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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
MARY SUZANNE ETTER, and
DONALD J. VOGEL and
wife, PATRICE L. VOGEL,
No. 01 SP 287
LARRY W. PIGG and GLORIA
Appeal by defendants from judgment and orders entered
10 June and 26 June 2006
by Judge James U. Downs in Henderson
County Superior Court. Heard in the Court of Appeals 28 August
Walter C. Carpenter for petitioner-plaintiff-appellees.
Larry W. Pigg and Gloria A. Vandiver, pro se, for respondent-
Larry W. Pigg and Gloria A. Vandiver (respondents-defendants)
separately appeal from judgment and orders entered 5 June, 10 June
and 26 June 2006 denying their motions: (1) to join necessary
parties (the Fosters); (2) to change the action to a deed
reformation action; (3) for a directed verdict and a judgment
notwithstanding the verdict; and (4) for a new trial. For the
reasons stated herein, we affirm the trial court.
In Etter I, this Court held the respondents' Rule 60(b) motion
to set aside the Mediated Settlement Agreement was improperlygranted and remanded the case to the trial court. See Etter v.
Pigg, 175 N.C. App. 419, 623 S.E.2d 368 (2006) (unpublished)(Etter
I). Subsequently, Mary Suzanne Etter conveyed her property
(adjacent to defendants) to Donald J. Vogel and his wife, Patrice
L. Vogel (petitioners-plaintiffs). The respective deeds call for
the center line of a creek as the dividing line between their
properties. Defendants contest the boundary as it appears in the
On 25 March 2006, Judge Phillip Ginn denied defendants'
12(b)(6) and 12(b)(7) motions; motion to re-open discovery; and
their motion for Rule 11 sanctions against petitioner's attorney,
and made the following findings:
1. This action was initially instituted on
November 1, 2001, as a petition to establish a
2. Respondents  filed a response and
counterclaim on or about the 12th day of
January 2002 [which] did not contain a Rule
12(b)6 motion nor did it contain a Rule 12(b)
3. The 12(b)6 and 12(b)7 motions of
Respondents were not filed until January and
4. As regards the Rule 12(b)7 motion, the
Court finds as a fact that the adjoining
property of the Fosters intersects the
disputed line but is not part of the disputed
boundary between Petitioner and Respondents.
5. Respondents admitted that since they did
not prevail on their 12(b)6 and 12(b)7 motions
that there was no basis for the Rule 11
6. The Court finds that there has been no
showing by Respondents of a legal
insufficiency, a factual insufficiency, or animproper purpose in the filing of any
pleadings by Petitioner or her counsel and the
Court finds that the pleadings and each of
them filed by Petitioner and her counsel are
legally sufficient, factually sufficient, and
interposed for a proper purpose.
The case proceeded to a trial on the merits. On 24 May 2006, a
jury returned a verdict in favor of plaintiffs declaring the
boundary is the middle of the branch according to the Patterson
Survey. On 5 June 2006, Judge James U. Downs entered two
subsequent orders, nunc pro tunc, denying respondents' motions to
(1) join necessary parties (the Fosters) and (2) change the action
from a special processioning proceeding to a deed reformation
action. On 10 June 2006, the trial court denied respondents'
motion for judgment notwithstanding the verdict and directed
verdict. On 26 June 2006, the trial court denied respondents'
motion for a new trial. Respondents appeal.
On appeal, respondents argue the trial court erred by: (I)
failing to join the Fosters as necessary parties; (II) denying
defendants' 12(b)(6) motion to dismiss ; (III) denying their motion
for a new trial; (IV) denying their motion to change the action
from a special processioning proceeding to a deed reformation
action; (V) denying their motion for directed verdict and judgment
notwithstanding the verdict; and (VI) denying their motion for a
new trial because the jury was not properly instructed.
Respondents argue the trial court erred by failing to join the
Fosters as necessary parties because the Fosters' adjoining
property intersects with the disputed property line and therefore
the Fosters are essential to the resolution of this matter. We
A party is a necessary party to an action when he is so
vitally interested in the controversy involved in [the] action that
a valid judgment cannot be rendered in the action completely and
finally determining the controversy without [his] presence as [a
party]. Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843 (1952);
Strickland v. Hughes, 273 N.C. 481, 160 S.E.2d 313 (1968).
The trial court's 25 March 2006 order indicated respondents'
motion to join a necessary party (the Fosters) was denied as
untimely (action began in 2001). The trial court also found that
on 12 January 2002, when respondents filed their response and
counterclaim, respondents did not file a 12(b)(7) motion to
dismiss. Notwithstanding, the record indicates the Fosters'
property is located to the north of the Etter-Vogel property as
shown on the Patterson plat and is not affected by the outcome in
this case. Furthermore, the trial court concluded the Fosters'
adjoining property intersects the disputed line but is not a part
of the disputed property line. Cf. Garrett, 236 N.C. 299, 72
S.E.2d 843 (holding personal representatives to decedents' estates
were necessary parties in determining the ownership interests of
the decedents). The Fosters are not necessary parties and thetrial court properly denied respondents' untimely motion. This
assignment of error is overruled.
II & IV
Respondents argue the trial court erred by denying their
12(b)(6) motion to dismiss. When a party files a motion to
dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), the
question for the court is whether, as a matter of law, the
allegations of the complaint, treated as true, are sufficient to
state a claim upon which relief may be granted under some legal
theory, whether properly labeled or not. Grant Constr. Co. v.
McRae, 146 N.C. App. 370, 373, 553 S.E.2d 89, 91 (2001) (quoting
Harris v. NCNB Nat'l Bank, 85 N.C. App. 669, 670-71, 355 S.E.2d
838, 840 (1987)). The court must construe the complaint liberally
and should not dismiss the complaint unless it appears beyond a
doubt that the plaintiff could not prove any set of facts to
support his claim which would entitle him to relief. Block v.
Cty. of Person, 141 N.C. App. 273, 277-78, 540 S.E.2d 415, 419
(2000). The appellate court conducts a de novo review of the
pleadings to determine their legal sufficiency and decides whether
the trial court's ruling on the motion to dismiss was erroneous.
§ 38-1. Special proceeding to establish. The
owner of land, any of whose boundary lines are
in dispute, may establish any of such lines by
special proceedings in the superior court of
the county in which the land or any part
thereof is situated.
N.C. Gen. Stat. § 38-1 (2005). A special proceeding under N.C.
Gen. Stat. § 38-1, et seq. may be instituted by an owner of land
whose boundary lines are in dispute. Such a proceeding is known asa processioning proceeding whose sole purpose is to establish the
true location of disputed property lines. Pruden v. Keemer, 262
N.C. 212, 136 S.E.2d 604 (1964).
This case was initiated on 1 November 2001 as an action to
establish a boundary line. On 12 January 2002, when respondents
filed their response and counterclaim, they did not file a 12(b)(6)
motion to dismiss. Instead, respondents filed their 12(b)(6) and
12(b)(7) motions to dismiss this action on 27 February 2006, to
test the legal sufficiency of the petition under the processioning
statute. N.C.G.S. § 38-1 (2005). Paragraphs three and four of the
3. Petitioner is the owner of that property
described in deed from [Livingston] to
Mary Suzanne Etter, dated June 8, 2000,
and recorded in Deed Book 1026 at page
641 of the Henderson County Registry
(hereinafter referred to as Etter
property), a copy of which is attached
hereto and incorporated by reference.
4. Petitioner's property is shown on that
map of survey made for Sue Etter by
Laughter, Austin & Associates, P.A.,
dated May 1, 2000 and being Job No. 00-
136, a reduced copy of which is attached
hereto as Exhibit B and incorporated
herein by reference.
The petition further alleges land owned by respondents share a
common boundary line with petitioners' property on the
northeastern boundary which call is 'up and with the center line
of said branch North 37 [degrees] 04' 05 West 54.11 feet' and
that such boundary is the true dividing line between the parties'
tracts of real property. Based on N.C. Gen. Stat. § 38-1 et seq.,we find the petition to be legally sufficient to survive a motion
Respondents also assert that the trial court improperly denied
their motion to change the action from a special processioning
proceeding to a deed reformation action. However, as indicated in
the plain language of N.C. Gen. Stat. § 38-1, petitioners have made
a legally sufficient claim under the special processioning
statutes. Accordingly, the trial court properly denied
respondents' motion to change the action from a processioning to a
deed reformation action. See Green v. Williams, 144 N.C. 60, 63-
64, 56 S.E. 549, 550-51 (1907) (either of the adjoining proprietors
as a matter of right is entitled to have the land processioned,
without the other's consent and, where there has been an appeal, to
have all the controverted matters settled by the jury under the
guidance of the court). These assignments of error are overruled.
Respondents contend the trial court erred by denying their
motion for a new trial and argue the trial court did not make
findings of fact. In addition, they argue they did not receive a
fair trial as the jury was not properly instructed. We disagree.
The decision [whether to grant a new trial] rests in the
sound discretion of the trial judge. Absent record disclosure of
abuse of discretion, the order is not subject to review on appeal.
Sizemore v. Raxter
, 58 N.C. App. 236, 237, 293 S.E.2d 294, 294
(1982) (citations and quotations omitted). The trial court, in its
26 June 2006 order, denied respondents' motion for a new trial andspecifically found that grounds for a new trial have not been
shown. On appeal, respondents do not produce facts in support of
their motion as to why a new trial is warranted. The trial court,
in its discretion, made the required finding on the record and
properly denied respondents' motion for a new trial. See Hanna v.
, 73 N.C. App. 521, 327 S.E.2d 22, cert. denied
, 313 N.C. 600,
332 S.E.2d 179 (1985) (holding order made under the discretionary
power of N.C. Gen. Stat. § 1A-1, Rule 59(a) shall stand unless the
reviewing court is reasonably convinced by the cold record that the
trial judge's ruling probably amounted to a substantial miscarriage
of justice). With respect to the allegation that respondents did
not receive a fair trial, they also argue in their brief that the
trial court did not properly instruct the jury. However, at trial,
respondents failed to request specific jury instructions and failed
to object to the instructions delivered at trial. Accordingly,
respondents have failed to properly preserve this issue for review
on appeal. N.C. R. App. P. 10(c)(4). These assignments of error
Respondents argue the trial court erred by denying their
motion for directed verdict and judgment notwithstanding the
verdict. We disagree.
When determining the correctness of the denial for directed
verdict or judgment notwithstanding the verdict, the question is
whether there is sufficient evidence to sustain a jury verdict in
the non-moving party's favor or to present a question for thejury. Davis v. Dennis Lilly Co.
, 330 N.C. 314, 323, 411 S.E.2d
133, 138 (1991) (citations omitted).
Petitioners introduced a chain of title going back more than
thirty years. Prior to petitioners' current deed, all of the deed
descriptions referenced the property as Lot 13, George Hardin
Subdivision, Addition #2. The surveyor, Donald Austin, testified
his survey fairly and accurately depicted the location on the
ground of Lot 13 of the Hardin Subdivision. In addition, in
response to respondent's question, Mr. Austin testified as follows:
Austin: It is my professional opinion that
the survey we performed in the year 2000 is a
complete survey of the area of the land that
is contained in Lot 13, as is described in
these deeds and is platted in this 1955 plat.
[Respondent]: And that is the boundary of her
Austin: As far as I'm concerned, yes. I mean
that's what she purchased, she purchased Lot
There is substantial record evidence, some of which was elicited by
respondent, that the property shown on the plat was, in fact, Lot
13 of the George Hardin Subdivision, Addition #2.
Respondents argue petitioners do not fit the description to
the land. Both parties' deeds and the recorded plat refer to the
same monument (the branch). Petitioner Etter's deed is dated 8
June 2000, and was recorded 12 June 2000. Petitioner's deed runs
to the branch and thence down and with the meanders of said branch
South 38 degrees East 56 feet. Respondents obtained title by deed
dated 15 December 1999, which was recorded 15 December 1999.
Respondents' deed also runs to the same branch. The 26th call ofthe description of tract 1 in respondents' deed runs with the
center line of said branch North 37 [degrees] 04' 05 West 54.11
feet. Since the branch is a monument called for in both deeds,
the location of the branch at the time of the deeds establishes the
monument and establishes petitioners' eastern boundary and
respondents' western boundary unless the branch had been moved.
Respondent, in her brief, indicates shortly after occupying the
property in June 2000, Etter and her agents dug up, with a backhoe,
bulldozed and otherwise altered the creek that is located between
the two parcels of land. There are no allegations that the branch
moved prior to June 2000. It is undisputed that the survey by
Donald Austin began 27 April 2000 and was completed by 8 May 2000,
prior to June 2000, when the creek was altered. The location of
the branch at the time both petitioners' and respondents' deeds
were signed and recorded is properly based on the Austin survey
done prior to the digging in the branch. On his plat, Mr.
Patterson found the line to be the same as on the Austin survey and
the jury found the true boundary line to be the same. The evidence
was sufficient to support the jury verdict. Therefore, the motions
for directed verdict and judgment notwithstanding the verdict were
properly denied. This assignment of error is overruled.
Petitioners have filed a separate motion in this Court,
pursuant to Rule 34 of the North Carolina Rules of Appellate
Procedure, seeking dismissal of this appeal and monetary damages
alleging respondents filed this appeal frivolously in that it isnot well grounded in fact or warranted by existing law. N.C. R.
App. P. 34. While we have reviewed and overruled all defendants'
assignments of error, we do not conclude this appeal is frivolous.
Therefore, we deny petitioners' motion. See Tomlinson v. Camel
City Motors, Inc.
, 101 N.C. App. 419, 422, 399 S.E.2d 147, 149
(denying Rule 34 motion for sanctions [w]hile we have determined
[the] appeal lacks substantial merit, we cannot say that it was
frivolous), aff'd in part and reversed in part
, 330 N.C. 76, 408
S.E.2d 853 (1991).
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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