Lawson v. Lawson , 236 N.C. App. 576 ( 2014 )

NO. COA14-286
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
JOHNNIE LEE LAWSON and BARBARA G.
LAWSON,
Plaintiffs,
v. Person County
No. 10 CVS 828
NOEL LAWSON, HESTER LAWSON JONES,
KWAME LAWSON, CLEOTIS LAWSON, JR.
and wife, KATRINA LAWSON and PERRY
LAWSON,
Defendants.
Appeal by plaintiffs from order entered 16 July 2013 by
Judge W.O. Smith, III, in Person County Superior Court. Heard
in the Court of Appeals 26 August 2014.
Oertel, Koonts & Oertel, PLLC, by Geoffrey K. Oertel, for
plaintiff-appellants.
The Law Offices of Brian L. Crawford, P.A., by Brian L.
Crawford, for defendant-appellees.
BRYANT, Judge.
Where the trial court properly considered the evidence and
the referee’s findings of fact and conclusions of law, we affirm
the decision of the trial court to affirm the referee’s report
in its entirety.
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On 18 November 2010, plaintiffs Johnnie Lee Lawson and
Barbara G. Lawson filed a complaint against Noel Lawson, Hester
Lawson Jones, Kwame Lawson, Cleotes Lawson, Jr., and wife
Katrina Lawson, and Perry Lawson (“defendants”). Plaintiffs
brought claims for quiet title and trespass to real property
against all defendants, and a claim for destruction of trees
against defendant Perry Lawson. Plaintiffs alleged that
defendants had trespassed onto, erected buildings and fences on,
and removed trees from plaintiffs’ property “without consent or
permission.” On 18 January 2011, defendants answered and
counterclaimed for abuse of process, malicious use of process,
compensatory damages, and punitive damages.
On 23 March, plaintiffs filed a reply and motion to
dismiss defendants’ counterclaims. On 24 October, defendants
filed a motion for summary judgment. Plaintiffs then filed a
motion for reference for appointment of a referee on 28
November, which was granted by order of the trial court on 28
March 2012. The trial court entered an amended order on 24
April after it was determined that the surveyor appointed as the
referee had merged with another surveying company.
On 18 June, the referee filed a report which concluded that
the placement of the disputed property line was correct as it
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was currently designated by physical boundary markers and that
based on this determination of the property line, defendants had
not committed trespass or damage to plaintiffs’ property.
Plaintiffs timely filed a motion for exceptions to findings of
referee on 16 July. Defendants filed a motion for judgment on
the pleadings on 21 September.
On 3 October 2012, a hearing was held on plaintiffs’ motion
for exceptions to findings of referee. In an order entered 16
July 2013, the trial court upheld the findings of the referee
and concluded that the plat map generated by the referee should
be entered as the judgment and resolution for plaintiffs’
complaint. Plaintiffs appeal.
______________________________
On appeal, plaintiffs raise sixteen issues which can be
divided into two central issues: (I) whether the trial court
erred by failing to consider the evidence and give its own
opinion and conclusion as to the referee’s report; and (II)
whether the referee erred in its findings of fact and
conclusions of law.
I.
Plaintiffs argue that the trial court erred by failing to
consider the evidence and give its own opinion and conclusion as
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to the referee’s report. Specifically, plaintiffs raise three
arguments as to whether the trial court: abused its discretion
in confirming the referee’s report without independently
evaluating the evidence and giving its own opinion; erred by
failing to make specific findings of fact and conclusions of law
in confirming the referee’s findings; and erred by failing to
make specific findings of fact and conclusions of law during its
independent evaluation of the referee’s report. As these three
issues are closely related and plaintiffs cite little case law
in support of them, we address them as a single argument.
Pursuant to our North Carolina Rules of Civil Procedure,
“the court may, upon the application of any party or on its own
motion, order a reference in the following cases: . . . [w]here
the case involves a complicated question of boundary, or
requires a personal view of the premises.” N.C. Gen. Stat. §
1A-1, Rule 53(a)(2)(c) (2013). Where, as here, a party takes
exception to the referee’s report,
it is the duty of the [trial] judge to
consider the evidence and give his own
opinion and conclusion, both upon the facts
and the law. He is not permitted to do this
in a perfunctory way, but he must deliberate
and decide as in other cases — use his own
faculties in ascertaining the truth and form
his own judgment as to fact and law. This is
required not only as a check upon the
referee and a safeguard against any possible
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errors on his part, but because he cannot
review the referee's findings in any other
way.
Quate v. Caudle, 95 N.C. App. 80, 83, 381 S.E.2d 842, 844 (1989)
(citation and emphasis omitted). “After conducting this review,
the trial court may adopt, modify, or reject the referee's
report in whole or in part, remand the proceedings to the
referee, or enter judgment.” Gaynor v. Melvin, 155 N.C. App.
618, 622, 573 S.E.2d 763, 766 (2002) (citations omitted).
In reviewing the trial court's judgment
entered on the referee's report, the
findings of fact by a referee, approved by
the trial [court], are conclusive on appeal
if supported by any competent evidence.
Similarly, as the trial court has the
authority to affirm, modify, or disregard
the referee's findings and make its own
findings upon review of the parties'
exceptions to the referee's report,
different or additional findings by the
court are binding on appeal if they are
supported by competent evidence. Any
conclusions of law made by the referee,
however, are reviewed de novo by the trial
court, and the trial court's conclusions are
reviewed de novo by the appellate court.
Cleveland Constr., Inc. v. Ellis-Don Constr., Inc., 210 N.C.
App. 522, 531—32, 709 S.E.2d 512, 520 (2011) (citations and
quotation omitted).
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Plaintiffs contend the trial court erred by failing to
consider the evidence and give its own opinion and conclusion
both as to the evidence and the law. We disagree.
In his report, the referee noted that he interviewed
plaintiffs and defendants, researched the deed history of
plaintiffs’ property, and conducted fieldwork of the property.
This fieldwork included walking the property to look for
physical boundary markers, utilizing both GPS observations and
traditional survey methods, noting “numerous signs of continuous
long term possession by both the plaintiff and the
defendants[,]” and comparing the referee’s property measurements
to those recorded in deeds held by plaintiffs and defendants.
As such, it appears that the referee’s findings of fact were
based on competent evidence. Moreover, plaintiffs have failed to
provide any evidence on appeal to disprove this determination.
Although the trial court did not make its own findings of fact
in its order upholding the referee’s report, it was not
obligated to; rather, the trial court could, as it did here,
chose to affirm the referee’s report in whole. See id. As
such, the referee’s findings of fact, approved by the trial
court and supported by the evidence, are binding on appeal.
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In reviewing the referee’s conclusions of law, the trial
court was to consider these conclusions de novo. See id. The
trial court, in its order, made the following conclusion of law:
“The Court hereby orders the Report of the Referee entitled
‘Final Plat Court[-]ordered Survey for [plaintiffs] and
[defendants]’ by [the referee] dated June 14, 2012 to be entered
into the record as the judgment and resolution for this
Complaint.” As such, plaintiffs’ contention that the trial
court was required to give its own separate opinion and
conclusion as to the referee’s report is without merit.
Here, upon plaintiffs’ exceptions to the referee’s report,
the trial court conducted a hearing and evaluated the evidence.
The trial court, by ordering the referee’s report to be entered
into judgment as the resolution of plaintiffs’ complaint,
clearly signaled its opinion and conclusion that, based on the
evidence presented, the referee’s report was the appropriate
resolution of plaintiffs’ boundary dispute. Moreover, although
we cannot rely on a transcript1 to determine whether the trial
court made oral statements of opinion and conclusions of law
1
Although plaintiffs ordered a transcript of the trial court’s
hearing to be filed with this Court, a transcript could not be
prepared as the court reporter’s notes from the hearing were
deemed lost. As such, the record on appeal does not contain a
transcript of the hearing.
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during the hearing, it is well-established that “[w]here the
record is silent upon a particular point, it will be presumed
that the trial court acted correctly in performing his judicial
acts and duties.” State v. Fennell, 307 N.C. 258, 262, 297
S.E.2d 393, 396 (1982) (citations omitted). Accordingly, the
trial court did not err in affirming the referee’s report as the
judgment and resolution for plaintiffs’ complaint. Plaintiffs’
argument is overruled.
II.
Plaintiffs next argue that the referee erred in its
findings of fact and conclusions of law. Specifically,
plaintiffs raise thirteen arguments as to whether the referee
erred in its findings of fact and conclusions of law regarding
the referee’s use of physical boundary markers, signs of long-
term possession, and research into and use of deeds other than
plaintiffs’ deed. However, as plaintiffs have failed to raise
issues 4—10 in their brief, these arguments are therefore deemed
abandoned. See N.C. R. App. P. 28(b)(6) (2014) (“Issues not
presented in a party’s brief, or in support of which no reason
or argument is stated, will be taken as abandoned.”).
As to plaintiffs’ remaining issues contending the referee
erred in its findings of fact and conclusions of law, these
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issues lack merit. As discussed in Issue I, the referee’s
findings of fact are deemed binding on appeal if supported by
competent evidence and approved by the trial court. The
referee’s conclusions of law are reviewed de novo by the trial
court, and the trial court’s conclusions of law are reviewed de
novo on appeal to this Court. See Cleveland Constr., 210 N.C.
App. at 531—32, 709 S.E.2d at 520. Our review finds no error in
the conclusions reached by the referee and by the trial court.
Here, the trial court, after conducting a hearing on
plaintiffs’ exceptions to the referee’s report, affirmed the
referee’s report in its entirety and ordered the referee’s plat
map to be entered as the judgment and resolution of plaintiffs’
complaint. The record indicates that the referee’s report was
supported by competent evidence and, although no transcript of
the hearing was filed, plaintiffs have not shown that the trial
court failed to properly review the evidence and the referee’s
findings of fact and conclusions of law before entering its
order affirming and adopting the referee’s report in its
entirety. As indicated, by ordering the referee’s report
entered into judgment, the trial court indicated its conclusion
that the resolution of the boundary dispute was appropriately
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resolved by the referee. Accordingly, plaintiffs’ argument is
overruled.
Affirmed.
Chief Judge McGEE and Judge STROUD concur.