Opinion
No. COA10-507
Filed 1 March 2011 This case not for publication
Appeal by Defendants from orders entered 26 November 2008 and 28 July 2009 and judgment entered 26 May 2009 and by Judge James U. Downs in Graham County Superior Court. Heard in the Court of Appeals 2 November 2010.
Coward, Hicks Siler, P.A., by Monty C. Beck and Orville D. Coward, Jr., for Plaintiff-Appellees. Melrose, Seago Lay, P.A., by Randal Seago, for Defendant-Appellants.
Graham County No. 06 CVS 26.
Greun Madinn, Inc., Paul R. Fransella, Noel V. Fransella, and Barbara Jones Garland (Defendants) appeal from judgment entered on a jury verdict finding that Defendants had not extinguished by adverse possession the easement granted to Phillips and Jordan Investment Corporation, Carolyn Lloyd Coward, Pricella Lloyd Mowery, and Benita Ann Lloyd (Plaintiffs). Defendants also appeal from orders entered denying their motions for judgment notwithstanding the verdict or, in the alternative, for a new trial and for a discretionary change of venue on the ground that a fair and impartial trial could not be obtained in Graham County. For the reasons stated below, we affirm.
Plaintiffs and Defendant own adjoining parcels of real property in Graham County, North Carolina. By agreement dated 31 March 1976, Defendants granted Plaintiffs an express easement across Defendants' property. The evidence was uncontroverted that Defendants built a dam and pond that blocked the easement but that construction of the dam did not begin prior to 13 March 1986. To prevail on the adverse possession claim, Defendants needed to show adverse possession of the property covered by the easement for the length of the statutory period, which in North Carolina is twenty (20) years. Because construction of the dam began less than twenty years prior to the commencement of this action, the issue at trial was whether Defendants' use of the land in question constituted adverse possession sufficient to satisfy the statutory period prior to 13 March 1986.
On 21 February 2006, Plaintiffs filed a Complaint and Notice of Lis Pendens in Graham County Superior Court, seeking to have their title quieted to an easement and right of way for a roadway crossing and encumbering Defendants' lands. Defendant filed a counterclaim alleging that it had extinguished Plaintiffs' easement and right of way through adverse possession. Both parties filed motions for summary judgment. On 24 May 2007, summary judgment was granted in favor of Plaintiffs.
On 13 June 2007, Defendant appealed that order to this Court. In an opinion dated 15 April 2008, we affirmed the order granting summary judgment in part and reversed in part, remanding to the superior court for trial on the issue of whether Defendants extinguished the easement by adverse possession for a period in excess of twenty years. See Phillips Jordan Inv. Corp. v. Greun Madainn, Inc., No. COA07-1105, 2008 WL 1723436 (N.C. Ct. App. 15 April 2008) (unpublished).
The case was heard in Graham County Superior Court in May 2009. The jury returned a verdict finding that Defendants had not extinguished Plaintiffs' easement by adverse possession, and the trial court entered judgment thereon enjoining Defendants from flooding, blocking, or otherwise obstructing Plaintiffs' easement. From this judgment, Defendants now appeal.
MOTION FOR DIRECTED VERDICT
Defendants argue that the trial court erred in denying their motion for a directed verdict made at the close of all the evidence. We disagree.
"A motion for directed verdict under Rule 50 of the North Carolina Rules of Civil Procedure tests the legal sufficiency of the evidence, considered in the light most favorable to the nonmovant, to take the case to the jury." Northern Nat'l Life Ins. v. Lacy J. Miller Machine Co., 311 N.C. 62, 69, 316 S.E.2d 256, 261 (1984) (citing Kelly v. International Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971)). Upon review of such a motion, "the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor." Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973) (citations omitted).
A motion for directed verdict should only be granted, "when the evidence is insufficient to support a verdict in the nonmovant's favor. . . ." Snow v. Power Co., 297 N.C. 591, 596, 256 S.E.2d 227, 232 (1979). "A verdict may never be directed when there is conflicting evidence on contested issues of fact." Northern Nat'l Life, 311 N.C. at 69, 316 S.E.2d at 261 (citing Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971)).
In the case sub judice, the motion for directed verdict was properly denied because there was conflicting evidence regarding disputed facts. The recognized elements of adverse possession are as follows:
There must be an actual possession of the real property claimed; the possession must be hostile to the true owner; the claimant's possession must be exclusive; the possession must be open and notorious; the possession must be continuous and uninterrupted for the statutory period; and the possession must be with an intent to claim title to the land occupied.
Mizzell v. Ewell, 27 N.C. App. 507, 510, 219 S.E.2d 513, 5145 (1975) (quoting Webster, Real Estate Law in North Carolina § 258, p. 319). While it is uncontroverted that Defendants satisfied all the requisite elements of adverse possession beginning with the construction of the dam in 1986, that construction began less than twenty years prior to the commencement of this action. Thus, we must consider whether Defendants satisfied the elements for the remaining portion of the statutory period.
Defendants constructed a gate, comprised of two telephone poles connected by a cable or chain, which blocked the right of way easement beginning shortly after the property was purchased in 1976. Defendants argue this gate constitutes use of the land that was adverse, open and notorious, exclusive, and constructed with intent to bar third parties from the land in question. In contrast, Plaintiffs presented five witnesses who testified either that they had never seen a chain or cable blocking the right of way, or that the chain or cable was up on some occasions but not continuously. These conflicting versions of events constitute disputed issues of material fact. The jury is properly tasked with resolution of this conflict. Accordingly, the motion for directed verdict was properly denied.
MOTION FOR JUDGEMENT NOTWITHSTANDING THE VERDICT
Defendants next allege that the trial court erred when denying their motion for judgment notwithstanding the verdict. We disagree.
It is well-established that a motion for judgment notwithstanding the verdict is to be cautiously and sparingly granted. See, e.g., Finch v. City of Durham, 325 N.C. 352, 371, 384 S.E.2d 8, 19 (1989); Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 338 (1985). Our Supreme Court has summarized the standard of review for a judgment notwithstanding the verdict as follows:
A motion for judgment notwithstanding the verdict is technically a renewal of a motion for a directed verdict. It is a motion that judgment be entered in accordance with the movant's earlier motion for directed verdict, notwithstanding the contrary verdict actually rendered by the jury. The test for determining the sufficiency of the evidence when ruling on a motion for judgment notwithstanding the verdict is the same as that applied when ruling on a motion for directed verdict.
Northern Nat'l Life, 311 N.C. at 69, 316 S.E.2d at 261.
Accordingly, our conclusion regarding the denial of the motion for directed verdict informs our discussion here. As it was not in error to deny Defendants' motion for directed verdict, neither was it in error to deny the motion for judgment notwithstanding the verdict.
MOTION FOR A NEW TRIAL
Defendants further contend that the trial court erred in denying their motion for a new trial. We disagree.
Defendants argue that the evidence was insufficient to support the verdict, and accordingly a new trial should have been granted pursuant to Rule 59(a)(7) of our Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1, Rule 59(a)(7) (2009) (providing that the trial judge may grant a new trial if there is insufficient evidence to support the verdict or if the verdict is contrary to law). Our Supreme Court has "long recognized the importance of deferring to the trial court's discretionary rulings regarding the necessity for a new trial[.]" In re Buck, 350 N.C. 621, 625, 516 S.E.2d 858, 861 (1999). Accordingly, "a trial judge's discretionary order pursuant to G.S. 1A-1, Rule 59 for or against a new trial upon any ground may be reserved on appeal only in those exceptional cases where an abuse of discretion is clearly shown." Worthington v. Bynum, 305 N.C. 478, 484, 290 S.E.2d 599, 603 (1982).
The instant case is not such an exceptional one. A review of the record in the present case shows that there was sufficient evidence on the material issues to support a finding for the Plaintiffs. Thus, the trial court was well within its discretion to deny Defendants' motion for a new trial under Rule 59(a)(7). Defendants argument is overruled.
MOTION TO CHANGE VENUE
Defendants last argue that the trial court erred by denying their motion to change venue under N.C. Gen. Stat. § 1-84. Again, we disagree.
N.C. Gen. Stat. § 1-84 governs removal of an action to a different venue:
In all civil actions in the superior and district courts, when it is suggested on oath or affirmation on behalf of the plaintiff or defendant, that there are probable grounds to believe that a fair and impartial trial cannot be obtained in the county in which the action is pending, the judge may order a copy of the record of the action removed for trial to any adjacent county, if he is of the opinion that a fair trial cannot be had in said county, after hearing all the testimony offered on either side by oral evidence or affidavits.
N.C. Gen. Stat. § 1-84 (2009). "A ruling on a motion for change of venue is within the sound discretion of the trial judge and is not subject to reversal absent a manifest abuse of discretion." Holland v. Gryder, 54 N.C. App. 490, 491, 283 S.E.2d 792, 793 (1981) (citation omitted).
Defendants contend that the evidence presented to the trial court shows that failure to grant a change of venue denied Defendants a fair and impartial trial. This contention is based on the fact that Plaintiff Phillips and Jordan Investment Corporation has a name very similar to Phillips and Jordan, Inc., the latter being a large corporation and a major employer in Graham County. The only evidence Defendants produced to establish probable grounds that a fair and impartial trial was impossible in Graham County consisted of statistics about the economic state of Graham County and news about Phillips and Jordan, Inc. The trial court did not abuse its discretion in finding that the offered evidence did not establish that Defendants could not get a fair trial in Graham County and thus denying the motion for a change of venue. Defendants' argument.
For the foregoing reasons, the order of the trial court is affirmed.
Affirmed.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).