Opinion
No. COA12–1360.
2013-05-21
Stephen M. YOUNG, Plaintiff, v. Christopher M. YOUNG, Defendant.
Michael C. Eubanks, for Plaintiff. White & Dalton, by William R. White and Tony C. Dalton, and Thomas D. Roberts PLLC, by Thomas D. Roberts, for Defendant.
Appeal by Defendant from order entered 25 July 2012 by Judge Mark E. Powell in Transylvania County Superior Court. Heard in the Court of Appeals 25 March 2013. Michael C. Eubanks, for Plaintiff. White & Dalton, by William R. White and Tony C. Dalton, and Thomas D. Roberts PLLC, by Thomas D. Roberts, for Defendant.
STEPHENS, Judge.
Procedural History
In a complaint filed 29 July 2011, Plaintiff Stephen M. Young alleged adverse possession of a piece of real property in Transylvania County by constructive ouster of his brother and co-tenant, Defendant Christopher M. Young. Plaintiff sought a declaration that he is “the sole owner of said property by virtue of constructive ouster[.]”
Plaintiff's complaint for declaratory judgment alleged:
1. [Plaintiff and Defendant] are owners and co[-]tenants of a tract or parcel of land in Transylvania County, North Carolina. Said tract of land was granted to the parties by deed dated March 4, 1988[,] and filed for record ... on March 15, 1988....
2. [P]laintiff ... lived on the above property for most of the past twenty-three years, but is currently a resident of Vermont. [D]efendant ... is a sometimes resident of Transylvania County, but he has often lived in other states for long periods of time. On information and belief he is currently residing on a temporary basis with his mother at 250 Quiet Pond Road, Pisgah Forest, Transylvania County, NC 28768.
....
4. Beginning no later than July 11, 1990[,][P]laintiff, while he was a co [-]tenant of the above-described property, possessed said property exclusively and remained in exclusive possession of it for at least twenty years. At no time in the twenty year period of his exclusive possession, did [P]laintiff acknowledge the ownership of [D]efendant in said property.
5. During said period, beginning no later than July 11, 1990, [P]laintiff had exclusive possession of the property, performed all maintenance on it including reconstructing an old house on the property, paid all taxes due on said property, and rented said property from time to time to others and collected and kept the rents exclusively for himself.
6. During said period [D]efendant paid no taxes, provided no maintenance to the property and never possessed or used the property in any way.
7. At no time in this period of exclusive possession did [D]efendant demand or request possession of the land, an accounting, or a share of any rents or profits from the land.
....
9. The facts above establish that [P]laintiff has obtained ownership, possession and control of the real property described above by his exclusive, hostile, notorious and open use and possession of said property for more than twenty years. During that period, [D]efendant has made no demand or request for possession of the property and no request or demand for an accounting or share of the rents of the property....
The only response by Defendant to the complaint was a handwritten letter filed 1 September 2011. In his letter, Defendant stated that it was “composed to respond to the civil complaint” filed by Plaintiff. Defendant wrote:
When [Defendant] first discovered this property and began the process to purchase the property, calling on [Plaintiff] as a partner, seemed to be a great idea. [Defendant] had[ ] hopes of joining forces and working together to quickly do the necessary repairs and fix the house and go onto [sic] the next project.
It was a great dissappointment [sic] when [Defendant] realized this was not going to happen. It was not long after [the brothers] began [that Defendant] realized [they] were unable to cooperate with one another to complete the project and move onto [sic] the next one.
[Defendant acknowledged that they] seemed to be working up into an increasingly more unhealthy situation towards each other. [Defendant] was concerned it might get out of control and a project which [Defendant] had hoped would be very enjoyable would turn tragic.
[Defendant] decided the wisest thing would be to leave [Plaintiff] for a time with the property to see what [Plaintiff] could do and go West to [Mark's] place to assist him. Eventually [Defendant] ended up as a builder in the pacific north west [sic].
As of the last few years [Defendant realized] mom was needing help to do things around her place, so [Defendant] returned. [S]he's 86 years old.
As for the house, [Defendant] was hoping [the brothers] could come to an equitable agreement. [Defendant] purchase from [Plaintiff] or [Plaintiff] purchase from [Defendant] what ever [sic] [they] could find as a good agreement.
To let [Plaintiff] just have it [Defendant believes] would not be in [Plaintiff's] best spiritual interest. Our relationship with Christ Jesus is the most paramount issue in a mans [sic] life, and giving into [sic] [Plaintiff's] poor behavior is not character building, and will not really [sic] be good for [Plaintiff].
Plaintiff moved for summary judgment on 19 December 2011. On 3 January 2012, the trial court heard Plaintiff's motion. Although notice of the hearing was served on Defendant, he did not attend the hearing. The trial court entered summary judgment in favor of Plaintiff on each of his claims. Plaintiff was declared “to be the sole owner of [the disputed] tract of land[.]”
On 17 January 2012, Defendant filed a motion for a new trial pursuant to Rule 59 of the Rules of Civil Procedure. The trial court denied Defendant's motion by order entered 25 July 2012. From that order, Defendant appeals.
Discussion
On appeal, Defendant argues that the trial court erred in (1) denying his Rule 59 motion for a new trial and (2) granting summary judgment for Plaintiff. We affirm in part and dismiss in part.
An appellate court should not disturb a discretionary Rule 59 order unless it is reasonably convinced by the cold record that the trial judge's ruling probably amounted to a substantial miscarriage of justice. The party alleging the existence of an abuse bears that heavy burden of proof. In making our evaluation, we review the record from a subjective perspective to determine whether the judge clearly abused his discretion. During review, we accord great faith and confidence in the ability of our trial judges to make the right decision, fairly and without partiality, regarding the necessity for [a] new trial.
Burgess v. Vestal, 99 N.C.App. 545, 550, 393 S.E.2d 324, 327 (citations, quotation marks, brackets, and ellipsis omitted), disc. review denied, 327 N.C. 632, 399 S.E.2d 324 (1990). Thus, in reviewing the record, we must determine whether the judge's ruling “show[s] unfairness, partiality, [or] worked an injustice on” the moving party. Id. Only then can we decide whether the trial court's discretionary ruling “amounted to a substantial miscarriage of justice.” Id.
Rule 59(a)(7) authorizes the trial court to grant a new trial based on the insufficiency of the evidence to justify the verdict. We have previously indicated that, in this context, the term insufficiency of the evidence means that the verdict was against the greater weight of the evidence. The trial court has discretionary authority to appraise the evidence and to order a new trial whenever in his opinion the verdict is contrary to the greater weight of the credible testimony. Like any other ruling left to the discretion of a trial court, the trial court's appraisal of the evidence and its ruling on whether a new trial is warranted due to the insufficiency of evidence is not to be reviewed on appeal as presenting a question of law ...
It has been long settled in our jurisdiction that an appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates an abuse of discretion by the [trial] judge.
In re Will of Buck, 350 N.C. 621, 624–25, 516 S.E.2d 858, 860–61 (1999) (citations and quotation marks omitted; emphasis in original).
Here, Defendant contends that he is entitled to a new trial on all issues because the trial court's order granting summary judgment to Plaintiff was contrary to law. SeeN.C. Gen.Stat. § 1A–1, Rule 59(a)(7) (2011) (providing that a new trial may be granted if “the verdict is contrary to law”). However, “[i]n the absence of an abuse of discretion, a trial court's ruling on a motion for a new trial due to the insufficiency of evidence is not reversible on appeal.” Batlle v. Sabates, 198 N.C.App. 407, 423, 681 S.E.2d 788, 799 (2009) (citations and quotation marks omitted; emphasis added).
Rather than explaining how the trial court abused its discretion, Defendant merely references his argument that the court erred by granting Plaintiff summary judgment. That argument is based on Defendant's assertion that issues of material fact remain disputed regarding whether Plaintiff adversely possessed the realty at issue. For example, Defendant points to tax receipts listing both parties' names, claims no actual or constructive ouster occurred, and suggests that Defendant may have given Plaintiff permission to use the property. However, the receipts were not before the court on summary judgment. Indeed, despite notice of the hearing, Defendant chose not to appear at the hearing, submit any evidence beyond his letter, or make any legal argument. Defendant's letter does not offer any evidence that contradicts Plaintiff's allegations that he sufficiently adversely possessed the realty he originally purchased with his brother. “In North Carolina, [t]o acquire title to land by adverse possession, the claimant must show actual, open, hostile, exclusive, and continuous possession of the land claimed for the prescriptive period [of twenty years] under known and visible lines and boundaries.” Jones v. Miles, 189 N.C.App. 289, 292, 658 S .E.2d 23, 26 (2008) (citation, quotation marks, and ellipsis omitted); see alsoN.C. Gen.Stat. § 1–40 (2011) (setting forth the elements of adverse possession).
Plaintiff's verified complaint and sworn affidavit submitted along with his summary judgment motion allege: (1) “Plaintiff [lived on the property] for most of the past twenty-three years[.]” (2) “Beginning no later than July 11, 1990,” Plaintiff exclusively possessed “and remained in exclusive possession of [the property] for at least twenty years. At no time in the twenty year period of his exclusive possession, did [P]laintiff acknowledge the ownership of [D]efendant in said property.” (3) “During said period, ... [P]laintiff had exclusive possession of the property, performed all maintenance on it including reconstructing an old house on the property, paid all taxes due on said property, and rented said property from time to time to others and collected and kept the rents exclusively for himself.” (4) “During said period [D]efendant paid no taxes, provided no maintenance to the property and never possessed or used the property in any way.” (5) “At no time in this period of exclusive possession did [D]efendant demand or request possession of the land, an accounting, or a share of any rents or profits from the land.” Thus, Plaintiff alleged every element required to sustain his claim, and Defendant failed to offer any evidence in contradiction thereto. See Herbert v. Babson, 74 N.C.App. 519, 521, 328 S.E.2d 796, 798 (1985) (“If a co[-]tenant occupies the entire property for twenty years to the exclusion of a co[-]tenant it is presumed there was an ouster at the time of the entry and it is presumed the action of the occupying co[-]tenant during this period includes everything necessary to establish adverse possession.”) (citations omitted).
While the case law in North Carolina addressing adverse possession claims among co-tenants is not well established, see id. (“This rule has been criticized since the entry and possession of a tenant in common is presumed not to be adverse to the co[-]tenants. If the occupation of the premises for twenty years gives rise to a presumption, as does the rule of presumptive or constructive ouster, that during the twenty year period the possession was adverse it has been said that this presents an anomaly.”), the evidence available for review by the trial court in this case can only lead to the conclusion reached at summary judgment.
A Rule 59 motion is not intended as a second bite at the apple for a party who has, essentially, stood silent by declining to offer relevant evidence in response to a complaint and a motion for summary judgment. Defendant has failed to cite any specific abuse of discretion to support his argument that the trial court erred by denying his motion for a new trial. See In re Will of Buck, 350 N.C. at 624–25, 516 S.E.2d at 860–61. Accordingly, we cannot conclude that the trial court abused its discretion, and we affirm the trial court's order denying Defendant's Rule 59 motion.
Because our task in this case is solely to determine whether the “cold record” demonstrates that the trial court's ruling on Defendant's Rule 59 motion “probably amounted to a substantial miscarriage of justice[,]” Burgess, 99 N.C.App. at 550, 393 S.E.2d at 327 (citation and quotation marks omitted), we do not address the anomaly described in Herbert nor do we reach the merits of adverse possession or constructive ouster as presented by Plaintiff's allegations and Defendant's appellate argument.
As for Defendant's argument that the trial court erred in entering summary judgment for Plaintiff, we must dismiss this issue as not properly before us. Rule 3(d) of the Rules of Appellate Procedure requires that a “notice of appeal ... designate the judgment or order from which appeal is taken [.]” N.C.R.App. P. 3 (2012).
Proper notice of appeal requires that a party shall designate the judgment or order from which appeal is taken.... Without proper notice of appeal, this Court acquires no jurisdiction. A court may not waive the jurisdictional requirements ...., even for good cause shown under Rule 2, if it finds that they have not been met.
Notice of appeal from denial of a motion to set aside a judgment which does not also specifically appeal the underlying judgment does not properly present the underlying judgment for our review.
Von Ramm v. Von Ramm, 99 N.C.App. 153, 156, 392 S.E.2d 422, 424 (1990) (citations and quotation marks omitted; emphasis added).
On 22 August 2012, Defendant filed his “Notice of Appeal to [this Court] from the Order of Superior Court Judge, Mark E. Powell, dated July 23, 2012 and filed July 25, 2012, denying Defendant's motion for a new trial.” No notice of appeal from the order granting summary judgment on 4 January 2012 appears in the record. Accordingly, we dismiss this issue.
AFFIRMED IN PART; DISMISSED IN PART. Chief Judge MARTIN and Judge HUNTER, ROBERT C., concur.
Report per Rule 30(e).