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Graham v. Deutsche Bank Nat'l Trust Co.

Court of Appeals of North Carolina

February 17, 2015

SHELBY J. GRAHAM, Plaintiff,
v.
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee under Pooling and Servicing Agreement dated as of November 1, 2005, Morgan Stanley Home Equity Loan Trust 2005-4 Mortgage Pass through Certificates, Series 2005-4, Defendant/Third-Party Plaintiff,
v.
BRANCH BANKING AND TRUST COMPANY, Third-Party Defendant

Originally heard in the Court of Appeals December 11, 2013

Petition for Rehearing allowed 13 August 2014.

Pendergrass Law Firm, PLLC, by James K. Pendergrass, Jr., for plaintiff-appellee and third-party defendant-appellee.

Roberson Haworth & Reese, PLLC, by Alan B. Powell and Christopher C. Finan, for defendant/third-party plaintiff-appellant.

DAVIS, Judge. Judges STEELMAN and STEPHENS concur.

OPINION

Page 615

Appeal by defendant from order entered 19 March 2013 by Judge Lindsay R. Davis, Jr. in Guilford County Superior Court, No. 12 CVS 4672.

DAVIS, Judge.

Deutsche Bank National Trust Company (" Defendant" ) appeals from the trial court's order awarding summary judgment in favor of Shelby J. Graham (" Plaintiff" ) and Branch Banking and Trust Company (" BB& T" ) on Plaintiff's trespass claim. On 1 July 2014, this Court filed an opinion reversing the trial court's order and remanding for the entry of summary judgment in favor of Defendant. On 4 August 2014, Plaintiff filed a petition for rehearing pursuant to Rule 31 of the North Carolina Rules of Appellate Procedure. We granted Plaintiff's petition for rehearing on 13 August 2014, and after careful review upon rehearing, we conclude that the trial court's order should be affirmed.

Factual Background

Plaintiff and Defendant are the owners of two adjoining parcels of land in the Mayfield Village subdivision (" Mayfield Village" ) in Guilford County, North Carolina. Plaintiff acquired Lot 1, Section 1 of Mayfield Village (" Lot 1" ) by general warranty deed on 25 July 1996.[1] Plaintiff did not have Lot 1 surveyed at the time of purchase. Defendant acquired Lot 2, Section 1 of Mayfield Village (" Lot 2" ) pursuant to a trustee's deed recorded on 28 May 2010. Similarly, Defendant did not have Lot 2 surveyed at the time it acquired the property.

In September of 2010, one of Plaintiff's neighbors approached her and expressed an interest in purchasing Lot 2 from Defendant. Plaintiff's neighbor asked her if she was aware " that there was a property line dispute between [Lot 1] and [Lot 2]." Plaintiff replied that she did not know of any such dispute.

In early 2011, another individual, Danny Frazier (" Mr. Frazier" ), approached Plaintiff, expressed an interest in acquiring Lot 2, and inquired about a property line dispute. At some point, Mr. Frazier had the property surveyed, and the survey -- which he provided to Plaintiff -- indicated that portions of the house and septic system on Lot 2 encroached on Lot 1.

Plaintiff's title insurance company then contacted Boswell Surveyors, Inc. to prepare a survey of the property (" the Boswell survey" ). The Boswell survey likewise indicated that the house and septic system on Lot 2 -- which were constructed in 1994 -- are " in fact partially located on Lot 2 ...


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