Bryant & Assocs., LLC v. Evans

Annotate this Case

Download PDF

An unpublished opinion of the North Carolina Court of Appeals does not constitu te controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA12-732 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 BRYANT & ASSOCIATES, LLC and KENNETH L. BRYANT, Plaintiffs, v. Clay County No. 11-CVS-31 CHARLES E. EVANS and wife, TERESA G. EVANS, Defendants. Appeal by plaintiffs from order entered 15 February 2012 by Judge Zoro J. Guice in Clay County Superior Court. Heard in the Court of Appeals 22 October 2012. Law Offices of John M. plaintiffs appellants. Kirby, by John M. Kirby, for Jones, Key, Melvin & Patton, P.A., by Fred H. Jones and R.S. Jones, Jr., for defendants appellees. MARTIN, Chief Judge. Plaintiffs Bryant & Associates, LLC and Kenneth L. Bryant appeal from an order granting summary defendants Charles and Teresa Evans. remand. judgment in favor of We reverse in part and -2Plaintiffs and defendants own adjacent Chatuge in Clay County, North Carolina. property on Lake On 9 June 2010, a consent judgment was entered resolving a prior dispute between plaintiffs and defendants. The consent judgment required, among other things, that: [Evans] will maintain all vegetation in the area of [Evans] property, in the shape of a triangle, bounded as follows: Beginning at the 1933 MLS at the common West corner of [Evans] and Bryant, runs Westerly with [Evans] South line to the 1926 MLS; then in an Easterly direction to the West side of the large oak tree; then South to the Beginning. 1. All existing river birch in excess of 10 feet in height will remain but will be trimmed by [Evans] in the higher area and no limbs will be allowed to extend lower than 10 feet above the ground. 2. The existing plum tree shall remain. 3. All Leland cypress shall be removed. 4. All other vegetation shall be kept below 5 feet in height. A consent order filed 27 September 2010 resolved a subsequent dispute over the deadline for compliance with the terms of the 9 June 2010 consent order. compliance with the above In pertinent part, it provided that provisions shall be completed by December 1, 2010. Plaintiffs alleged that defendants failed to comply with the terms of the consent judgments and filed the present action -3on 7 February 2011. Specifically, plaintiffs alleged that defendants have failed to remove river birch trees of less than 10 feet in height and to trim the remaining trees so that no limbs extend lower than 10 feet above the ground; and . . . all other vegetation has not been trimmed to a size below 5 feet in height. Plaintiffs further alleged that defendants have located their boat dock at a location which encroaches upon the land owned by noncompliance plaintiffs . . . . was willful and addition to compensatory damages. Plaintiffs sought alleged punitive damages the in Defendants answered, denying the allegations. Defendants moved for summary judgment pursuant to N.C.G.S. § 1A-1 Rule 56 on 3 February 2012. In support of their motion, defendants filed the affidavit of defendant Teresa G. Evans, in which she averred that she and her spouse have complied with the requirements of the consent judgment on or before December 1, 2010. The affidavit further noted that if any vegetation had grown so as to be in violation of the height requirements of the consent judgment, her husband Charles E. Evans took action immediately to remove the offending vegetation as soon as it was brought to his attention. Finally, the affidavit specified that the Evans have at all times intended to comply with the letter and intent of the consent judgment and have -4done so to the best of their ability, in a timely manner. defendants also relied upon the deposition testimony The of plaintiffs expert, surveyor Donald Bruce Black. In opposition to the motion, plaintiffs relied upon the affidavit of Kenneth L. Bryant and the deposition testimony of Mr. Black. 2011 the Mr. Bryant s affidavit indicated that on 7 February river birch tree that is located with [sic] the triangular area defined in the consent judgment was not removed, nor was it trimmed up to a height of at least ten feet and that the other vegetation within the triangular area, including the shrubs along the fence, was not trimmed to a height of less than five feet. The affidavit specified that on 11 May 2011, certain shrubs within the triangular area were greater than 5 feet in height. The affidavit also asserted several areas of noncompliance the on date required by the second consent judgment, December 1, 2010, including the failure to remove the river birch tree, or to trim it to a height of 10 feet, and to trim the other shrubs to a height of less than 5 feet. Mr. Black s deposition indicated property in question on 8 July 2011. that he surveyed the Mr. Black testified that there was a clump of river birch trees nineteen feet in height with limbs However, on extending that date down Mr. to eight Black feet found no above the vegetation ground. in the -5triangular area that exceeded five feet and determined that the defendants boat dock did not encroach upon the plaintiffs property. On 15 February 2012, the trial court allowed defendants motion for summary defendants favor. in the amount judgment and entered a judgment in The court also awarded costs to defendants of $660 for surveying costs, $500 for deposition costs, and $30 for sheriff s department costs. Plaintiffs appeal. _________________________ Plaintiffs granted first defendants plaintiffs claims. argue motion the trial for court summary erred judgment when it as to 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, 523 24, 649 S.E.2d 382, 385 (2007)). Summary judgment motions test a claim s legal sufficiency for submission to the jury. Kennedy v. Polumbo, __ N.C. App. __, __, 704 S.E.2d 916, 920, appeal dismissed and disc. review denied, 365 N.C. 331, 718 S.E.2d 368 (2011). If the pleadings, depositions, -6interrogatories, admissions on file, and affidavits establish that there is no genuine issue of material fact, leaving only questions of law, then summary judgment is appropriate. When a motion for summary judgment is properly supported affidavits, depositions, and answers to interrogatories, Id. by an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial. N.C.R. Civ. P. 56(e). All facts asserted by the adverse party are taken as true, and their inferences must be viewed in the light most favorable to that party. App. __, __, Marso v. United Parcel Service, Inc., __ N.C. 715 S.E.2d 871, 873 (2011) (quoting Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)). Plaintiffs assert there is a genuine issue of material fact regarding defendants compliance with both the original 9 June 2010 consent judgment and the later 27 September 2010 consent judgment which required compliance judgment by 1 December 2010. with the original consent Defendants affidavit asserts that they have complied with the requirements imposed upon them by the Consent Judgment . . . . All action required to be taken was December completed further assert on or that before they have at all 1, 2010. Defendants times . . . compl[ied] -7with the letter and intent of the consent judgment to the best of their ability. In contrast, plaintiffs verified complaint and affidavit raise specific issues of fact concerning whether defendants had complied by 1 December 2010 with the maintenance of vegetation requirements contained in the consent order specifying that no river birch limbs be allowed to extend lower than ten feet above the ground and that all other vegetation be kept below five feet in height. the same specific factual Plaintiffs affidavit raises issues concerning defendants compliance with the consent order as of 7 February 2011 and 11 May 2011. factual The issue of deposition of defendants Donald Bruce compliance with Black the raises the requirement that no river birch limbs be allowed to extend lower than ten feet above the ground as of 8 July 2011. Therefore, the record, when viewed in the light most favorable to plaintiffs, evinces the existence of a genuine issue of material fact as to whether defendants have complied with the consent order s requirements, both on 10 December 2010 and in the months that followed. It was erroneous to grant summary judgment as to this claim. Defendants argue on appeal that [t]his case is a breach of contract action; as such the issue becomes whether or not the Defendants have substantially complied with the terms of the agreement. It is true that a consent judgment is the contract -8of the parties entered upon the record with the sanction of the court. Crane v. Green, 114 N.C. App. 105, 106, 441 S.E.2d 144, 144 45 (1994) (citing Armstrong v. Aetna Ins. Co., 249 N.C. 352, 356, 106 S.E.2d 515, 518 (1959)). However, whether there has been substantial performance of a contract is an issue of fact for the jury. N.C. App. Spivey & Self, Inc. v. Highview Farms, Inc., 110 719, 727, 431 S.E.2d 535, 539 (quoting John D. Calamari & Joseph M. Perillo, The Law of Contracts § 11-18(b) (3d ed. 1987), disc. review denied, 334 N.C. 623, 435 S.E.2d 342 (1993); Almond Grading Co. v. Shaver, 74 N.C. App. 576, 578, 329 S.E.2d 417, 418 (1985); Black v. Clark, 36 N.C. App. 191, 196, 243 S.E.2d 808, 812 (1978). Therefore, whether defendants have substantially the appropriate complied with consideration consent during judgment summary is judgment not and an an unavailing argument on appeal. Plaintiffs next argue the trial court erred in granting summary judgment with respect to their claim that defendants boat dock encroached upon land owned by plaintiffs. We agree. Plaintiffs alleged the defendants boat dock encroached on their property in their original complaint. Defendants moved for summary judgment relying in part upon the deposition of plaintiffs indicated expert, in his surveyor Donald deposition that Bruce no Black. portion Mr. of the Black dock -9encroached upon the plaintiffs property. In opposition to defendants motion, plaintiffs offered the affidavit of Kenneth L. Bryant. Nowhere in Mr. Bryant s affidavit was the boat dock mentioned. Thus, plaintiffs only support for their claim that the boat dock encroached upon their property was the allegation contained in their original complaint. However, plaintiffs original complaint was a verified complaint. While the trial ruling court on may not consider motion for be treated as summary unverified pleading when verified complaints purpose. Rankin v. Food Lion, __ N.C. App. __, __, 706 S.E.2d may a an judgment, affidavits for that 310, 315 16 (2011) (quoting Tew v. Brown, 135 N.C. App. 763, 767, 522 S.E.2d 127, 130 (1999), disc. review allowed, 352 N.C. 145, 531 S.E.2d 213 (2000)). improvidently To be treated as an affidavit, a verified complaint must be (1) made on personal knowledge, evidence, (2) and set (3) forth show facts that affirmatively would that be the competent to testify to the matters stated therein. 706 S.E.2d at 315. admissible affiant is Id. at __, In Bauer v. Douglas Aquatics, Inc., 207 N.C. App. 65, 698 S.E.2d 757 (2010), this Court treated a verified complaint as an affidavit where the verification of the complaint indicated that the complaint was made with personal knowledge and the affiant was clearly a party to the contract -10and [was] competent to attest to the discussions that transpired during negotiations and execution of the agreement. Id. at 69 70, 698 S.E.2d at 761 62. In this case, the verification of the complaint uses the same language as the verification in Bauer concerning personal knowledge. Additionally, the issue at hand pertains to the boundaries of Mr. Bryant s own property, a subject about which he asserts testify. he has personal knowledge and is competent to Thus, the verified complaint may be treated as an affidavit. See Rankin, __ N.C. App at __, 706 S.E.2d at 315; Bauer, 207 N.C. App. at 69 70, 698 S.E.2d at 761 62. plaintiffs verified complaint asserted specific As the facts that raise a question of whether defendants boat dock encroached upon plaintiffs land, there is a genuine issue of material fact precluding summary judgment. Therefore, the trial court erred when it granted summary judgment of plaintiffs claim related to the alleged encroachment by defendants boat dock. Plaintiffs further argue the trial court erred when it granted summary judgment as to plaintiffs claims for punitive damages. We disagree. Generally punitive damages are available if a claimant proves that the defendant is liable for compensatory damages and then proves, by clear and convincing evidence, that the -11defendant conduct. engaged in fraud, malice, or willful or wanton N.C. Gen. Stat. § 1D-15 (2011); Carcano v. JBSS, LLC, 200 N.C. App. 162, 179 80, 684 S.E.2d 41, 54 (2009). Breach of contract alone is not enough to support punitive damages. N.C. Gen. Stat. § 1D-15(d). A careful review of the entire record on appeal even when viewed in the light most favorable to plaintiffs reveals there is no evidence of fraud, malice, or willful or wanton conduct on the part of defendants. Therefore, the trial court did not err when it granted summary judgment in favor of defendants as to plaintiffs punitive damages claim. Finally, plaintiffs contend the costs awarded by the trial court were improper. As we reverse in part the trial court s order judgment for summary and remand for additional proceedings, we decline to address these arguments, and instead vacate the award of costs in its entirety. Affirmed in part, reversed in part and remanded. Judges STEELMAN and ERVIN concur. Report per Rule 30(e).

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.