RAWLS & ASSOCIATES, a North Carolina General Partnership Plaintiff-Appellee, v. ALICE W. HURST and BILLY A. HURST, Defendants-Appellants No. COA00-567 (Filed 19 June 2001) 1. Civil Procedure--summary judgment--sealed depositions--judge’s review-- copies of relevant pages The trial judge properly reviewed the documents before him on a summary judgment motion where four sealed depositions remained unopened but the judge was provided with copies of the relevant pages. 2. Real Property--sale and lease--latent ambiguity in description--revised final plat The trial court did not err by granting summary judgment for plaintiff on specific performance and breach of contract claims arising from the sale and lease of land where it was necessary for the court to consider extrinsic evidence because there was a latent ambiguity in the contract property description and the defendants breached the contract by not conveying the property according to a revised final plat. 3. Trespass--disputed property--presence of construction equipment and materials--delayed action--implied consent The trial court did not err by denying defendants’ motion for summary judgment on a trespass claim arising from a disputed sale and lease of property where there was implied consent by defendants because they knew of construction items on the property and did not take action for several months. 4. Unfair Trade Practices--real estate sale--plats The trial court did not err by denying defendants’ motion for summary judgment or by granting plaintiff’s motion for summary judgment on an unfair or deceptive trade practices claims arising from the disputed sale and lease of real property where there was no evidence that defendant seller was prevented from consulting with her attorney before signing the Final Plat or the Revised Final Plat, no evidence that she was prevented from carefully reviewing the plats before she signed them, and no evidence that plaintiff’s attorney used the firm preparing the plats for purposes of circumventing rules.Appeal by Mr. and Mrs. Hurst from order entered 21 February 2000 by Judge William C. Griffin, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 26 March 2001. Ward and Smith, P.A. by Donald S. Higley, II and Ryal W. Tayloe for Plaintiff-Appellee Rawls & Associates. Lee E. Knott, Jr. for Defendants-Appellants. BRYANT, Judge. Mr. and Mrs. Hurst appeal the trial court’s denial of their motion for summary judgment. We conclude the trial court committed no error. Mr. and Mrs. Hurst own a tract of land in Chocowinity, North Carolina (the Property). On 9 October 1996 the Hursts agreed to sell two lots (Out Parcels) and to lease a portion of the property (Tract 2) to Rawls for a forty-year term. The contract, as set out in a “Letter of Intent”, contained several conditions to be resolved before the closing date. One condition was to seek approval from the Town of Chocowinity for all zoning permits. Rawls employed Jarvis Associates, P.A. (Jarvis Associates), an engineering and surveying firm, to pursue a zoning amendment. Jarvis Associates prepared a new survey of the Property entitled “Preliminary Plat for Alice W. Hurst” (Preliminary Plat). This was the first of three plats prepared by Jarvis Associates. The Preliminary Plat altered the dimensions of the OutParcels and Tract 2 from how they were drawn on the contract map. On 5 March 1997, Charles H. Manning, III (Manning), a Jarvis Associates employee, met with Mrs. Hurst and obtained her approval and signature on the Preliminary Plat and application for a zoning amendment. A few months later a portion of the property was dedicated by Mrs. Hurst to the N.C. Department of Transportation (DOT) to widen U.S. Highway 17. On 14 November 1997 a new plat, entitled “Final Plat Alice W. Hurst” (Final Plat)was prepared. The Final Plat was approved and signed by Mrs. Hurst on 1 December 1997. Less than a week later, Mrs. Hurst and her children met with Manning and Rawls on the Property. Manning showed the corners of the Property staked in accordance with the Final Plat. Sometime thereafter Jarvis prepared a Revised Final Plat after discovering the Final Plat did not show internal access easements referred to in the contract. On 8 January 1998, Mrs. Hurst signed the Revised Final Plat. On 14 January 1998, the Hursts signed a forty-year lease for Tract 2. The description of Tract 2 in the lease was derived from the Revised Final Plat and the lease specifically referenced the Revised Final Plat. Then Mrs. Hurst, through her attorney, had a proposed deed forwarded to Rawls’ attorney conveying the Out Parcels. Rawls rejected the deed because it left a twenty foot gap between Tract 2 and the back lines of the Out Parcels. The property description in the deed was from the Preliminary Plat as opposed to the Revised Final Plat. Notwithstanding Rawls’ insistence that the Out Parcels beconveyed pursuant to the Revised Final Plat, Mrs. Hurst refused to do so. On 9 June 1998, Mrs. Hurst complained of trespass on her property - the Out Parcels. On 30 June 1998, Rawls filed an action seeking specific performance of the contract to convey the two Out Parcels in accordance with the Revised Final Plat. The Hursts asserted counterclaims for trespass and breach of contract. On 29 January 1999, Rawls’ motion for summary judgment was denied. On 1 April 1999, the trial court allowed Mr. and Mrs. Hurst’s motion for leave to amend their answer to assert a counterclaim for unfair or deceptive trade practices. On 24 February 2000, the trial court denied the Hursts’ motion for summary judgment and entered summary judgment in favor of Rawls. Mr. and Mrs. Hurst appealed. I. [1] On appeal, the Hursts first contend the trial court erred in failing to open and read every deposition filed prior to ruling on the summary judgment motion. We disagree. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” N.C.G.S. § 1A-1, Rule 56(c)(2000). A summary judgment motion should be granted when, based upon the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are to be decided. Loy v.Lorm Corp., 52 N.C. App. 428,
View Full Document
Unlocking...