Appeal by plaintiffs from orders entered 28 June 2005 by Judge
William C. Gore and 24 August and 31 August 2005 by Judge E. Lynn
Johnson in Brunswick County Superior Court. Heard in the Court of
Appeals 23 August 2006.
Kennedy, Covington, Lobdell, Hickman, L.L.P., by Beverly A.
Carroll and Andrew M. Habenicht, for plaintiff-appellants.
Trest & Twigg, by Roy D. Trest, for defendant and third-party
plaintiff-appellees Edward M. Gore and Dinah E. Gore.
Fairley, Jess, Isenberg & Thompson, by Michael R. Isenberg,
for defendant and third-party plaintiff-appellees The Town of
No brief filed for third-party defendants.
Dudley J. Emick and Martha Emick (plaintiffs) appeal from
orders entered 28 June 2005, 24 August 2005 and 31 August 2005
granting Rosewood Investments, L.L.P.'s (third-party defendants')
motion to dismiss the amended lis pendens action on Rosewood's lots
located at Sunset Beach, North Carolina; granting Rosewood's motion
for summary judgment; and dismissing plaintiff's complaint against
Sunset Beach & Twin Lakes, Inc., Edward M. Gore, Dinah E. Gore, &
Town of Sunset Beach, Inc. (collectively defendants and third-party
plaintiffs) for lack of standing.
The Sunset Beach plan of development began in 1955. In 1965,
Sunset Beach conveyed three tracts of land to James Bowen which
conveyance showed North Shore Drive as a sixty-foot right of way.
Bowen subdivided those lots and a map was filed in 1977 in Map Book
I, page 379 (Bowen Subdivision). Several maps prepared from 1955
until 1976 indicated that roads running east to west on the island,
which included North Shore Drive, were to be sixty-feet wide. In
1976, Sunset Beach prepared a map which shows North Shore Drive to
be a thirty-foot right of way.
On 3 December 2001, plaintiffs purchased a home on lot 25,
Tract 19 at the corner of North Shore Drive and 19th Street on the
eastern end of Sunset Beach in Brunswick County, North Carolina,
Deed Book 1527, at page 1190. The map referenced in plaintiffs'
deed shows North Shore Drive to be sixty-feet wide. Beforeplaintiffs purchased their Sunset Beach home, they inquired about
the development of the strip of land that runs between North Shore
Drive and the canal, bordering the northern end of their property
and a tract of land on the eastern side of their home, referred to
as the Point (Tract 20 on Map 8, Page 7, Brunswick County
Registry). Plaintiffs were told houses could not be built on the
strip of land on the canal because it was not wide enough; North
Shore Drive had been developed as a sixty-foot right of way such
that this strip of land did not contain enough square footage
between the right of way and the canal on which to build houses.
In 2003, plaintiffs observed some land clearing on the strip of
land between North Shore Drive and the canal and brought this
action, seeking a declaratory judgment that a plan of development
existed for Sunset Beach, in particular the eastern part of the
On 26 July 2004, the trial court granted the motion filed by
defendant Sunset Beach to join as necessary parties all lot owners
with property in the Bowen Subdivision adjacent to or abutting
North Shore Drive tracts 17, 18 and 19. Rosewood Investments, LLC
(See footnote 1)
was also served to be joined as a necessary party in the litigation
since it purchased lots on the Point and Tract 20. A third-partycomplaint, incorporating the necessary parties, was filed 2 August
On 14 October 2004, plaintiffs filed an amended notice of lis
pendens to exclude certain real property across the canal from the
strip of land bordering North Shore Drive that fell outside the
scope of this litigation. On 24 November 2004, the motion for
entry of default filed by Sunset Beach was granted as to a number
of third-party defendants, including Rosewood Investments. On 10
June 2005, Rosewood Investments filed a motion to dismiss
plaintiff's amended lis pendens. On that date, Judge Gary E.
Trawick entered a consent order to set aside entry of default
against Rosewood Investments.
On 28 June 2005, Rosewood Investments' motion to dismiss the
amended lis pendens was granted by Judge William C. Gore. Further,
Judge Gore indicated plaintiffs did not have standing as they
failed to allege that they have a particular interest in the
outcome of this suit involving public matters that surpasses the
common interest of all citizens of the Town of Sunset Beach.
Rosewood Investments filed an answer to the Sunset Beach third-
party complaint and moved for summary judgment, citing plaintiffs'
lack of standing as the legal basis for their motion. On 12 August
2005, plaintiffs also moved for summary judgment. On 24 August
2005, Judge E. Lynn Johnson entered an order granting Rosewood
Investments' motion for summary judgment and dismissing plaintiffs'
complaint for lack of standing. On 31 August 2005, Judge Johnsonentered another order, granting Rosewood Investments' motion for
summary judgment. From these orders, plaintiffs appeal.
On appeal plaintiffs argue whether the trial court erred: (I)
in dismissing plaintiffs' complaint for lack of standing and
granting Rosewood Investments' motion for summary judgment; and
(II) in setting aside the entry of default and permitting Rosewood
Investments to participate in this action.
Plaintiffs argue the trial court erred in dismissing
plaintiffs' complaint for lack of standing and granting Rosewood
Investments' motion for summary judgment. We agree.
 Plaintiffs derive standing to bring this action for
declaratory judgment pursuant to N.C. Gen. Stat. § 1-254 (2005).
(See footnote 2)
To establish standing, plaintiffs must present an actual
controversy between the parties; however
[p]laintiff[s] [are] not required to allege or
prove that a traditional cause of action
exists against defendant in order to establish
an actual controversy.
However, it is a
necessary requirement of an actual controversy
that the litigation appear to be unavoidable.
The essential distinction between an action
for Declaratory Judgment and the usual action
is that no actual wrong need have been
committed or loss have occurred in order to
sustain the declaratory judgment action, but
there must be no uncertainty that the loss
will occur or that the asserted right will be
Emerald Isle v. State
, 320 N.C. 640, 646, 360 S.E.2d 756, 760
(1987) (citations omitted).
In this case, we determine that
plaintiffs have standing to seek a declaration that a plan of
development exists with North Shore Drive as a sixty-foot right of
way, according to the plat referenced in their deed.
See March v.
Town of Kill Devil Hills
, 125 N.C. App. 151, 479 S.E.2d 252 (1997)
(holding subdivision property owners had standing to seek
injunction prohibiting the town from improving unpaved road in
violation of plan of development). Further, p
entitled to take action to prevent the owner of the larger tract of
land from departing from a plan of development evidenced by a map
made at the time the property was conveyed. See Wooten v. Town of
, 127 N.C. App. 739, 493 S.E.2d 285 (1997) (abutting
landowners on a dedicated street had inherent standing to seek
injunction prohibiting town from building parking spaces on street
in violation of plan of development shown on recorded map).
Plaintiffs are property owners whose land abuts North Shore Drive.
Plaintiffs have identified the actual controversy in their
complaint and challenge defendants' development on a portion of
North Shore Drive. Specifically, plaintiffs allege in their
complaint the correct, legal and valid width of the right of way
of North Shore Drive east of Cobia Street to the eastern end ofNorth Shore Drive is sixty feet in width; that none of the
defendants ever properly withdrew dedication of North Shore Drive
in accordance with N.C.G.S. 139-96 or 160A-299; and that any
document which declares the width of North Shore Drive east of
Cobia Street to the eastern end of North Shore Drive to be any
distance other than sixty feet should be declared null and void.
The plat and the plan of development of property owners such as
plaintiffs, whose land abuts North Shore Drive,
indicate the right
of way is sixty-feet wide.
Linda Fluegel, Town Administrator,
gave deposition testimony
stating that Sunset Beach was incorporated in 1964 and roads in
existence at that time were dedicated to the town at that time.
Fluegel also testified that a valid plat, in compliance with the
town's ordinances, must have a deed reference number, certificate
of ownership and dedication and must be signed off by the Planning
Board indicating approval of the plat. The plat filed by
on 7 June 2004 (Map 30, Page 274,
indicating North Shore Drive was thirty feet wide, failed
to meet the requirements for a valid plat pursuant to the Sunset
Beach Town Ordinance. Based on plaintiff's property rights
evidenced in their deed, the sworn affidavit of plaintiff
(See footnote 3)
, and thedeposition testimony of the Town Administrator, Linda Fluegel, we
reverse the trial court's findings and conclusion that plaintiffs
lacked standing to seek this declaratory action.
 Summary judgment is proper if 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) (2005). The
evidence must be considered in a light most favorable to the
non-moving party. Summey v. Barker
, 357 N.C. 492, 496, 586 S.E.2d
247, 249 (2003). When reviewing the trial court's grant of summary
judgment, this Court's standard of review is de novo
Plaintiffs' evidence showed a chain of title going back to the
(See footnote 4)
which references a plan of development with a
sixty-foot-wide North Shore Drive. This plan of development is
memorialized in three places in the Brunswick County Registry: (a)
the 1965 map at Book 8, page 7; (b) the 1976 map at Book H, page
356; and (c) the 1977 map in Book I, at page 379. The 1977 map was
specifically referenced in plaintiffs' deed. Ward v. Sunset Beach and Twin Lakes, Inc.
, 53 N.C. App. 59,
279 S.E.2d 889 (1981), is a case which also involved the
development of Sunset Beach. In Ward
, the plaintiff had purchased
two lots in 1955 from Sunset Beach pursuant to a recorded 1955
map, specifically Lots 3 and 4 of Block 25. This is the same plat
that began the plan of development of Sunset Beach (Map Book 4, at
pages 64-65, Brunswick County Registry). From 1955 to 1967, Tubbs
Inlet engulfed a portion of the beach on the eastern end of the
island including the plaintiff's lots. Sunset Beach dredged the
waterway and later opened a smaller inlet, which changed the
configuration of the beach, including Block 25. Ward
, 53 N.C. App.
at 63, 279 S.E.2d 889 at 892. In 1976, Sunset Beach had a new map
(See footnote 5)
prepared on which Lots 3 and 4 on Block 25 (Map Book 4, pages
64-65, Brunswick County Registry), were redrawn as lots 22, 23, 24,
and 25 of Block 15R. Sunset Beach also relocated Main Street by
which the plaintiffs had access to their property. The Court
determined in Ward
that even though the property had been engulfed
by water and reclaimed by Sunset Beach, the plaintiff once again
became fee simple owner of those lots and was entitled to the
easement as it existed at the time the plaintiff first acquired the
two lots. Id.
, 53 N.C. App. at 63, 279 S.E.2d at 892. The Ward
That the grantor, by making such a conveyance
of his property, induces the purchasers to
believe that the streets and alleys, squares,courts, and parks will be kept open for their
use and benefit, and having acted upon the
faith of his implied representations, based
upon his conduct in platting the land and
selling it accordingly, he is equitably
estopped, as well in reference to the public
as to his grantees, from denying the existence
of the easement this created.
, 53 N.C. App. at 66, 279 S.E.2d at 893-94. The Court further
This principle and its rationale are equally
applicable in the case before us. It seems
clear in this case, as in most cases, that
plaintiff was induced, in part, to purchase
lots 3 and 4 because the lots were accessible
by some means other than the ocean. Once
defendant reclaimed plaintiff's land,
plaintiff once again became fee simple owner
with rights to her land, including access by
way of the easement, as it existed at the time
of the purchase. Defendant could not revoke
the easement as shown on the 1955 Map by
having a new map platted.
In the instant case, plaintiffs have provided their deed as
record evidence. Such deed falls in the chain of title that
follows maps and plats evidencing a plan of development.
Plaintiffs have also supplied maps showing the plan of development
and provided expert testimony to establish the location of North
Shore on the ground. Based on the record evidence, we reject
defendants' assertions that no genuine issues of fact exist as set
out in their arguments which include: (a) the Town withdrew North
Shore Drive by resolution; (b) Sunset Beach, Inc. withdrew North
Shore Drive from dedication in 1999; (c) defendant Town has
recognized North Shore Drive as thirty-feet wide; (d) flooding by
Tubbs Inlet since 1960 changed the island insofar as plaintiffs'chain of title is concerned; and (e) later maps show North Shore
Drive as thirty-feet wide. See Singleton v. Sunset Beach & Twin
, 147 N.C. App. 736, 556 S.E.2d 657 (2001) (summary
judgment reversed and remanded for additional findings where the
Court was unable to come to any real legal conclusions since (a)
plaintiff produced no deed showing a chain of title to the Bowen
Subdivision; (b) the parties produced no maps indicating how North
Shore Drive was in fact represented in a chain of title; and, (c)
nothing was presented showing whether alleged flooding of Sunset
Beach had affected Tracts 17-19 abutting North Shore Drive).
It is clear that the map at Book 8, page 7, shows North Shore
Drive as a dedicated street, sixty feet in width, running the
length of the eastern end of the island to Tubbs Inlet, past
plaintiffs' lot on Tract 19, as early as 1963. North Shore Drive
is the only avenue to Tracts 17-20 and has never been abandoned.
Defendants argue they withdrew North Shore Drive in 1999 by filing
a Withdrawal pursuant to N.C.G.S. ..
136-96 and 160A-299. We
reject this theory. North Carolina case law supports plaintiffs'
right to enforce the plan of development within their chain of
title. Based on the evidence viewed in the light most favorable to
plaintiffs, the trial court erred in granting Rosewood Investments'
motion for summary judgment. We therefore reverse the grant of
Rosewood Investments' motion for summary judgment because of the
existence of genuine issues of material fact, and we remand this
matter for trial.
 Plaintiffs argue the trial court erred by setting aside
the entry of default and permitting Rosewood Investments to
participate in this action. We disagree.
Pursuant to the provisions of N.C. Gen. Stat. . 1A-1, Rule
55(d), the trial court may set aside an entry of default for good
cause shown. A motion to set aside an entry of default is
addressed to the sound discretion of the trial judge and the order
of the trial court ruling on such a motion will not be disturbed on
appeal absent a showing of abuse of that discretion. Britt v.
, 46 N.C. App. 107, 108, 264 S.E.2d 395, 397
(1980); Privette v. Privette
, 30 N.C. App. 41, 44, 226 S.E.2d 188,
190 (1976); Acceptance Corp. v. Samuels
, 11 N.C. App. 504, 510-11,
181 S.E.2d 794, 798 (1971). In our appellate review, we consider
the following factors: (1) was defendant diligent in pursuit of
this matter; (2) did plaintiff suffer any harm by virtue of the
delay; and (3) would defendant suffer a grave injustice by being
unable to defend the action. Automotive Equipment Distributors,
Inc. v. Petroleum Equipment & Service, Inc.
, 87 N.C. App. 606, 608,
361 S.E.2d 895, 896-97 (1987). However, inasmuch as the law
generally disfavors default judgments, any doubt should be resolved
in favor of setting aside an entry of default so that the case may
be decided on its merits. Peebles v. Moore
, 48 N.C. App. 497,
504-05, 269 S.E.2d 694, 698 (1980) (citation omitted), modified and
, 302 N.C. 351, 275 S.E.2d 833 (1981).
On 24 November 2004, the Clerk of Superior Court signed an
entry of default against Rosewood Investments. This entry wasmade at the request of defendants and third-party plaintiffs,
Sunset Beach & Twin Lakes and Edward M. and Dinah E. Gore. On 9
June 2005, an order setting aside this entry of default was entered
by the Court.
In this case, for good cause shown, the trial court set aside
the entry of default. The third-party plaintiffs who obtained the
entry of default stipulated to the existence of good cause for
setting aside the entry. Therefore, the Court did not abuse its
discretion in finding good cause. Appellants in this case have
presented no evidence to show that the Court has abused its
discretion in making this determination:
Appellant has not favored us with the evidence
heard by the trial judge upon defendant's
motion to vacate the entry of default. Where
appellant fails to bring the evidence up for
review, we presume the trial judge acted
within his discretion on evidence showing good
cause to vacate the entry of default. In this
case Appellants have likewise failed to show
the Court what evidence the trial judge heard
to set aside the Entry of Default and it is
therefore presumed that he acted within his
Crotts v. Camel Pawn Shop, Inc.
, 16 N.C. App. 392, 394, 192 S.E.2d
55 (1972). In this case, the trial court's order setting aside the
entry of default did not create any additional issues or create
prejudice to plaintiffs.
The failure of a defendant who has been duly
served to appear and answer a complaint
seeking a declaratory judgment constitutes an
admission of every material fact pleaded which
is essential to the judgment sought, but the
court must, nevertheless, proceed to construe
such facts or instruments set out in the
complaint and enter judgment thereon; the
default caused by the defendant's failure toappear and answer does not entitle the
plaintiff to a judgment based on the pleader's
conclusions. The default admits only the
allegations of the complaint and does not
extend either expressly or by implication the
scope of the determination sought by the
plaintiff, or which could be granted by the
Baxter v. Jones
, 14 N.C. App. 296, 311, 188 S.E.2d 622, 631 (1972).
We hold the trial court did not abuse its discretion in setting
aside Rosewood Investments' entry of default judgment in order for
the case to proceed on the merits. This assignment of error is
In conclusion, we vacate the 28 June 2005 order concluding
plaintiffs lacked standing; reverse the 24 and 31 August 2005
orders granting Rosewood Investments' summary judgment and remand
for a trial on the merits; and affirm the setting aside of Rosewood
Investments' entry of default judgment.
Vacated in part; Reversed and remanded in part; and Affirmed
Judges MCGEE and ELMORE concur.