DENNIS T. BROWN and RAQUEL HERNANDEZ, Plaintiffs,
LATTIMORE LIVING TRUST dated August 3, 2011, by and through its Trustees, WILLIAM TIMOTHY LATTIMORE and PAX MILLER LATTIMORE; and PROLAND DEVELOPMENT, INC., Defendants.
in the Court of Appeals 13 March 2019.
by plaintiffs from order entered 16 May 2018 by Judge Ned W.
Mangum in Wake County District Court No. 17 CVD 6088.
& Hilton, P.A., by Nelson G. Harris, for
Day & Presnell, P.A., by James J. Mills, for
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.
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.
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.
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.
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
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.
appeal, plaintiffs contend the trial court erred by entering
summary judgment on each of their three claims: trespass,
breach of contract, and nuisance.
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)).
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, ...