Parsons v Shaki, 163 NC App 204 (03-448) 03/02/2004

Appeal by respondents from order entered 29 October 2002 by Judge Michael E. Helms in Ashe County Superior Court. Heard in the Court of Appeals 28 January 2004.

Kilby & Hurley, by John T. Kilby, for petitioners-appellees.

Sherrie R. Hodges, for respondents-appellants.

MARTIN, Judge.

Petitioners filed this special proceeding, pursuant to G.S. § 38-3, before the Clerk of Superior Court of Ashe County to determine the location of the boundary line between property owned by them and property owned by respondents. The parties agreed to the appointment of Billy W. Barr, a licensed surveyor, to survey the contentions of the parties and make a report to the Clerk. After completion of the surveyor's report and an evidentiary hearing, the Clerk entered an order finding facts and establishing the boundary line as contended by petitioners. Respondents gave notice of appeal to the superior court and the matter was heard de novo by the court sitting without a jury. By order entered 29October 2002, the superior court made findings of fact and determined that the true boundary line was in accordance with petitioners' contention. Respondents appeal.

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    By their first three arguments, respondents contend the trial court erred in allowing the court-appointed surveyor, Mr. Barr, to state an opinion as to the true location of the boundary line between the parties' properties and to state a legal conclusion supporting such opinion. Finally, they contend, there was insufficient evidence, absent that to which they object, to support the trial court's judgment.
    Pursuant to N.C. Gen. Stat. § 38-4 (2003), the trial court may appoint an independent surveyor to make a survey “in accordance with the boundaries and lines expressed in each party's titles.” By agreement, Mr. Barr was appointed to “survey the contentions of the parties and report his findings . . . .” In his report, introduced into evidence over objection of the respondents, and in his testimony, Mr. Barr stated that he had conducted a survey of the line separating the parties' properties and had used information obtained from discussions with surveyors who had conducted surveys for the parties and examinations of their maps. He determined there was an overlap of 0.021 acres. In resolving the ambiguities in the line, Mr. Barr testified that he used the surveying protocol that where there are competing calls, the ambiguities should be resolved against the grantor in the chain of title and in favor of the grantee.     Citing Combs v. Woodie, 53 N.C. App. 789, 281 S.E.2d 705 (1981), respondents argue this testimony was opinion evidence as to the location of the true line, and was inadmissible as embracing the ultimate issue in the case. We disagree; N.C. Gen. Stat. § 8C- 1, Rule 704 “abrogates the doctrine that opinion testimony should be excluded for the reason that it goes to the ultimate issue which should be decided by the trier of fact.” Green Hi-Win Farm, Inc. v. Neal, 83 N.C. App. 201, 205, 349 S.E.2d 614, 616-17 (1986), disc. review denied, 319 N.C. 104, 353 S.E.2d 109 (1987); see also Welborn v. Roberts, 83 N.C. App. 340, 341, 349 S.E.2d 886, 886 (1986).
    Nevertheless, respondents contend Mr. Barr's testimony was an inadmissible conclusion of law. Under the rules of evidence, an expert may not submit an opinion into evidence suggesting “whether legal conclusions should be drawn or whether legal standards are satisfied.” Hajmm Company v. House of Raeford Farms, Inc., 328 N.C. 578, 587, 403 S.E.2d 483, 489 (1991). Such testimony is said to invade “the province of the court to determine the applicable law,” and thus, while an expert may give an opinion as to the underlying factual premises which determine a conclusion of law, the expert may not give an opinion as to how the legal conclusion should be determined. Id. (internal quotation omitted).
    The competent evidence in the record shows the following:
        5. That the property now owned by the Petitioners' Parsons was once included in a larger tract owned by the Respondents' predecessors in title and was conveyed into the Petitioners' chain of title by the same description as is in a deed to the MethodistEpiscopal Church recorded August 31, 1885 . . . .

        6. That the Respondents' deed does not actually contain a call for the contested line. The Respondents' call . . . originated from a new survey of the property done for the Respondents by surveyor Culbreth in 1999 . . . .
            . . .

        9. That the call for [petitioners'] north bearing western line agrees more favorably with the survey performed by Culbreth for the Respondents; who treated that call as being directly north; but the northern line of [petitioners'] deed, which calls for 9 poles (148.5 feet) more favorably agrees with the survey performed by Herman for the [petitioners] . . . . If in fact the [petitioners'] north line is 9 poles as the deed calls for it would not be possible for the [petitioners'] western line to run directly north as the Respondents contend.

        10. A plat done by Thomas Herman for [petitioners] was introduced, which plat showed that at the time Herman did his survey he found an existing iron at a point 23.65 feet south of the Petitioners contended northwest corner. The Court takes special notice that this existing iron would be almost exactly 7 poles from the southeast corner, which is the distance of that line called for in the original deed.

        11. The contentions of the parties are both competing and ambiguous. In fact the Petitioners' deed is ambiguous as to the length of the northern line and the bearing of the western line. This ambiguity in the Petitioners' deed was caused by a Grantor who is common to both chains of title. When such ambiguity arises it is surveying protocol as well as applicable law that such ambiguities be resolved against the Grantor causing the ambiguity and their successors in title. . . .

From these findings, it is clear that the trial court did not admit Mr. Barr's statement as a conclusion of law, but rather as anexplanation of the surveying protocol he employed in rendering his report.
    Moreover, even if Mr. Barr's explanation of the surveying protocol he utilized was improperly admitted, it is well settled that “in a trial before the judge without a jury, the ordinary rules as to the competency of evidence which are applicable in a jury trial are to some extent relaxed since the judge, being knowledgeable of the law, is able to eliminate incompetent and immaterial testimony.” Vail v. Vermont Mut. Fire Ins. Co., 14 N.C. App. 726, 729, 189 S.E.2d 527, 529 (1972). It is presumed that trial judges disregard such incompetent evidence when making their final determinations of fact and law in a case unless it affirmatively appears that the judge was influenced by the evidence. State v. Covington, 138 N.C. App. 688, 692, 532 S.E.2d 221, 223, cert. denied, 352 N.C. 678, 545 S.E.2d 432 (2000).
    Finally, after reviewing the evidence, we believe the trial court's findings of fact are fully supported by competent evidence and such findings support its conclusion that petitioners carried their burden of proving the location of the boundary line. Respondents' first three assignments of error are overruled.
    In a related assignment of error, respondents argue there is not competent evidence to support the trial court's Finding of Fact #10, that petitioners' surveyor, Thomas Herman, found an iron at a point 23.65 feet south of the petitioners' contended northwest corner and that such iron would be “almost exactly 7 poles from the southeast corner, which is the distance of that line called for inthe original deed.” Surveyor Barr did not find this iron when he conducted his survey, nor is there any evidence in the record as to who placed the iron.
    “The trial court's findings of fact have the force and effect of a verdict by jury and are conclusive on appeal if there is evidence to support them, even though evidence might sustain findings to the contrary.” Carson v. Reid, 76 N.C. App. 321, 323, 332 S.E.2d 497, 499 (1985), aff'd, 316 N.C. 189, 340 S.E.2d 109 (1986)(internal quotation omitted). The record contains a map drawn by petitioners' surveyor, Thomas Herman, showing the existence of the iron stake, a map drawn by respondent's surveyor that mirrors the parameters of the map drawn by petitioners' surveyor with the exception of the disputed line, and a copy of the original deed to petitioners which indicates a southeast corner that would approximately concur with the location of the alleged iron stake. While this evidence is not uncontroverted, it is sufficient to support the trial court's Finding of Fact #10. This assignment of error is also overruled.
    In their final assignment of error, respondents argue that the trial court erred when it failed to order the surveyor, Mr. Barr, to run and mark the lines as determined in the judgment, and to submit a map in accordance with his markings to the court for filing with the judgment. We agree.
    N.C. Gen. Stat. § 38-3(c) (2003) states as follows:
        When final judgment is given in the proceeding the court shall issue an order to the surveyor to run and mark the line or lines as determined in the judgment. The surveyor shallmake report including a map of the line as determined, which shall be filed with the judgment roll in the cause and entered with the judgment on the special proceedings docket.

While such an error is not fatal to the effectiveness or the finality of the judgment, we must remand this case to the trial court for compliance with G.S. § 38-3(c) by ordering Mr. Barr to run and mark the line as determined in the judgment and to submit a map of the line as marked to the court which shall be filed with the judgment roll in the cause. Harrill v. Taylor, 247 N.C. 748, 750, 102 S.E.2d 223, 224 (1958); Simpson v. Lee, 26 N.C. App. 712, 715-16, 217 S.E.2d 80, 82 (1975).
    Affirmed; remanded for compliance with G.S. § 38-3(c).
    Judges STEELMAN and GEER concur.
    Report per Rule 30(e).

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