An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced
NORTH CAROLINA COURT OF APPEALS
Filed: 20 December 2005
STEVE FRANKLIN SMITH,
No. 02 CVS 173<
MARTHA J. COON,
AVERY D. ILES,
BRIAN M. BOTHE and wife,
Appeal by plaintiff from judgment entered 31 March 2004 by
Judge Zoro Guice, Jr., in Macon County Superior Court. Heard in
the Court of Appeals 16 November 2005.
Bradley S. Tisdale, for plaintiff appellant.
Law Office of Russell R. Bowling, by Russell R. Bowling; and
Stack & Associates, P.C., by Robert B. Jackson, IV, and Lisa
B. Perlstein, for defendant appellees.
Plaintiff (Mr. Smith) appeals from a directed verdict finding
insufficient evidence to support Mr. Smith's claims or to justify
a verdict in Mr. Smith's favor and a directed verdict on Ms. Coon,
Mr. Iles and Mr. and Mrs. Bothe (defendants), counterclaims finding
good title in defendants and declaring Mr. Smith's title null and
void. We affirm.
Mr. Smith filed a complaint in Macon County Superior Court on
8 April 2002 alleging that he was the owner in fee simple of a
tract of land located in Macon County, that defendants held anadverse claim and further that the adverse claim be removed and Mr.
Smith declared the owner in fee simple. Defendants filed an answer
and counterclaim denying Mr. Smith's title claim to the property,
claiming superior title in the property and asking the court to
cancel Mr. Smith's deeds and declare his title null and void. Mr.
Smith presented numerous deeds at trial in an attempt to establish
chain of title to the disputed property. Mr. Smith also presented
evidence of a purported boundary dispute regarding the property in
question. At the close of Mr. Smith's evidence, defendants moved
for a directed verdict contending that Mr. Smith failed to submit
any legally competent evidence as to title to the property in
dispute regardless of where the boundary is. At this point, Mr.
Smith attempted to assert that he was claiming title by adverse
possession, which was not pled at trial. The court granted the
motion for directed verdict as to Mr. Smith's claims concluding
that Mr. Smith had not obtained title by express grant nor by
adverse possession to the property in question.
Defendants then proceeded to prove superior title in the
property in question by offering into evidence several deeds
showing their chain of title to the property along with the
affidavit of Walter Robilard. After offering these exhibits and
affidavit, defendants rested. The trial court then entered an
order granting a directed verdict in favor of defendants on their
counterclaims, concluding that the deeds offered by defendants
clearly established, as a matter of law, good title in defendants,
to the property described in defendants' deeds and declaring Mr.Smith's deeds null and void and cancelled as of record to the
extent they described property in defendants' deeds.
Plaintiff now appeals.
Mr. Smith asserts three assignments of error on appeal. The
first assignment of error is that the trial court erred in granting
defendants' motion for directed verdict on Mr. Smith's claims where
there was sufficient evidence to show that Mr. Smith had a direct
and connected chain of title to the property in question. The
second is that the trial court erred in granting defendants' motion
for directed verdict on Mr. Smith's claims where there was
sufficient evidence that Mr. Smith's title was superior to
defendants'. However, none of these assignments of error are argued
on appeal. Instead, Mr. Smith argues on appeal that the trial court
should have submitted to the jury the question of where the
boundary line on the property was located.
Rule 28(a) of the North Carolina Rules of Appellate Procedure
requires assignments of error be presented and argued in the brief
in order to obtain appellate review. Love v. Pressley, 34 N.C. App.
503, 514, 239 S.E.2d 574, 581 (1977), cert. denied, 294 N.C. 441,
241 S.E.2d 843-44 (1978). Where the assignments of error were not
argued on appeal, pursuant to N.C.R. App. P. 28(b)(6) (2004), they
are deemed abandoned.
Mr. Smith further argues that the trial court erred in
granting defendants' motion for directed verdict on defendants'
counterclaims contending that there was insufficient evidence to
make such a finding. We disagree.
In Mr. Smith's brief on appeal, he argues the theory of
adverse possession. However, at the trial level, Mr. Smith
presented numerous deeds which he purported established a direct,
connected, and documented chain of title in himself. Moreover, in
response to this argument and in support of their motion for
directed verdict, defendants presented numerous deeds showing that
instead superior title rested with them. Adverse possession was not
pled by Mr. Smith, no evidence was presented on the issue of
adverse possession, and the theory was not argued at the trial
level. Mr. Smith made a feckless attempt to state that he was
proceeding under the theory of adverse possession when he realized
during the motion for directed verdict that the judge believed that
defendants had a superior chain of title. This Court has repeatedly
stated that a party cannot swap horses between courts in order to
obtain a better mount on appeal. King v. Owen, 166 N.C. App. 246,
250, 601 S.E.2d 326, 328 (2004).
Moreover, there was an abundance of evidence represented by
deeds showing that defendants had a direct and connected chain of
title superior to any claim by Mr. Smith. Therefore, this
assignment of error is overruled. Accordingly, we find that no valid arguments have been
presented on appeal which establish grounds to reverse the decision
of the lower court, and therefore we affirm.
Judge HUNTER concurs in result only.
Judge GEER concurs.
Report per Rule 30(e).
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