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Duke Energy Carolinas, LLC v. Bruton Cable Service, Inc.

Court of Appeals of North Carolina

April 15, 2014

BRUTON CABLE SERVICE, INC., Defendant/Third-Party Plaintiff

Heard in the Court of Appeals November 6, 2013.

Counsel Amended April 21, 2014.

Randolph County. No. 11 CVS 1771. Lucy N. Inman, Judge.

Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker, for third-party plaintiff-appellant Bruton Cable Service, Inc.

Pharr Law, PLLC, by Steve M. Pharr, for third-party defendant-appellees Davis-Martin-Powell and Associates, Inc. and Jon Eric Davis.

For Bruton Cable Service, Inc., 3rd Party-Appellant: Mr. Christopher Alan Raines, Attorney at Law, BIESECKER, TRIPP, SINK & FRITTS, LLP, Lexington, NC.

CALABRIA, Judge. Judges Robert C. HUNTER and Robert N. HUNTER, JR. concur.


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Appeal by defendant/third-party plaintiff from order entered 11 October 2012 by Judge Lucy N. Inman in Randolph County Superior Court. Heard in the Court of Appeals 6 November 2013.

Defendant/third-party plaintiff Bruton Cable Service, Inc. (" Bruton" ) appeals from an order granting summary judgment in favor of third-party defendants Davis-Martin-Powell and Associates, Inc. (" DMP" ) and Jon Eric Davis (" Davis" ) (collectively " defendants" ). Bruton voluntarily dismissed its claims against third-party defendants Robert Wayne Taylor and Lois K. Taylor (" the Taylors" ) on 29 April 2013. Duke Energy Carolinas, LLC (" Duke" ) voluntarily dismissed its claims against Bruton on 2 May 2013. Neither the Taylors nor Duke are parties to the instant appeal. We reverse.

I. Background

In April 2005, Bruton, a North Carolina corporation, purchased Lots 7 and 59 (" the property" ) from the Taylors. The property was located in the Randolph Hills Subdivision, Phase II (" the subdivision" ), in Randolph County, North Carolina. Prior to Bruton's ownership of the property, DMP, a North Carolina corporation engaged in the business of surveying, engineering, and land planning, prepared the plat. Davis, a DMP employee and registered surveyor, certified the plat that was recorded on 8 July 2003 at Plat Book 84, Page 95 at the Randolph County Register of Deeds. The final recorded plat showed Duke's right-of-way easement (the " Duke easement" or " Duke's easement" ) pursuant to an agreement dated 20 May 1970.

According to Davis' plat, Duke's easement extended 150 feet over and across Lots 7 and 59 of the subdivision. Relying on the information in the recorded final subdivision plat (" the plat" ) depicting a 150-foot Duke easement, Bruton planned the location of single-family homes and a septic tank repair and drain field on the property. Bruton began construction in 2006.

On 31 October 2006, Duke representative Ervin Summers (" Summers" ) visited the property to determine whether the construction was within Duke's easement. Summers then sent Bruton a letter dated 8 February 2007 stating Duke's objection to all encroachments that existed within Duke's deeded and recorded 200-foot easement for the property. Summers requested the removal of the encroachments on Duke's easement. At the time Bruton received Duke's letter, the house on Lot 59 was almost complete and the house on Lot 7 was approximately 60% complete. Bruton also sent DMP several letters

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regarding the encroachment due to the inaccurate survey.

On 7 July 2011, since the parties were unsuccessful in negotiations regarding the disputed easement, Duke filed a complaint against Bruton alleging that a portion of Bruton's house that was under construction encroached upon Duke's easement, and sought, inter alia, an order to remove the encroachment from the 200-foot wide electrical transmission line easement. Duke also sought a permanent injunction against Bruton, prohibiting it from further interfering with Duke's ability to protect the safety of the public, provide reliable electrical service to the public, and properly and safely maintain its transmission lines.

On 22 December 2011, Bruton filed an answer and a third-party complaint against DMP and Davis. In its answer, Bruton denied liability and acknowledged that any alleged liability was the result of Bruton's reasonable and justifiable reliance upon defendants' actions, ...

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