Lawrence v. Lawrence ( 2020 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-668
Filed: 21 January 2020
Franklin County, No. 18 SP 185
LOUISE LAWRENCE, Petitioner,
v.
CHARLES LAWRENCE, Respondent.
Appeal by respondent from order entered 24 May 2019 by Judge Josephine
Kerr Davis in Franklin County Superior Court. Heard in the Court of Appeals 8
January 2020.
McFarlane Law Office, P.A., by Steven H. McFarlane, for petitioner-appellee.
Tickle Law Office, PLLC, by Lawrence Edward Tickle, Jr., for respondent-
appellant.
TYSON, Judge.
Charles Lawrence (“Respondent”) appeals from an order entered 24 May 2019
granting Louise Lawrence’s (“Petitioner”) motion for summary judgment and denying
his motion to dismiss and motion for summary judgment. We affirm the trial court’s
judgment.
I. Background
Petitioner and Charles D. Lawrence (“Lawrence”) were married in Beacon,
New York on 20 December 2000. Their union produced three children: Lawanna,
LAWRENCE V. LAWRENCE
Opinion of the Court
Kalonji, and Respondent. Lawrence was found dead on 12 May 2006. Lawrence died
intestate. The death certificate identified Lawrence as “married” and listed
Petitioner as his surviving spouse.
Lawrence owned real property (“the Property”) located in Franklin County.
Following his death, Lawanna and Kalonji Lawrence conveyed their respective
interests in the Property to Petitioner via quitclaim deed on 21 January 2008. Other
than the mortgagee, Petitioner and Respondent are the only individuals with an
ownership interest in the Property.
Petitioner initially filed a petition to partition the Property on 15 August 2018.
Respondent did not answer or appear before the clerk of superior court. The clerk
entered the order to sell for partition and notice of sale of real property on 5
September 2018. The property was offered for public sale on 26 September 2018, and
the highest bid was $20,000. An upset bid for $30,000 was entered on 27 September
2018.
Respondent filed a motion to set aside the order to sell on 28 September 2018,
alleging errors in listing the interests of the parties. The parties agreed to a consent
order, which vacated the order to sell and was filed on 4 October 2018.
Petitioner filed an amended petition to sell for partition against Respondent
on 28 November 2018. Petitioner sought not only partition by sale but also
-2-
LAWRENCE V. LAWRENCE
Opinion of the Court
reimbursement of expenses from Respondent for her paying the ad valorem property
taxes and making mortgage payments on the Property.
The court ultimately approved and confirmed a final upset bid of $75,477.15
for the Property on 4 April 2019. Petitioner moved for summary judgment on the
issues of ownership interests and reimbursement. Respondent moved for summary
judgment on these same issues on 22 April 2019.
The trial court ruled in favor of Petitioner, as communicated to the parties via
email on 15 May 2019, and requested her counsel draft a proposed order to that effect.
Petitioner’s counsel sent a proposed order to Respondent’s counsel that afternoon.
Respondent’s counsel confirmed the draft order reflected the trial court’s ruling. The
trial court entered the order granting Petitioner’s motion for summary judgment and
denying Respondent’s motions to dismiss and for summary judgment on 24 May 2019.
Respondent filed his notice of appeal on 6 June 2019.
II. Jurisdiction
Respondent appeals the trial court’s order as of right pursuant to N.C. Gen.
Stat. § 7A-27(b)(1) (2019).
III. Issues
Respondent argues: (1) Petitioner’s action should have been time-barred by a
three-year statute of limitations; (2) summary judgment was inappropriate because
-3-
LAWRENCE V. LAWRENCE
Opinion of the Court
genuine issues of material fact exist; and, (3) Petitioner should be barred from
recovering any reimbursement under the doctrine of laches.
IV. Statute of Limitations
Respondent argues the trial court erred by determining, as a matter of law,
that the ten-year statute of limitations under N.C. Gen. Stat. § 1-56 (2019) applies to
this case, rather than barring Petitioner’s reimbursement action under the three-year
statute of limitations of N.C. Gen. Stat. § 1-52(1) (2019).
A. Standard of Review
The issue of which is the applicable statute of limitations is a question of law.
See Goetz v. N.C. Dep’t of Health & Human Servs., 203 N.C. App. 421, 425, 692 S.E.2d
395, 398 (2010). “Alleged errors of law and questions of statutory interpretation are
reviewed de novo.” Id. (citation omitted).
B. Analysis
N.C. Gen. Stat. § 1-52(1) provides a three-year statute of limitations to an
action upon any “obligation or liability arising out of a contract, express or implied.”
N.C. Gen. Stat. § 1-52(1). N.C. Gen. Stat. § 1-56 provides a ten-year statute of
limitations to any action “not otherwise limited” by our General Statutes. N.C. Gen.
Stat. § 1-56.
“When determining the applicable statute of limitations, we are guided by the
principle that the statute of limitations is not determined by the remedy sought, but
-4-
LAWRENCE V. LAWRENCE
Opinion of the Court
by the substantive right asserted by plaintiffs.” Martin Marietta Materials, Inc. v.
Bondhu, LLC, 241 N.C. App. 81, 84, 772 S.E.2d 143, 146 (2015) (citation omitted). In
Martin Marietta, one co-tenant of real property located in Virginia sued the other for
reimbursement of ad valorem property taxes it had paid on the other’s behalf. Id. at
82, 772 S.E.2d at 144.
This Court interpreted the plaintiff’s claim for relief as “setting forth either of
two distinct, legally cognizable claims under Virginia law: (1) a claim for contribution;
or (2) a claim for an accounting in equity.” Id. at 87, 772 S.E.2d at 148.
While Plaintiff would be entitled under either legal theory
to reimbursement from Defendant for its share of the
property taxes, a contribution claim would be governed by
the three-year statute of limitations contained in N.C. Gen.
Stat. § 1-52(1) because the substantive right underlying
such a claim is derived from an implied contract whereas a
claim for equitable accounting — grounded in equity and
arising from a trust relationship — would be subject to the
ten-year limitations period set out in N.C. Gen. Stat. § 1-
56.
Id.Respondent cites Martin Marietta to argue the statute of limitations applicable
to a reimbursement action depends upon the type and legal source of the relationship
between the co-tenants. Respondent argues that claims of reimbursements among
co-tenants arising from quasi-contract are subject to the three-year statute of
limitations of § 1-52(1), while claims for reimbursements among co-tenants arising
from a trust or fiduciary relationship are subject to the ten-year statute of limitations
-5-
LAWRENCE V. LAWRENCE
Opinion of the Court
of § 1-56. Respondent argues § 1-56 does not apply to the case at bar because he and
Petitioner do not share a fiduciary relationship. This argument overstates this
Court’s opinion in Martin Marietta.
Applying “the principle that the statute of limitations is not determined by the
remedy sought, but by the substantive right asserted by plaintiffs,” id. at 84, 772
S.E.2d at 146, the trial court correctly determined the ten-year period in § 1-56 to be
the applicable statute of limitations in this case. In her Amended Petition, Petitioner
alleged:
Respondent has failed to contribute any sums toward the
ad valorem property taxes or mortgage payments due on
the property, and Petitioner is entitled to an equitable
adjustment of Petitioner’s and Respondent’s share of the
net proceeds of the sale of the subject property
corresponding to the amount Respondent should have
contributed based on Respondent’s interest in the subject
property.
(emphasis supplied).
Petitioner clearly asserted a substantive right of reimbursement based upon
equity from the allocation of the proceeds of the partition sale. “Petitions for partition
are equitable in their nature . . . . The rule is that in a suit for partition a court of
equity has power to adjust all equities between the parties with respect to the
property to be partitioned.” Henson v. Henson, 236 N.C. 429, 430, 72 S.E.2d 873, 873-
74 (1952) (citations omitted). Petitioner’s action arises in equity and not from a
-6-
LAWRENCE V. LAWRENCE
Opinion of the Court
contract, express or implied. The trial court did not err in concluding the ten-year
statute of limitations applied in this case. Respondent’s argument is overruled.
V. Summary Judgment
A. Standard of Review
“When considering a motion for summary judgment, the trial judge must view
the presented evidence in a light most favorable to the nonmoving party.” In re Will
of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted). “Our
standard of review of an appeal from summary judgment is de novo; such judgment
is appropriate only when the record shows 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.” Id.(citation and internal quotation marks omitted).
B. Analysis
Respondent argues the trial court erred in granting Petitioner’s motion for
summary judgment and asserts a genuine issue of material fact exists of whether
Petitioner was married to Lawrence at the time of his death.
“There is no presumption that persons are married. A person claiming
property of a deceased person by reason of marriage to deceased has the burden of
proof of the marriage, and the personal representative, lawful heirs or devisees of
deceased do not have the burden of proving non-marriage.” Overton v. Overton, 260
N.C. 139, 144, 132 S.E.2d 349, 353 (1963) (citations omitted).
-7-
LAWRENCE V. LAWRENCE
Opinion of the Court
If a ceremonial marriage is in fact established by evidence
or admission it is presumed to be regular and valid, and
the burden of showing that it was an invalid marriage rests
on the party asserting its invalidity. It is presumed that a
marriage entered into in another State is valid under the
laws of that State in the absence of contrary evidence, and
the party attacking the validity of a foreign marriage has
the burden of proof.
Id. at 143-44, 132 S.E.2d at 352 (citations omitted).
Petitioner asserts she survived Lawrence as his wife in her amended petition.
To corroborate her assertion, she proffered a copy of her New York state license and
certificate of her marriage to Lawrence. See Witty v. Barham, 147 N.C. 479, 481, 61
S.E. 372, 373 (1908) (a copy of a license and certificate of marriage is competent
evidence to corroborate a witness’ assertion of marriage). She further proffered copies
of the application for letters of administration of Lawrence’s estate, in which she is
listed as his wife; and also Lawrence’s death certificate, in which he is listed as
“Married” and Petitioner is listed as his surviving spouse. Petitioner established her
marriage to Lawrence by competent and substantial evidence, giving Respondent the
burden of proof to show that marriage was invalid or had been terminated prior to
Lawrence’s death. See Overton at 144, 132 S.E.2d at 352.
Respondent asserts in his brief in support of his motion for summary judgment
and also his affidavit opposing Petitioner’s motion for summary judgment that he
“was informed by his mother and father that his parents were in fact divorced.” No
judgment or certificate of divorce is attached to his motion or affidavit.
-8-
LAWRENCE V. LAWRENCE
Opinion of the Court
In light of the unrebutted presumption arising from the New York certificate
of marriage and Petitioner’s other supporting documentary evidence, Respondent’s
“conclusory statement without any supporting facts is insufficient to create a genuine
issue of material fact.” United Cmty. Bank v. Wolfe, 369 N.C. 555, 559-60, 799 S.E.2d
269, 272 (2017).
“It is well settled that a [party] must offer some factual evidence to show that
his or her theory is more than mere speculation.” Peerless Ins. Co. v. Genelect Servs.,
Inc., 187 N.C. App. 124, 127, 651 S.E.2d 896, 897 (2007), aff’d, 362 N.C. 282, 658
S.E.2d 657 (2008). Respondent offers no factual evidence beyond the “conclusory
statement” in his own affidavit.
The supporting assertions Respondent makes are: (1) that Petitioner “never
states in her petition that she was married to [Lawrence] at the time of his death”;
and, (2) that the letters of administration she proffered, which state Lawrence “was
survived by his wife, [Petitioner],” were not signed by Petitioner but rather by the
court-appointed administrator. Neither assertion is sufficient evidence to carry
Respondent’s shifted burden of showing invalidity or termination of the marriage at
the time of Lawrence’s death or to create or show a disputed genuine issue of material
fact.
Viewing the evidence in the light most favorable to Respondent, the nonmoving
party, he has not carried his burden to show a genuine issue of material fact exists to
-9-
LAWRENCE V. LAWRENCE
Opinion of the Court
reverse summary judgment. Petitioner has established by competent evidence the
validity of her marriage to Lawrence and shifted the burden to Respondent to show
invalidity of the marriage at the time of Lawrence’s death. See Overton, 260 N.C. at
144, 132 S.E.2d at 353. Respondent has failed to carry that burden. His argument
is overruled.
VI. Laches
Respondent argues Petitioner should be barred from recovering any
reimbursement from him under the doctrine of laches.
Laches is the negligent omission for an unreasonable time
to assert a right enforceable in equity. In equity, where
lapse of time has resulted in some change in the condition
of the property or in the relations of the parties which
would make it unjust to permit the prosecution of the
claim, the doctrine of laches will be applied.
Builders Supplies Co. v. Gainey, 282 N.C. 261, 271, 192 S.E.2d 449, 456 (1972)
(citations and internal quotation marks omitted).
Laches is an affirmative defense. Johnson v. N.C. Dep’t of Cultural Res., 223
N.C. App. 47, 55, 735 S.E.2d 595, 600 (2012) (citation omitted); see also N.C. Gen.
Stat. § 1A-1, Rule 8(c) (2019). A party must raise any affirmative defenses it has in
its responsive pleadings, or else the defense is generally waived. Robinson v. Powell,
348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998).
Respondent argues Petitioner has waited ten years to assert her claim for
reimbursement, from her assumption of financial responsibility for the Property in
- 10 -
LAWRENCE V. LAWRENCE
Opinion of the Court
December 2008 until after Respondent moved to set aside the order to sell on 28
September 2018. Respondent did not raise the affirmative defense of laches in his
answer to Petitioner’s amended petition. His first invocation of laches was asserted
in his brief in support of his motions to dismiss and for summary judgment.
As Respondent did not raise his affirmative defense in his first responsive
pleading, he has waived the defense. Robinson, 348 N.C. at 566, 500 S.E.2d at 717;
see also § 1A-1, Rule 8(c). Respondent’s argument is dismissed.
VII. Conclusion
This petition for partition and reimbursement is equitable in nature and does
not arise from a contract, express or implied, between the parties to implicate the
three-year statute of limitations under N.C. Gen. Stat. § 1-52(1). The trial court
correctly determined, as a matter of law, that the ten-year statute of limitations
under N.C. Gen. Stat. § 1-56 applies to this case, rather than barring Petitioner’s
reimbursement action under the three-year statute of limitations of § 1-52(1). See
Martin Marietta, 241 N.C. App. at 84, 772 S.E.2d at 146.
Petitioner established her valid marriage to Lawrence by competent evidence
and shifted the burden to Respondent to show its invalidity at the time of Lawrence’s
death. Respondent has not carried that burden and his bare assertions or conclusions
do not create a genuine issue of material fact. See United Cmty. Bank, 369 N.C. at
559-60, 799 S.E.2d at 272. Further, Respondent has waived the affirmative defense
- 11 -
LAWRENCE V. LAWRENCE
Opinion of the Court
of laches by not raising the defense in his responsive pleading. Robinson, 348 N.C. at
566, 500 S.E.2d at 717; see also § 1A-1, Rule 8(c).
The trial court’s judgment, granting of summary judgment in favor of
Petitioner and denying of Respondent’s motions to dismiss and for summary
judgment is affirmed. It is so ordered.
AFFIRMED.
Judges DILLON and MURPHY concur.
- 12 -