COMPANY v. Marshall F. TILLETT, Jr. and wife, Blythe Tillett.

No. 841SC624.

Court of Appeals of North Carolina.

May 6, 1986.

Leroy, Wells, Shaw, Hornthal and Riley by Dewey W. Wells and Robert W. Bryant, Jr., and Hornthal, Riley, Ellis & Maland by Robert W. Bryant, Jr. and L.P. Hornthal, Jr., Elizabeth City, for petitioner-appellee.

Shearin and Archbell by Roy A. Archbell, Jr., Kitty Hawk, for respondents-appellants.

EAGLES, Judge.

This case is before us on appeal of a grant of summary judgment. Summary judgment is appropriate where there is no genuine issue of material fact and the case presents only questions of law. G.S. 1A-1, R.Civ.P. 56(c). This is true even if the questions of law are complex. Thomas v. Ray, 69 N.C.App. 412, 317 S.E.2d 53 (1984). The court may grant summary judgment if the movant conclusively establishes every element of its claim or, as appears to have been attempted here, conclusively

                establishes a complete defense or legal bar to the non-movant's claim.   Ballinger v. N.C. Dept. of Revenue, 59 N.C.App. 508, 296 S.E.2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E.2d 645 (1983).  The burden rests on the movant to make a conclusive showing;  until then, the non-movant has no burden to produce evidence.  See Perry v. Aycock, 68 N.C.App. 705, 315 S.E.2d 791 (1984).  The record is viewed in the light most favorable to the non-movant.   See Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974).  Since the trial court in entering summary judgment rules only on questions of law, a summary judgment is fully reviewable on appeal.   N.C. Reins.  Facility v. N.C. Ins. Guaranty Ass'n., 67 N.C.App. 359, 313 S.E.2d 253 (1984)
                

I

Respondents first assign error to the trial court's ruling that "as a matter of law" they have no interest in the disputed property. That the trial court possessed the authority to entertain such a contention and to rule accordingly was established by the Supreme Court's opinion in this case. 316 N.C. at ---, 340 S.E.2d at 64-65. Therefore we now examine the merits of the issue, respondents having properly excepted and assigned error.

A

The trial court's ruling was that as a matter of law respondents have no interest in the disputed property; the trial court did not reach the compensation question since if respondents hold no interest and VEPCO owns the land, VEPCO need not condemn its own land. As we held in our initial opinion, the condemnation proceeding would then be moot. 73 N.C.App. at 519-20, 327 S.E.2d at 7. Therefore in this assignment the only questions involved are questions of title.

B

Respondents argue that VEPCO judicially admitted that respondents have at least some fractional interest in the disputed land, and that the trial court erred in ruling they had no interest at all. We agree.

In response to a "Request to Admit," VEPCO made the following admission: "For purposes of this action petitioner admits that [grantors' deed] to petitioner did not convey to petitioner a small fractional interest in the property described therein." This admission was conclusive against VEPCO, since it was never withdrawn or amended. G.S. 1A-1, R.Civ.P. 36(b); Laing v. Liberty Loan Co., 46 N.C.App. 67, 264 S.E.2d 381, disc. rev. denied and appeal dismissed, 300 N.C. 557, 270 S.E.2d 109 (1980). The qualifying language, "for the purposes of this action," does not detract from the conclusive effect of the admission, since it merely restates the express terms of the rule. R.Civ.P. 36(b). Moreover, VEPCO made other similar concessions that respondents owned the fractional interest, in answers to interrogatories and elsewhere, which were also admissible against it. See 2 H. Brandis, N.C. Evidence Section 177 (2d rev. ed. 1982); R. Burns, Use of Discovery Under N.C.R.Civ.P., Section 8-11 (1971). Considering this evidence in the light most favorable to respondents, the trial court clearly erred in ruling as a matter of law that respondents had no interest in the property, and its order must be reversed.

II

As to what interest, if any, respondents have beyond the admitted small fractional interest, respondents contend that they own a substantial percentage of the property, and that they have produced sufficient evidence to entitle them to go to trial. VEPCO argues that we should find no error as to the remaining title issues, direct partial summary judgment awarding respondents only their admitted small interest, and remand for a determination of respondents' damages for the condemnation of that small interest.

The trial court's finding that respondents owned no interest at all in the subject property, necessarily includes a finding III

that respondents failed as a matter of law to prove any larger interest as well. In the interests of judicial economy, we now turn to that issue.

In our consideration of this question we face a voluminous and confusing record. Respondents refer repeatedly to certain survey points designed by letter on a court map. There is a court map in the record, but the designated points do not appear on that map. Despite careful examination, we can only estimate the location of the disputed areas. Likewise, the documents constituting the respective chains of title leave much to be desired in terms of legibility and clarity. We have cautioned litigants previously of their duty to present the issues clearly in the trial court and on appeal. Estrada v. Jaques, 70 N.C.App. 627, 321 S.E.2d 240 (1984); see App.R. 28(a). We note again that the trial court has discretionary authority to exclude confusing materials which purport to supplement the affidavits supporting summary judgment. G.S. 1A-1, R.Civ.P. 56(e).

IV

Whether respondents own some interest in the property greater than the admitted fractional interest appears to involve three questions: (1) Whether respondents are barred by res judicata from asserting their claim; (2) Whether a grant from the State, the ultimate source of respondents' purported title, is unenforceable and therefore defeats their title; and (3) Whether respondents are able to locate their purported interest on the ground.

V

The res judicata question arises out of an action begun in 1973 ("the 1973 action") by respondents' predecessors in title, Marshall Tillett, Sr. et al. (referred to hereafter collectively as "Tillett, Sr."), against VEPCO's predecessors, Estelle Gray, et al. (referred to hereafter collectively as "Gray"). Tillett, Sr., claiming under the same chain of title as respondents, alleged a boundary line dispute with Gray and that Tillett, Sr. had been in open possession of the disputed areas for more than 21 years. Gray denied any boundary dispute and counterclaimed for trespass and to quiet title as to Tillett, Sr. Gray moved for a directed verdict on the grounds that Tillett, Sr. had failed to show (1) a continuous chain of title or (2) the location of his deed on the ground. By judgment of 27 February 1975, Judge Robert D. Rouse, Jr. allowed the directed verdict motion at the close of Tillett, Sr.'s evidence. Gray elected not to present evidence and took a voluntary dismissal as to the counterclaims.

A

It is undisputed that Tillett, Sr. and Gray are the respective predecessors in title for respondents and VEPCO, with the exception of that small fractional interest previously discussed. To the extent that the judgment in the 1973 action has res judicata effect as to the state of the remaining title, it is clear that the parties here are bound by it. See Weeks v. McPhail, 128 N.C. 130, 38 S.E. 472, reh'g denied, 129 N.C. 73, 39 S.E. 732 (1901); Yount v. Lowe, 24 N.C.App. 48, 209 S.E.2d 867 (1974), aff'd 288 N.C. 90, 215 S.E.2d 563 (1975).

B

The doctrine of res judicata, as applied here, means that once an issue has been litigated and resolved by judgment, it may not be relitigated by the same parties or those claiming through them. State ex rel. Lewis v. Lewis, 311 N.C. 727, 319 S.E.2d 145 (1984). The doctrine also operates to prevent litigation of issues necessarily embraced in the former action and to preclude relitigation of the same facts on different legal theories. Blanton v. Maness, 32 N.C.App. 577, 232 S.E.2d 852, disc. rev. denied, 292 N.C. 728, 235 S.E.2d 782 (1977).

C

VEPCO argues that Tillett, Sr.'s failure to prove title in the 1973 action operates as In Mayberry plaintiffs alleged that they owned certain land and that defendants were trespassing thereon. Defendants denied plaintiffs' title, alleged ownership in themselves and pleaded a prior judgment as res judicata. That prior judgment dismissed a prior action by the same plaintiffs seeking to quiet title as to the same defendants. Campbell v. Mayberry, 12 N.C.App. 469, 183 S.E.2d 867, cert. denied, 279 N.C. 726, 184 S.E.2d 883 (1971). We held that defendants had not put their title at issue in the prior action by way of a counterclaim or otherwise, and that the judgment of dismissal simply meant that plaintiffs had failed to prove title in themselves. Accordingly the prior judgment did not bar plaintiffs' present action, since a failure of one of the parties to carry the burden of proof on the issue of title does not automatically entitle the adverse party to an adjudication that title to the disputed land is in him. Mayberry v. Campbell, 16 N.C.App. at 376, 192 S.E.2d at 29, following Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). In Cutts the Supreme Court, stating this rule, recognized that "[t]here are cases involving a disputed title to land in which neither party can carry the burden of proof." Id. at 412, 180 S.E.2d at 308.

such a bar to respondents' claims of title. Relying on Mayberry v. Campbell, 16 N.C.App. 375, 192 S.E.2d 27, cert. denied, 282 N.C. 427, 192 S.E.2d 840 (1972), we disagree.

D

In the instant case, the judgment in the 1973 action merely indicates that Tillett, Sr. failed to prove title in himself. It does not represent a conclusive...