Sauls v. Barbour ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-1042
Filed: 1 September 2020
Wake County, No. 18-CVS-010628
JOHN D. SAULS, et al., Plaintiffs,
v.
ROBERT O. BARBOUR, et al., Defendants.
Appeal by Defendants from order entered 11 July 2019 by Judge Paul C.
Ridgeway in Wake County Superior Court. Heard in the Court of Appeals 11 August
2020.
Ragsdale Liggett PLLC, by Amie C. Sivon and Matthew L. Hubbard, for
Plaintiffs-Appellees.
Edmundson & Burnette, LLP, by James T. Duckworth, III, and Daniel R.
Flebotte & Associates, PLLC, by Daniel R. Flebotte, for Defendants-Appellants.
COLLINS, Judge.
Defendants appeal from an order granting Plaintiffs’ motion for judgment on
the pleadings in their action to quiet title and for declaratory judgment that Plaintiffs
have an appurtenant easement over Defendants’ property. Defendants argue that
the trial court erred because Defendants’ submission of two affidavits opposing the
motion converted the motion into one for summary judgment, there were material
issues of fact that precluded the trial court from effectively granting summary
SAULS V. BARBOUR
Opinion of the Court
judgment, and Plaintiffs are not entitled to an appurtenant easement as a matter of
law. We affirm the order.
I. Procedural History
Plaintiffs brought an action in Wake County Superior Court on 24 August 2018
to quiet title and for declaratory judgment that Plaintiffs have an appurtenant
easement of ingress and egress across Defendants’ property. Plaintiffs attached to
the complaint the recorded deeds and maps for both Plaintiffs’ and Defendants’
properties. Plaintiffs filed an amended complaint on 16 April 2019. Defendants filed
an answer on 8 May 2019. The next day, Plaintiffs filed a motion for judgment on the
pleadings. On 20 June 2019, Defendants filed two affidavits in opposition to the
motion.1 After conducting a hearing on 9 July 2019, the trial court entered an order
on 11 July 2019, granting Plaintiffs’ motion for judgment on the pleadings, and
declaring that “Plaintiffs have a perpetual appurtenant easement across the land
designated “30’ INGRESS / EGRESS EASEM’T” on the plat maps referenced by both
Plaintiffs’ and Defendants’ deeds.” Defendants timely filed notice of appeal.
II. Factual Background
Prior to 1980, Walter and Coma Willard owned a tract of land located between
Penny Road and Lake Wheeler Road in Wake County. In 1980, the Willards conveyed
the northwestern, 3-acre portion of their property at 5005 Penny Road (“Penny Rd.
1 Defendants did not otherwise file a response in opposition to the motion.
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Property”) to David Hursey and his wife by a general warranty deed recorded in the
Wake County Registry.2 The Willards retained ownership of the remaining tract
(“Willard Tract”) that adjoined the Penny Rd. Property on the east and south sides
and extended east to Lake Wheeler Road. A survey map of the Penny Rd. Property
was recorded in 1981 (“Penny Rd. Property Map”), and is depicted below. The Penny
Rd. Property Map shows both the Penny Rd. Property and the adjoining Willard
Tract. The Willard Tract includes an area labeled “30’ INGRESS EGRESS
EASEMENT” running across the entire northern border of the Willard Tract, from
the Penny Rd. Property on the west side to Lake Wheeler Road on the east side.
2 All recordings referred to herein were filed in the Wake County Registry.
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Penny Rd. Property Map
In 1983, the Willards subdivided the northeastern portion of the Willard Tract
at 4900 Lake Wheeler Road and recorded a map of the newly created 1.43-acre parcel,
labeling it “Tract A” (“Subdivision Map”). The Subdivision Map, depicted below,
includes an area on the northern border of Tract A labeled “30’ INGRESS / EGRESS
EASEM’T,” running across the entire 314.47-foot northern boundary of Tract A, from
the Penny Rd. Property on the west side to Lake Wheeler Road on the east side. The
dotted line representing the southern boundary of the area labeled “30’ INGRESS /
EGRESS EASEM’T” extends partly into the adjoining Penny Rd. Property. At the
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Opinion of the Court
time the Subdivision Map was recorded, the Penny Rd. Property was owned by the
Hurseys and is accordingly labeled “Dave Hursey.”
Subdivision Map
In 1984, the Willards conveyed Tract A at 4900 Lake Wheeler Road (“Lake
Wheeler Rd. Property”) to Robert Barbour and his wife, Barbara Barbour, by a
recorded general warranty deed (“Barbour Deed”). The Barbour Deed expressly
refers to the Subdivision Map recorded by the Willards in 1983, which shows the “30’
INGRESS / EGRESS EASEM’T.” The Barbour Deed also states that title to the
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Opinion of the Court
property is subject to “all easements of record in the Wake County Registry which
affect the title of the said lot.”
The Barbers conveyed the Lake Wheeler Rd. Property in 2018 to their son,
Robert Barbour, Jr., by a non-warranty deed (“Barbour Jr. Deed”). The Barbour Jr.
Deed was recorded and expressly refers to the Subdivision Map recorded by the
Willards in 1983, which shows the “30’ INGRESS / EGRESS EASEM’T.” Robert
Barbour, Jr., is the record owner of the Lake Wheeler Road Property and resides there
with his father, Robert Barbour (collectively “Defendants”).
The Penny Rd. Property was conveyed by the Hurseys in 1986 to Richard
Arnold by general warranty deed. Arnold conveyed it in 1987 to John Sauls and his
wife, Susan Jane Curtis, by general warranty deed (“Sauls Deed”). The Sauls Deed
expressly refers to the Penny Rd. Property Map recorded in 1981, which shows the
“30’ INGRESS EGRESS EASEMENT.” Plaintiffs are members of the Sauls family,
who are currently the record owners of the Penny Rd. Property.
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Opinion of the Court
Willard Tract
Lake Wheeler Rd.
Penny Rd. Property Property
Willards conveyed to Willards created by
Hurseys in 1980 subdivision in 1983
Hurseys conveyed to Willards conveyed to
Arnold in 1986 Barbours in 1984
Arnold conveyed to Sauls
Barbours conveyed to
and wife, Susan Jane
Barbour, Jr. in 2018
Curtis, in 1987
Plaintiffs allege that their family members used the property designated on
the maps as an ingress/egress easement across Defendants’ property to access their
home from Lake Wheeler Road. In April 2018, Defendants parked a vehicle on that
property, thereby blocking Plaintiffs’ access to the Penny Rd. Property from Lake
Wheeler Road. Barbour, Jr., later told Sauls that Plaintiffs do not have a legal
easement over Defendants’ property and that they could not continue to use the
easement across Defendants’ property to access their own.
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Opinion of the Court
III. Discussion
Defendants argue that the trial court erred by granting Plaintiffs’ motion for
judgment on the pleadings, because: (1) Defendants’ submission of two affidavits
opposing the motion converted it into one for summary judgment; (2) the trial court
erred by effectively granting summary judgment; and (3) even if not converted into
summary judgment, judgment on the pleadings was improper because material
issues of fact exist, and Plaintiffs are not entitled to a perpetual appurtenant
easement as a matter of law.
A. Submission of Affidavits
Defendants first argue that their submission of two affidavits in opposition to
Plaintiffs’ motion for judgment on the pleadings converted the motion into one for
summary judgment.
Rule 12(c) of the North Carolina Rules of Civil Procedure provides:
After the pleadings are closed but within such time as not
to delay the trial, any party may move for judgment on the
pleadings. If, on a motion for judgment on the pleadings,
matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by
Rule 56.
N.C. Gen. Stat. § 1A-1, Rule 12(c) (2019) (emphasis added).
This provision sets forth a procedure analogous to the conversion of a motion
to dismiss under Rule 12(b)(6) to a motion for summary judgment. See 5C Charles A.
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Wright & Arthur R. Miller, Federal Practice & Procedure § 1371 (3d ed. 2020) (citing
Fed. R. Civ. P. 12(d), “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the
pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56.”). With respect to both motions to
dismiss and motions for judgment on the pleadings, the trial court is vested with
discretion to choose whether to consider materials outside the pleadings submitted in
support of or in opposition to those motions. See id. at §§ 1366, 1371. See also
McBurney v. Cuccinelli, 616 F.3d 393, 410 (4th Cir. 2010) (“[A] judge need not convert
a motion to dismiss into a motion for summary judgment as long as he or she does
not consider matters outside the pleadings. . . . [N]ot considering such matters is the
functional equivalent of excluding them—there is no more formal step required.”
(internal quotation marks and citation omitted)).
Documents attached to and incorporated within a complaint become part of the
complaint. Weaver v. Saint Joseph of the Pines, Inc., 187 N.C. App. 198, 204, 652
S.E.2d 701, 707 (2007). “They may, therefore, be considered in connection with a Rule
12(b)(6) or 12(c) motion without converting it into a motion for summary judgment.”
Id. (citation omitted). “[I]n the event that the matters outside the pleadings
considered by the trial court consist only of briefs and arguments of counsel, the trial
court need not convert the motion into one for summary judgment.” Steele v. Bowden,
238 N.C. App. 566, 573, 768 S.E.2d 47, 54 (2014) (internal quotation marks, ellipses,
brackets, and citation omitted).
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In determining whether a trial court considered matters outside the pleadings
when entering judgment on the pleadings, reviewing courts have looked to cues in
the trial court’s order. See Davis v. Durham Mental Health/Dev.
Disabilities/Substance Abuse Area Auth., 165 N.C. App. 100, 105, 598 S.E.2d 237,
241 (2004) (motion for judgment on the pleadings not converted into motion for
summary judgment, even though plaintiff presented at least three documents to the
trial court, where the order stated, “[b]ased upon the pleadings and the arguments of
counsel, the Court finds that Defendant is entitled to entry of a judgment in its favor
based on the pleadings”); Privette v. Univ. of N.C. at Chapel Hill, 96 N.C. App. 124,
132, 385 S.E.2d 185, 189 (1989) (Rule 12 motion was not converted into Rule 56
motion where affidavits were introduced to support the motion, because “the trial
court specifically stated in its order that for the purposes of the Rule 12 motion, it
considered only the amended complaint, memoranda submitted on behalf of the
parties[,] and arguments of counsel”).
In this case, prior to the hearing on the motion for judgment on the pleadings,
Defendants filed two affidavits in opposition to the motion.3 In its order granting the
motion, the trial court specifically stated:
After reviewing Plaintiffs’ motion, evaluating the
pleadings and all attachments, and considering the
arguments of counsel, this Court concludes that no genuine
issues of material fact remain, that this case may be
3Plaintiffs state in their appellate brief that they asked the trial court at the motion hearing
to exclude the affidavits. Because the record on appeal does not contain a transcript of the hearing,
we cannot determine whether the trial court ruled on this request in open court.
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decided as a matter of law, and that it is therefore
appropriate to enter judgment on the pleadings.
As in Davis and Privette, the trial court’s order indicates that the trial court
evaluated the pleadings and all attachments, and considered the arguments of
counsel. Notably, it does not state that the trial court considered Defendants’
affidavits, which would appropriately have been considered on a motion for summary
judgment. Additionally, nothing in the record indicates that the trial court
considered matters beyond the pleadings, arguments, and briefs. Accordingly,
although the affidavits were presented to the trial court, they were excluded by the
trial court from consideration in its ruling. The motion was therefore not converted
into one for summary judgment.
B. Summary Judgment
By Defendants’ next two arguments, Defendants contend that the trial court
erred in effectively awarding Plaintiffs summary judgment. These arguments are
necessarily dependent upon Defendants’ position that their submission of affidavits
converted Plaintiffs’ motion for judgment on the pleadings into one for summary
judgment. However, as explained above, Plaintiffs’ motion for judgment on the
pleadings was not converted into one for summary judgment where the trial court
excluded Defendants’ affidavits, and the trial court granted judgment on the
pleadings in favor of Plaintiff. Defendants’ argument is thus overruled.
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Opinion of the Court
C. Judgment on the Pleadings
Finally, Defendants argue that, even if the motion for judgment on the
pleadings was not converted into one for summary judgment, the trial court erred by
entering judgment on the pleadings. Defendants specifically allege that a material
issue of fact exists as to whether the description of the purported appurtenant
easement is sufficient to identify such an easement.
This Court reviews a trial court’s order granting a motion for judgment on the
pleadings de novo. Toomer v. Branch Banking & Tr. Co., 171 N.C. App. 58, 66, 614
S.E.2d 328, 335 (2005). Under a de novo review, we “may freely substitute our
judgment for that of the trial court.” Carteret County v. Kendall, 231 N.C. App. 534,
536, 752 S.E.2d 764, 765 (2014) (internal quotation marks, brackets, and citation
omitted).
“A motion for judgment on the pleadings is the proper procedure when all the
material allegations of fact are admitted in the pleadings and only questions of law
remain.” Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974)
(citations omitted). The movant must show that no material issue of facts exists and
that the movant is entitled to judgment as a matter of law. Id.
The trial court is required to view the facts and permissible
inferences in the light most favorable to the nonmoving
party. All well pleaded factual allegations in the
nonmoving party’s pleadings are taken as true and all
contravening assertions in the movant’s pleadings are
taken as false. All allegations in the nonmovant’s
pleadings, except conclusions of law, legally impossible
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facts, and matters not admissible in evidence at the trial,
are deemed admitted by the movant for purposes of the
motion.
Id. (citations omitted).
“An easement is a right to make some use of land owned by another.”
Tanglewood Prop. Owners’ Ass’n, Inc. v. Isenhour, 254 N.C. App. 823, 830, 803 S.E.2d
453, 458 (2017) (ellipsis and citation omitted). “An appurtenant easement is an
easement created for the purpose of benefiting particular land . . . [and] attaches to,
passes with[,] and is an incident of ownership of the particular land.” Id. at 830, 803
S.E.2d at 459 (citation omitted).
“An easement can be created in several ways, including grant, estoppel, way of
necessity, implication, dedication, prescription, reservation, and condemnation.” Id.
(citation omitted). “Although easements must generally be created in writing, courts
will find the existence of an easement by implication under certain circumstances.”
Knott v. Wash. Hous. Auth., 70 N.C. App. 95, 97, 318 S.E.2d 861, 862-63 (1984)
(citation omitted). “Appurtenant easements implied by plat are recognized in North
Carolina.” Tanglewood, 254 N.C. App. at 830, 803 S.E.2d at 459 (citing Hinson v.
Smith, 89 N.C. App. 127, 131, 365 S.E.2d 166, 168 (1988) (holding property owners
possess “a private easement over and across all of the property designated as ‘Beach’
on the recorded plat”)). An appurtenant easement may be created “by implied
dedication, with either a formal or informal transfer,” Nelms v. Davis, 179 N.C. App.
206, 209, 632 S.E.2d 823, 826 (2006) (citation omitted), and may be created “when the
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purchaser whose transaction relies on the plat is conveyed the land,” Price v. Walker,
95 N.C. App. 712, 715, 383 S.E.2d 686, 688 (1989). See also Hinson, 89 N.C. App. at
130, 365 S.E.2d at 167 (“Conduct which implies the intent to dedicate may operate as
an express dedication, as where a plat is made and land is sold in reference to the
plat.”).
“The easement areas must be sufficiently identified on the plat in order to
establish an easement, although an express grant is not required.” Tanglewood, 254
N.C. App. at 830, 803 S.E.2d at 459 (citing Conrad v. West-End Hotel & Land Co.,
126 N.C. 776, 779-80, 36 S.E. 282, 283 (1900) (holding purchasers’ deed reference to
plat containing area identified “Grace Court” sufficient to establish purchasers’ right
to “open space of land”); Harry v. Crescent Res., Inc., 136 N.C. App. 71, 75, 80, 523
S.E.2d 118, 121, 123-24 (1999) (determining remnant parcels depicted on plat and
“described by metes and bounds” but not further identified insufficient to establish
an easement); Hinson, 89 N.C. App. at 130-31, 365 S.E.2d at 167-68 (finding area
designated “Beach” on recorded plat referenced by property owners’ deeds sufficient
to establish a private easement)).
In this case, Plaintiffs attached the following documents of public record to
their amended complaint, incorporating them by reference: the Sauls Deed, which
explicitly refers to the Penny Rd. Property Map; the Penny Rd. Property Map; the
Barbour Deed and the Barbour Jr. Deed, which both explicitly refer to the Subdivision
Map; and the Subdivision Map. These documents thus became part of the complaint
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and were properly considered in connection with Plaintiffs’ motion for judgment on
the pleadings. See Weaver, 187 N.C. App. at 204, 652 S.E.2d at 707. Defendants
admitted the existence of these documents in their answer and admitted that “[b]oth
plats referenced in Plaintiffs’ and Defendants’ deeds show the Easement as ‘30’
INGRESS / EGRESS EASEM’T.’”
The Sauls Deed expressly refers to the Penny Rd. Property Map, which shows
the 30-foot ingress/egress easement on and across Defendants’ property. The Barbour
Deed and Barbour Jr. Deed expressly refer to the Subdivision Map, which shows the
30-foot ingress/egress easement on and across Defendants’ property. See Price, 95
N.C. App. at 715, 383 S.E.2d at 688 (An appurtenant easement may be created “when
the purchaser whose transaction relies on the plat is conveyed the land”). The
inclusion of the specifically labeled 30-foot ingress/egress easement on the recorded
Subdivision Map demonstrates the Willards’ intent that the ingress/egress easement
be used by the owners of the Penny Rd. Property to traverse the Lake Wheeler Rd.
Property to access their property from Lake Wheeler Road. See Hinson, 89 N.C. App.
at 130, 365 S.E.2d at 167; Nelms, 179 N.C. App. at 209, 632 S.E.2d at 826
(appurtenant easement may be created by implied dedication, either by formal or
informal transfer).
As in Price and Hinson, the easement in this case is sufficiently identifiable to
establish an ingress/egress easement across Defendants’ Lake Wheeler Rd. Property
for the benefit of Plaintiffs’ Penny Rd. Property. Both recorded maps show that the
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easement across Defendants’ property: (a) is labeled as an ingress/egress easement;
(b) is coterminous with the northern boundary of Defendants’ property, which is
described in metes and bounds in the Barbour Jr. Deed, on the Subdivision Map, and
on the Penny Rd. Property Map, and is labeled 314.47 feet long; (c) intersects with
Lake Wheeler Road on its east side; (d) intersects with the Penny Rd. Property on the
west side; and (e) is 30 feet wide, as can be inferred from the “30’ ingress/egress
easement” label.
Defendants argue that the description of the easement on the map is
ambiguous. Defendants assert that “notwithstanding the ingress/egress terms,”
“there is a question whether the description of the purported ingress/egress easement
is, as a matter of law, sufficient to identify itself or whether it locates the utility
easement.” Defendants point to the affidavits submitted to, and excluded by, the trial
court to support their argument that the area labeled on the maps “30’ INGRESS /
EGRESS EASEM’T” is not an ingress/egress easement but is actually a 30-foot utility
easement. Defendants’ argument is meritless.
First, the plain language of the label “INGRESS / EGRESS EASEM’T” defeats
Defendants’ argument that the easement shown on the parties’ respective maps is
not an ingress/egress easement but is instead a “utility easement.” See Swaim v.
Simpson, 120 N.C. App. 863, 864-65, 463 S.E.2d 785, 787 (1995) (“Because the deed
identified the easement as one for ingress and egress, the trial court erred in
expanding its use” “to provide for the location, installation, and maintenance of
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facilities for domestic utilities[.]”). “When the language [of a conveyance] . . . is clear
and unambiguous, effect must be given to its terms . . . .” Weyerhaeuser Co. v.
Carolina Power & Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962). The term
“ingress/egress easement” is neither ambiguous nor silent as to the scope of the
easement. As Defendants note, the terms “ingress/egress” must be ignored in order
for Defendants’ argument to be tenable.
Defendants also argue that the “30’ ingress/egress easement” language is
insufficient to identify an appurtenant easement because the southern boundary line
of the easement is incapable of being located. Defendants assert that it is not possible
to determine if the easement is 30 feet wide since the easement’s label on the
Subdivision Map does not contain the word “wide.” However, according to the
Subdivision Map, the length of the easement is 314.47 feet. Hence, the 30-foot
descriptor refers to the width of the easement.
Defendants further argue that the southern boundary line of the easement is
incapable of being located because it is represented by a dotted line, which indicates
that this boundary was not surveyed. As explained above, the easement represented
on the maps is 314.47 feet long and 30 feet wide. The northern boundary of the
easement is coterminous with the northern boundary of the Lake Wheeler Rd.
Property. The southern boundary of the easement is located 30 feet from and below
the northern boundary of the property at all points along the easement.
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The recorded deeds and plats create a sufficiently identifiable appurtenant
ingress/egress easement across the Lake Wheeler Rd. Property, which provides access
to the Penny Rd. Property from Lake Wheeler Road. See Tanglewood, 254 N.C. App.
at 830, 803 S.E.2d at 459; Hinson, 89 N.C. App. at 130, 365 S.E.2d at 167. All
material allegations of fact were admitted in the pleadings. Plaintiffs were entitled
to an easement as a matter of law. The trial court did not err by entering judgment
on the pleadings in favor of Plaintiff. See Ragsdale, 286 N.C. at 137, 209 S.E.2d at
499.
III. CONCLUSION
The motion for judgment on the pleadings was not converted into one for
summary judgment. Judgment on the pleadings was proper because all material
allegations of fact were admitted in the pleadings. As a matter of law, Plaintiffs’
dominant estate is served by a perpetual appurtenant easement across the portion of
Defendants’ property designated “30’ INGRESS / EGRESS EASEM’T” on the plat
maps referenced by both Plaintiffs’ and Defendants’ deeds. We affirm the trial court’s
order.
AFFIRMED.
Chief Judge McGEE and Judge TYSON concur.
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