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Brown v. Lattimore Living Trust

Court of Appeals of North Carolina

April 2, 2019

DENNIS T. BROWN and RAQUEL HERNANDEZ, Plaintiffs,
v.
LATTIMORE LIVING TRUST dated August 3, 2011, by and through its Trustees, WILLIAM TIMOTHY LATTIMORE and PAX MILLER LATTIMORE; and PROLAND DEVELOPMENT, INC., Defendants.

          Heard in the Court of Appeals 13 March 2019.

          Appeal by plaintiffs from order entered 16 May 2018 by Judge Ned W. Mangum in Wake County District Court No. 17 CVD 6088.

          Harris & Hilton, P.A., by Nelson G. Harris, for plaintiff-appellants.

          Burns, Day & Presnell, P.A., by James J. Mills, for defendant-appellees.

          ARROWOOD, JUDGE.

         Dennis T. Brown ("Brown") and Raquel Hernandez ("Hernandez") (together "plaintiffs") appeal from order granting summary judgment in favor of the Lattimore Living Trust (the "trust"), trustees William Timothy Lattimore and Pax Miller Lattimore (the "trustees"), and Proland Development, Inc. ("Proland") (together "defendants"). For the following reasons, we affirm in part and reverse in part.

         I. Background

         Plaintiffs initiated this action against defendants with the filing of a summons and a complaint in Wake County District Court on 17 May 2017. The complaint alleged that plaintiffs and the trust own adjacent property along Eton Road in Raleigh. Beginning in 2013, the trust made improvements to its property, "including installation of a brick wall and a metal fence along the property line separating the [properties]." Proland was hired by the trustees as the contractor for the wall. Plaintiffs alleged that during the installation of the brick wall, Proland came onto and damaged their property, and then failed to restore their property to its original condition as was agreed upon. Plaintiffs further alleged that the metal fence crosses a drainage ditch and, during heavy rains, causes debris to accumulate in the ditch and divert water, causing erosion on plaintiffs' property. Based on these allegations, plaintiffs asserted claims against defendants for (1) trespass, (2) breach of contract, and (3) nuisance.

         After Proland filed its initial response on 12 June 2017 denying the material allegations, on 7 July 2017, plaintiffs filed a motion for summary judgment as to Proland with an attached affidavit of Brown. Proland filed an amended answer on 20 July 2017, in which it asserted various affirmative defenses. The trust and the trustees filed an answer with affirmative defenses and counterclaims on 27 July 2017. On 14 August 2017, Proland's president filed an affidavit.

         Plaintiffs' motion for summary judgment was set to be heard on 17 August 2017; but when no one appeared for the hearing, the trial court dismissed the motion without prejudice. Later that afternoon, plaintiffs filed a withdrawal of their motion for summary judgment as to Proland, which appears to have been signed two days prior. Plaintiffs subsequently filed a response to the trust's counterclaims on 25 August 2017.

         On 20 March 2018, defendants filed a motion for summary judgment asserting that summary judgment was proper because "(a) [p]laintiffs' claims are barred, as a matter of law, by the applicable statutes of limitations, and/or (b) there is no genuine issue of material fact as to [p]laintiffs' claims and [d]efendants are entitled to summary judgment as a matter of law." A second affidavit of Brown was filed with exhibits on 7 May 2018 and defendants filed plaintiffs' depositions for the trial court's consideration.

         Defendants' motion for summary judgment was heard in Wake County District Court before the Honorable Ned W. Mangum on 10 May 2018. On 16 May 2018, the trial court entered an order granting defendants' motion for summary judgment. Defendants then filed a notice of voluntary dismissal dismissing their counterclaims against plaintiffs without prejudice on 27 June 2018. Plaintiffs filed notice of appeal from the 16 May 2018 summary judgment order on 16 July 2018.

         II. Discussion

         On appeal, plaintiffs contend the trial court erred by entering summary judgment on each of their three claims: trespass, breach of contract, and nuisance.

         "Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows that 'there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)).

         "When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party. Moreover, the party moving for summary judgment bears the burden of establishing the lack of any triable issue." Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citations omitted). The moving party may meet that burden by showing "either that (1) an essential element of the non-movant's claim is nonexistent; (2) the non-movant is unable to produce evidence which supports an essential element of its claim; or, (3) the non-movant cannot overcome affirmative defenses raised in contravention of its claims." Anderson v. Demolition Dynamics, Inc., 136 N.C.App. 603, 605, 525 S.E.2d 471, 472, disc. review denied, 352 N.C. 356, 544 S.E.2d 546 (2000).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Further, when the party moving for summary judgment pleads the statute of limitations, the burden is then placed upon the [non-movant] to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action.

Pharmaresearch Corp. v. Mash, 163 N.C.App. 419, 424, 594 S.E.2d 148, 151-52 (quotation marks and citations omitted), disc. review denied, 358 N.C. 733, ...


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