in the Court of Appeals 5 October 2017.
by plaintiff TOG Properties, LLC from order entered 14
February 2017 by Judge Phyllis M. Gorham in Pender County
Superior Court No. 14-CVS-124, 15-CVS-348.
Sullivan, pro se, plaintiff-appellant.
Law Offices of Oliver & Cheek, PLLC, by Ciara L. Rogers,
for plaintiff-appellee TOG Properties, LLC.
Sullivan ("Sullivan") appeals a February 14, 2017
order granting summary judgment to TOG Properties, LLC
("TOG Properties") on its cross-claim for
declaratory judgment. This dispute arose over which party,
Sullivan or TOG Properties, owned certain timbered property
at the time it was damaged by a fire allegedly set by Karen
Pugh ("Pugh") on April 14, 2012. Whichever party
owned the property at the time of the fire would hold any
legal claims against Pugh resulting from the damages to the
property as a result of the fire. Sullivan appeals, arguing
that the trial court erred in granting TOG Properties'
summary judgment motion because this ruling denied him his
right to a jury trial and because there was a genuine issue
of material fact which should have precluded the trial court
from granting the motion. We disagree.
and Procedural Background
1, 2006, TOG Properties purchased approximately 1500 acres of
timbered real property in Pender County, North Carolina from
B&N Properties of Pender, LLC ("B&N").
B&N financed the sale to TOG Properties, secured by a
deed of trust. At the time of the sale, Kenner Day
("Day") was a manager of TOG Properties as well as
the designated registered agent of TOG Properties in North
Carolina. On May 9, 2010, Day was terminated as TOG
Properties' president and was removed from the company.
On July 16, 2010, TOG Properties filed for bankruptcy, and
B&N subsequently filed a proof of claim as senior
creditor with a claim to the real property and assigned its
interest to Sullivan, its sole shareholder and manager.
April 14, 2012, Pugh set a fire near her home on property
adjacent to the property at issue in this appeal damaging
approximately 500 acres of timber. At the time of the fire,
TOG Properties still maintained ownership of the property.
Sullivan subsequently foreclosed on the property, and on
October 20, 2012, Sullivan purchased the property in a
foreclosure sale at the Pender County Courthouse. In the
following months, Day, the former president and manager of
TOG Properties, sent letters and executed documents
purporting to transfer TOG Properties' legal and
equitable interests in any proceeds or claims related to the
fire to Sullivan.
filed an amended complaint against Robert Wayne and Karen
Pugh on February 3, 2015 alleging negligence and negligence
per se seeking damages for the burning of the timber
on the property now owned by Sullivan. On April 10, 2015, TOG
Properties also filed a complaint against Pugh seeking to
recover damages resulting from the fire. TOG Properties
additionally filed a cross-claim against Sullivan seeking a
declaratory judgment that it was the owner of the property at
the time of the fire and was, therefore, the sole owner of
any claims against Pugh.
November 16, 2016, TOG Properties filed a motion for summary
judgment on its cross-claim for declaratory judgment. The
trial court granted summary judgment in TOG Properties'
favor on February 14, 2017, and it is from this order that
Sullivan timely appeals.
argues first that his constitutional right to a trial by jury
was denied when the trial court granted TOG Properties'
motion for summary judgment pursuant to Rule 56 of the North
Carolina Rules of Civil Procedure. He asserts that, although
Rule 56 is "a commendable attempt by the judiciary to
extend its power in order to reduce its docket and render the
courts more efficient, " it is nevertheless
"blatantly unconstitutional, " treasonous, and
should not be tolerated. In support of his argument, Sullivan
cites our North Carolina Constitution, Article I, Section 25,
which states that "[i]n all controversies at law
respecting property, the ancient mode of trial by jury is one
of the best securities of the rights of the people, and shall
remain sacred and inviolable." N.C. Const. art. I,
true that "[t]he right to a jury trial is a substantial
right of great significance." Mathias v.
Brumsey, 27 N.C.App. 558, 560, 219 S.E.2d 646, 647
(1975), disc. review denied, 289 N.C. 140, 220
S.E.2d 798 (1976). However, "[t]he constitutional right
to trial by jury, N.C. Const. Art. I, § 25, is not
absolute; rather, it is premised upon a preliminary
determination by the trial judge that there indeed exist
genuine issues of fact and credibility which require
submission to the jury." Bank v. Burnette, 297
N.C. 524, 537, 256 S.E.2d 388, 396 (1979). As both the United
States Supreme Court stated in Ex parte Wall and
this Court adopted in In re Bonding Co., "
'it is a mistaken idea that due process of law requires a
plenary suit and a trial by jury in all cases where
property or personal rights are involved.' "
Inre Bonding Co., ...