Henderson v. Garcia Motorrad, LLC

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure. IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA15-1250 Filed: @ Wake County, No. 13 CVS 5714 PATRICK J. HENDERSON, CO-TRUSTEE of the WALTON BURTON JAMES, SR. TESTAMENTARY TRUST (AS AMENDED), Plaintiff, v. GARCIA MOTORRAD, LLC, d/b/a DUCATI RALEIGH; and NEXT LEVEL CUSTOMS, LLC, Defendants, v. GARCIA MOTORRAD, LLC, d/b/a DUCATI RALEIGH, Third-Party Plaintiff, v. MUSE M. JAMES and WALTON JAMES, JR., Third-Party Defendants. Appeal by Plaintiff from order entered 8 January 2014 by Judge Shannon R. Joseph in Superior Court, Wake County. Heard in the Court of Appeals 31 March 2016. Boxley, Bolton, Garber & Haywood, L.L.P., by Ronald H. Garber; and Hemphill, Gelder, Jenkins & Monroe, P.C., by John. R. Hemphill, for PlaintiffAppellant. Nicholls & Crampton, PA, by Adam M. Gottsegen, for Defendant-Appellee Motorrad, LLC, d/b/a Ducati Raleigh. HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court Smith Debnam Narron Drake Saintsing & Myers, LLP, by Bettie Kelley Sousa, for Defendant-Appellee Next Level Customs, LLC. McGEE, Chief Judge. Patrick J. Henderson (“Plaintiff”), co-trustee of the Walton Burton James, Sr. Testamentary Trust (as amended) (“the Trust”), appeals from an order dismissing his complaint against Garcia Motorrad, LLC, d/b/a Ducati Raleigh (“Garcia Motorrad”) and Next Level Customs, LLC (“Next Level”) (collectively, “Defendants”). We affirm in part, reverse in part, and remand for further proceedings. I. Background This case concerns the rental of a parcel of real property located at 9004 and 9006 Glenwood Avenue in Raleigh, North Carolina (“the real property”). According to the allegations in Plaintiff’s complaint, the Trust owns at least a one-half interest in the real property. Ownership of the real property is subject to separate litigation that shows the real property was originally owned by Third-Party Defendant Muse M. James (“Muse”) and her husband, Walton Burton James, Sr. (“Walton Sr.”) as tenants by the entirety. James v. Schoonderwoerd, 229 N.C. App. 681, 750 S.E.2d 920, 2013 N.C. App. LEXIS 943, at *2 (2013) (unpublished). Walton Sr. died in 2001 and, pursuant to the terms of his will, the Trust received a one-half interest in the real property, while Muse, Plaintiff’s grandmother, retained her one-half interest as a tenant-in-common with the Trust. Id. at *4-6. Several years later, on 31 March -2- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court 2008, Muse conveyed her one-half interest in the real property to Third-Party Defendant Walton James, Jr. (“Walton Jr.”), Plaintiff’s uncle. Id. at *2, 8. Muse retained a life estate in the real property. Id. Muse then leased a portion of the real property to Next Level on or about 1 January 2011, and leased a separate portion of the real property to Garcia Motorrad on 23 July 2012. This is the second time this matter has been appealed to this Court, and many of the pertinent facts were discussed in our previous opinion, Henderson v. Garcia Motorrad, LLC, ___ N.C. App. ___, 767 S.E.2d 149, 2014 N.C. App. LEXIS 1132 (2014) (unpublished) (“Henderson I”): Since 22 February 2010, [P]laintiff and [Muse] have contested the ownership of [the real property] in a separate litigation. See James v. Schoonderwoerd, [229] N.C. App. [681], 750 S.E.2d 920 (unpublished), disc. rev. denied, 367 N.C. 279, 752 S.E.2d 467 (2013). On 19 April 2013, [P]laintiff sued [D]efendants for trespass, quantum valebant, quantum meruit, breach of implied contract, and unpaid rent. Plaintiff alleged that the trust owns at least a one-half undivided interest in the parcels. On or about 7 June 2013, Garcia Motorrad filed a thirdparty complaint against [Muse] and her son, [Walton Jr.], (“third-party defendants”) for fraud, unfair and deceptive trade practices, unjust enrichment, quantum meruit, and breach of contract. On 12 June 2013, Garcia [Motorrad] moved to dismiss [P]laintiff’s complaint. The trial court entered a preliminary injunction ordering Garcia Motorrad to pay half of the monthly rent under its lease agreement to the Clerk of the Superior Court of Wake County. On 24 June 2013, Next Level also moved to dismiss [P]laintiff’s -3- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court complaint. Next Level and third-party defendants agreed to a preliminary injunction ordering Next Level to pay half of the monthly rent under its lease agreement to the Clerk of the Superior Court of Wake County. On 2 October 2013, the trial court held a hearing on [D]efendants’ motion to dismiss. Henderson I, 2014 N.C. App. LEXIS 1132, at *2-3. At the hearing in the present case, the trial court considered the arguments of counsel for Plaintiff and Defendants. Many of the matters presented were outside the allegations in Plaintiff’s complaint, including: (1) Muse had some interest in the real property; (2) Defendants each entered into separate lease agreements to lease portions of the real property from Muse; (3) Defendants operated their respective businesses on the real property; and (4) a separate lawsuit concerning, inter alia, ownership of the real property was ongoing between Plaintiff and Muse. The trial court granted Defendants’ motion to dismiss pursuant to N.C. Gen. Stat. §§ 1A-1, Rules 12(b)(6) and 12(b)(7) on 8 January 2014. Plaintiff appealed. In Henderson I, this Court held Plaintiff’s appeal was interlocutory, because the third-party claims remained pending in the trial court. See id. at *2. This Court did not find a substantial right that would be affected absent immediate review, and dismissed Plaintiff’s appeal. Id. Following this Court’s dismissal, Garcia Motorrad and Next Level voluntarily dismissed their third-party complaint and counterclaims, respectively. Plaintiff again appeals. II. Analysis -4- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court Plaintiff argues the trial court erred by: (1) granting Defendants’ motion to dismiss each of Plaintiff’s claims; and (2) granting Defendants’ motion to dismiss for failure to join a necessary party. A. Defendants’ Motion to Dismiss Plaintiff first argues the trial court erred in granting Defendants’ motion to dismiss each of his claims. We note that, as a preliminary matter, although the trial court granted Defendants’ Rule 12(b)(6) motion to dismiss, it considered matters outside the complaint in reaching its decision. At the hearing on Defendants’ motion to dismiss, the trial court repeatedly admonished both parties that documents outside the complaint would not be accepted or considered by the court. Notwithstanding these admonitions, however, a review of the transcript shows that the trial court referred to, and ultimately considered, matters outside the complaint. Most integrally, the trial court considered Muse’s ownership interest in the real property and the existence of lease agreements between Muse and Defendants. These facts, not found in the complaint, formed the basis for the trial court’s decision and ultimate order on Defendants’ motion to dismiss. This is evidenced by the trial court’s written order granting Defendants’ motion that explicitly refers to both the lease agreements and two previously entered preliminary injunctions ordering Defendants to pay half of the rent under the lease agreements into the court pending the resolution of the case. It is well-settled in North Carolina that “[w]here -5- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court extraneous matter is received and considered on a Rule 12(b)(6) motion to dismiss, the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in [N.C. Gen. Stat. §] 1A-1, Rule 56.” Fowler v. Williamson, 39 N.C. App. 715, 717, 251 S.E.2d 889, 890 (1979) (citing Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971)). As a general matter, “the Rules of Civil Procedure do not require one party to anticipate the making of a motion by another party.” Locus v. Fayetteville State University, 102 N.C. App. 522, 528, 402 S.E.2d 862, 866 (1991) (emphasis omitted). Accordingly, “where a party is ‘surprised’ by the treatment of a Rule 12(b)(6) motion as one for summary judgment[,] it affords such a party a reasonable opportunity to oppose the motion with [the party’s] own materials made pertinent to such a motion.” Id. In the present case, however, it is undisputed by Plaintiff that: (1) lease agreements for the real property existed between Defendants and Muse; (2) Defendants were tenants; and (3) rent was being paid by Defendants to Muse and Walter Jr. Plaintiff acknowledged these facts both at the hearing on Defendants’ motion and in his brief to this Court. In order to hasten the “prompt resolution of . . . factually unfounded claim[s], we elect to consider on appeal the facts” presented in Plaintiff’s complaint, as well as the facts undisputed by Plaintiff – namely, that Defendants occupied the real property subject to lease agreements with Muse, and were paying rent consistent with those agreements – and review the trial court’s -6- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court order “in the manner and on the conditions stated in [N.C.G.S. §] 1A-1, Rule 56.” Fowler, 39 N.C. App. at 716, 251 S.E.2d at 890. Summary judgment is properly granted when “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. Gen. Stat. § 1A-1, Rule 56(c) (2015). “[I]n passing upon a motion for summary judgment . . . [the facts] must be viewed in the light most favorable to the party opposing the motion, and such party is entitled to the benefit of all inferences in [the party’s] favor which may be reasonably drawn from such material.” Whitley v. Cubberly, 24 N.C. App. 204, 206-07, 210 S.E.2d 289, 291 (1974). “When a defendant moves for summary judgment and offers evidence demonstrating that no genuine issue of material fact exists or that the plaintiff cannot make out an essential element of her claim, the plaintiff must then come forward with specific facts showing a genuine issue of material fact for trial.” Noell v. Kosanin, 119 N.C. App. 191, 196, 457 S.E.2d 742, 745 (1995) (citation omitted). This Court reviews de novo a trial court’s ruling on a motion for summary judgment. In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008). “Under a de novo review, the [C]ourt considers the matter anew and freely substitutes its own judgment for that” of the trial court. Craig v. New Hanover Cty. Bd. of Educ., 363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citation and internal quotation marks -7- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court omitted). Reviewing the trial court’s order “in the manner and on the conditions stated in [N.C.G.S. §] 1A-1, Rule 56,” Fowler, 39 N.C. App. at 716, 251 S.E.2d at 890, we consider, in turn, whether the trial court properly disposed of Plaintiff’s claims for trespass, quantum meruit, quantum valebant, implied contract, and unpaid rent. (1) Trespass to Real Property To assert a claim for trespass to real property, a plaintiff must establish three elements: (1) the plaintiff was either actually or constructively in possession of the land at the time the alleged trespass was committed; (2) the defendant made an unauthorized entry on the land; and (3) the plaintiff suffered some damage due to the unauthorized entry. Matthews v. Forrest, 235 N.C. 281, 283, 69 S.E.2d 553, 555 (1952); see also Graham v. Deutsche Bank Nat’l Trust Co., ___ N.C. App. ___, ___, 768 S.E.2d 614, 617-18 (2015). Assuming, without deciding, that Plaintiff successfully demonstrated a genuine issue of material fact as to the first and third elements of the claim, the pleadings and other materials demonstrate Plaintiff is unable to establish the second essential element of the claim of trespass. The right of a third-party lessee to enter and possess property rented from a lessor who is a tenant-in-common, without the co-tenant’s knowledge or consent, was addressed by this Court in Rogers v. Kelly, 66 N.C. App. 264, 311 S.E.2d 43 (1984). In Rogers, the plaintiff and her husband owned real property as tenants by the entirety. 66 N.C. App. at 265, 311 S.E.2d at 44. When the couple divorced, the -8- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court tenancy was converted to a tenancy in common. Id. After the divorce, the husband leased the property to the defendants, who began operating a drugstore on the premises. Id. at 266, 311 S.E.2d at 45. After discovering this arrangement, the plaintiff sued for “possession of the subject premises and for her proportionate share of the rental value of the premises.” Id. (internal quotation marks omitted). The trial court entered summary judgment in favor of the defendants, and the plaintiff appealed. Id. at 265, 311 S.E.2d at 44. On appeal, this Court noted that “no North Carolina case [is] directly on point,” and adopted the following rule: A lease by one tenant in common . . . is valid and effectual to the extent of the lessor’s interest, and entitles the lessee to occupy, use, and enjoy the premises as fully as the lessor himself might do but for the lease. The lease does not bind the interests of nonjoining owners, absent ratification or authorization by them, and in so far as it purports to bind those interests it is invalid; but, at least in most jurisdictions, it is an inaccuracy to state broadly that the lease is “invalid” as to, or is “voidable” by, the nonjoining owners, since under the doctrine of most jurisdictions they clearly are required to respect the rights vested in the lessee, and cannot exclude him from the premises during the term of the lease. Id. at 267-68, 311 S.E.2d at 46 (quoting 49 A.L.R. 2d 797, 798 (1956)). Viewing the facts in the light most favorable to Plaintiff, there is no genuine issue of material fact that would entitle him to relief on a claim for trespass. The pleadings and other materials show Plaintiff cannot prove the second essential element of the claim: an “unauthorized entry” by Defendants. It is undisputed that -9- HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court Defendants leased portions of the real property from Muse, and that Muse had an interest in the real property. Defendants did not unlawfully enter the real property, as the leases from Muse to Garcia Motorrad and Next Level were “valid and effectual to the extent of [Muse’s] interest.” Id. at 267, 311 S.E.2d at 46 (citation omitted). Defendants, therefore, were able to “occupy, use, and enjoy the premises” to the extent that Muse was able to but for the lease. Id. In arguing Defendants presence on the real property was unauthorized, Plaintiff primarily relies on this Court’s decision in LDDC, Inc. v. Pressley, 71 N.C. App. 431, 322 S.E.2d 416 (1984). We find such reliance misplaced. In LDDC, Inc., one tenant-in-common, Hubert Pressley, attempted to convey a right-of-way easement over the subject property to LDDC, Inc., without the consent of the other tenant-in-common, Alaska Pressley. 71 N.C. App at 433, 322 S.E.2d at 417. Recognizing that “one tenant in common may not bind a co-tenant by any act relating to the common property in the absence of ratification or estoppel,” this Court held that the “trial court was correct in concluding that Hubert[], as tenant in common with Alaska[], could not convey an easement for a right-of-way to [LDDC, Inc.] which would bind Alaska[], where she did not join in the conveyance.” Id. (quoting Hinson v. Shugart, 224 N.C. 207, 29 S.E. 2d 694 (1944)). In the present case, and unlike in LDDC, Inc., Muse did not attempt to convey the real property to Defendants in a manner which bound Plaintiff. Rather, she - 10 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court simply leased her interest in the real property to Defendants. Muse did not need Plaintiff’s consent to do so, and the lease agreements allowed Defendants to occupy, use, and enjoy the real property just as Muse might do, but for the lease. Rogers, 66 N.C. App. at 267-68, 311 S.E.2d at 46 (citation omitted). Accordingly, Plaintiff is unable to show an unauthorized entry by Defendants onto the real property, and is thus unable to sustain a claim of trespass against Defendants. Plaintiff’s claims for trespass against Defendants cannot withstand summary judgment, and the trial court did not err in disposing of those claims. (2) Quantum Meruit and Quantum Valebant Quantum meruit has been described by our Supreme Court as “a measure of recovery for the reasonable value of services rendered in order to prevent unjust enrichment.” Ron Medlin Constr. v. Harris, 364 N.C. 577, 580, 704 S.E.2d 486, 489 (2010). (citation omitted). To recover in quantum meruit, a plaintiff must prove three elements: “(1) services were rendered to the defendant; (2) the services were knowingly and voluntarily accepted; and (3) the services were not given gratuitously.” James River Equip., Inc. v. Tharpe’s Excavating, Inc., 179 N.C. App. 336, 346, 634 S.E.2d 548, 556 (2006) (citation omitted). Quantum valebant, a closely related claim, refers to a defendant who has become unjustly enriched from the receipt of goods, - 11 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court rather than services, from the plaintiff without compensating him or her for the value of those goods received. See Black’s Law Dictionary 1276 (8th ed. 2004).1 The pleadings and other materials make clear that Plaintiff’s claims for quantim merit and quantum valebant cannot withstand summary judgment. Plaintiff did not render any service to Defendants, nor did Defendants receive any goods from Plaintiff without compensation. Rather, Defendants separately leased Muse’s interest in the real property “without consent or ratification” by Plaintiff or the Trust. Thus, a cause of action based on the theories of quantum meriut and quantum valebant cannot not be sustained, and the trial court properly disposed of those claims. (3) Implied Contract In order to prevail on a claim for breach of contract, a party must show: “(1) existence of a valid contract; and (2) breach of the terms of that contract.” Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000) (citation omitted). Mutual assent of both parties to the terms of a contract “is essential to the formation of any contract . . . so as to establish a meeting of the minds.” Connor v. Harless, 176 N.C. App. 402, 405, 626 S.E.2d 755, 757 (2006) (citation and quotation omitted). 1 While recognized in North Carolina, our appellate courts have only mentioned quantum valebant in passing, without delineating its precise definition. E.g. Coats v. Hospital, 264 N.C. 332, 334, 141 S.E.2d 490, 492 (1965); Gaines & Co., Inc. v. Wendell Falls Residential, LLC, 212 N.C. App. 606, 612-13, 714 S.E.2d 179, 183-84 (2011). Latin for “as much as they were worth,” quantum valebant is used “as an equitable remedy to provide restitution” for the “reasonable value of goods and materials.” Black’s Law Dictionary 1276 (8th ed. 2004). - 12 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court An implied-in-fact contract is “as valid and enforceable as an express contract.” Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998) (citation omitted). The formation of an implied-in-fact contract “arises where the intent of the parties is not expressed, but an agreement in fact, creating an obligation, is implied or presumed from their acts.” Id. (citation omitted). “With regard to contracts implied in fact, however, one looks not to some express agreement, but to the actions of the parties showing an implied offer and acceptance.” Revels v. Miss Am. Org., 182 N.C. App. 334, 337, 641 S.E.2d 721, 724 (2007) (citation omitted). In the present case, there is no genuine issue of material fact that would entitle Plaintiff to relief based on a theory of an implied-in-fact contract. As Plaintiff admitted at the hearing on Defendants’ motion to dismiss, Garcia Motorrad and Next Level came into possession of the real property “without a lease, consent or ratification” by Plaintiff. Because Defendants were on the real property without Plaintiff’s permission or consent, Defendants necessarily did not have any “agreement in fact” with Plaintiff to occupy the real property that would have “creat[ed] an obligation” between them. Creech, 347 N.C. at 526, 495 S.E.2d at 911. Accordingly, Plaintiff’s claims for implied contract against Defendants cannot withstand summary judgment, and the trial court did not err in disposing of those claims. (4) Unpaid Rent - 13 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court Finally, Plaintiff argues the trial court erred in dismissing his claim for unpaid rent. We find this Court’s opinion in Rogers controlling. As discussed, Rogers involved one tenant-in-common leasing real property to the defendants, who operated a drugstore on the premises. Rogers, 66 N.C. App. at 265-66, 311 S.E.2d at 44-45. The real property was leased without the knowledge or consent of the plaintiff, the other tenant-in-common. Id. Upon becoming aware of this arrangement, the plaintiff sued for “possession of the subject premises and for her proportionate share of the rental value of the premises.” Id. at 265, 311 S.E.2d at 44. The trial court granted the defendant’s, and denied the plaintiff’s, motion for summary judgment. Id. On appeal, this Court “interpret[ed] the complaint as an action in ejectment with a claim for money damages of one-half fair rental value of the premises during the time of occupancy.” Id. at 267, 311 S.E.2d at 45 (citation omitted). Noting that the evidence showed an “actual exclusion of the plaintiff-cotenant from the premises of the drugstore building,” the Court held the defendants had “a liability to the nonjoining plaintiff-owner for use and occupation[,] which here can be satisfied by the paying of a proportional fair rental value.” Id. at 268, 311 S.E.2d at 46. This was so, the Court reasoned, because “in effect, for the term of the lease the defendants bec[ame] substantially a cotenant of the nonjoining plaintiff-owner.” Id. Accordingly, this Court held that the plaintiff was entitled to summary judgment, and remanded to decide the factual issue of “the fair rental value for [the plaintiff’s] one-half - 14 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court undivided interest” in the leased premises. Id. The Rogers Court held that the rental value in the contract between the co-tenant and the defendants “would furnish some evidence of fair rental value,” but because the plaintiff had not “ratified any of the terms of the lease, [she was] not to be bound from offering evidence to the contrary, if there be any.” Id. Consistent with Rogers, we hold the trial court erred in granting Defendants’ motion for summary judgment on Plaintiff’s claim for unpaid rent. Muse’s rental of the real property to Garcia Motorrad and Next Level made them, in effect, cotenants of the nonjoining plaintiff owner for the term of the lease. Id. at 268, 311 S.E.2d at 46. A genuine issue of material fact exists as to whether Plaintiff, as a trustee of the nonjoining owner, was actually excluded from the premises of Defendants’ respective businesses. If so, Muse’s and Defendants’ exclusion ran afoul of Rogers’ rule that a lessee “cannot exclude [a nonjoining owner] from the premises during the term of the lease,” and doing so would entitle the Trust to recover from Defendants a proportion of the fair rental value for the entire lease term. Id. B. Failure to Join a Necessary Party Plaintiff contends the trial court erred by granting Defendants’ motion to dismiss for failure to join a necessary party. Under the circumstances present in this case, we agree. A party is a “necessary party” to an action when he or she “is so vitally interested in the controversy involved in the action that a valid judgment cannot be - 15 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court rendered in the action completely and finally determining the controversy without his presence as a party.” Booker v. Everhart, 294 N.C. 146, 156, 240 S.E.2d 360, 36566 (1978) (citations omitted). “When a complete determination of the matter cannot be had without the presence of other parties, the court must cause them to be brought in.” Id. at 156, 240 S.E.2d at 366. In contrast, a “proper party” is a party “whose interest may be affected by a decree, but whose presence is not essential in order for the court to adjudicate the rights of others.” Carding Developments v. Gunter & Cooke, 12 N.C. App. 448, 452, 183 S.E.2d 834, 837 (1971) (citing Simon v. Board of Education., 258 N.C. 381, 389, 128 S.E.2d 785, 791 (1963)). Dismissal pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(7) for failure to join a necessary party “is proper only when the defect cannot be cured, and the court ordinarily should order a continuance for the absent party to be brought into the action and plead.” Howell v. Fisher, 49 N.C. App. 488, 491, 272 S.E.2d 19, 22 (1980) (citations omitted); see also Booker, 294 N.C. at 158, 240 S.E.2d at 367. In the present case, the trial court’s order dismissing Plaintiff’s complaint pursuant to Rule 12(b)(7) does not state who the necessary party is, or why the absent party could not have been brought into the action. Further, the record does not contain any evidence that the trial court granted a continuance for a necessary party to be added to the litigation. In its motion to dismiss pursuant to Rule 12(b)(7), and again in its brief to this Court, Garcia Motorrad intimated that Muse was a necessary - 16 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court party to the action. However, the trial court did not make an oral or written finding to that effect. Assuming, without deciding, that the trial court found Muse to be a necessary party, and further assuming that the trial court was correct, the trial court did not indicate why Muse could not have been joined as a party. Given the limited record on this issue, and the lack of any stated reason why a necessary party, if one exists, could not have been joined, we decline to address this issue in the first instance. On remand, the trial court should consider arguments of counsel regarding who may be a necessary party, and whether such party, if necessary, may or may not be joined as a party to this action. III. Conclusion The trial court properly granted summary judgment as to Plaintiff’s claims for trespass, quantum meruit, quantum valebant, and implied contract. However, the trial court erred in granting summary judgment on Plaintiff’s claim for unpaid rent, as a genuine issue of material fact exists as to whether Plaintiff, as trustee, was actually excluded from the premises during the term of the lease. Rogers, 66 N.C. App. at 268, 311 S.E.2d at 46. The trial court also erred in dismissing Plaintiff’s complaint for failure to join a necessary party. This case is remanded for further consideration of Defendants’ motion to dismiss for failure to join a necessary party. If the motion is denied, the trial court should conduct further proceedings, as appropriate, on Plaintiff’s claim for unpaid rent. - 17 - HENDERSON V. GARCIA MOTORRAD, LLC Opinion of the Court AFFIRMED IN PART; REVERSED IN PART, AND REMANDED. Judges TYSON and INMAN _________. Report per Rule 30(e). - 18 -

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