263 N.C. App. 1
N.C. Ct. App.2018Background
- Dispute over the on-the-ground boundary between adjoining tracts originally divided by a 1905 Parker Plat; plaintiffs (Urquhart family) own one tract, defendant Lowgrounds Land Co. owns the adjacent tract.
- Multiple later surveys: a 1965 Livermon map (with disclaimer about closure), a 2013 Pruden survey (plaintiffs’ survey showing line east of a pond), and a Nicholson map (defendants’ map showing line west of Pruden line).
- Court-appointed surveyor Paul Toti was ordered by consent to locate and mark the boundary shown on the 1905 Parker Plat and to prepare a court-ordered survey; Toti’s survey displayed both contested lines and labeled a line between points “G” and “C.”
- Plaintiffs moved in limine seeking to exclude reliance on the Nicholson map; a hearing was noticed for that motion. At the hearing the trial court instead orally determined the correct boundary to be the line urged by defendants and later entered a written Division Order adopting Toti’s choice of the Nicholson line.
- Plaintiffs had pleaded for a jury trial on all factual issues; the court’s Division Order resolved the boundary issue without a jury. Plaintiffs filed a Rule 60 motion claiming surprise and deprivation of the jury right; the trial court denied reconsideration. Ayscue appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court improperly resolved the on-the-ground boundary at a hearing noticed only for a motion in limine | The court converted the limine hearing into a bench trial without notice or consent, producing unfair surprise under Rule 60(b) | The court could rely on the court-ordered survey and expert testimony to resolve the boundary | Held for plaintiff: hearing constituted unfair surprise; Rule 60 relief should have been granted and Division Order vacated |
| Whether plaintiffs waived their right to a jury trial by consenting to appointment of a court surveyor (Consent Order) | Consent to a survey did not waive the constitutional and Rule 38/39 right to jury trial on factual location of boundary | Consent Order allowing the court to use the survey meant the court could resolve the line without a jury | Held for plaintiff: the Consent Order did not constitute a clear waiver of the jury right; right to jury is substantial and not lightly inferred |
| Whether the on-the-ground location of the boundary is a jury question | The factual location of termini on the ground is a matter for the jury under controlling precedents | Court may rely on surveyor opinion and court-ordered survey to resolve the issue | Held for plaintiff: on-the-ground boundary location is a question of fact for the jury (Batson line of authority) |
| Whether a court-appointed surveyor may supply binding opinion testimony resolving boundary location | Plaintiffs argued a court-appointed surveyor’s opinion cannot supplant a jury’s factfinding | Defendants relied on Toti’s survey and opinion to establish the boundary | Held for plaintiff: a court-appointed surveyor may not resolve the disputed on-the-ground boundary as a substitute for a jury; Toti’s opinion could not authorize the court to deny a jury trial |
Key Cases Cited
- Batson v. Bell, 249 N.C. 718 (N.C. 1959) (establishes that what are the boundaries is a question of law but where they lie on the ground is a jury question)
- Mathias v. Brumsey, 27 N.C. App. 558 (N.C. Ct. App. 1975) (jury-trial right is substantial; waivers strictly construed)
- J & B Slurry Seal Co. v. Mid-South Aviation, Inc., 88 N.C. App. 1 (N.C. Ct. App. 1987) (two-part test for interlocutory appeal affecting a substantial right)
- Dep’t of Transportation v. Wolfe, 116 N.C. App. 655 (N.C. Ct. App. 1994) (order denying jury request affects substantial right and is appealable)
- Davis v. Davis, 360 N.C. 518 (N.C. 2006) (standard of review for denial of Rule 60(b) relief is abuse of discretion)
- Endsley v. Supply Corp., 44 N.C. App. 308 (N.C. Ct. App. 1979) (definition of “surprise” under Rule 60(b))
- Moore v. Richard West Farms, Inc., 113 N.C. App. 137 (N.C. Ct. App. 1993) (parties may agree to be bound by independent surveyor, in which case court may adopt it)
- Jones v. Arehart, 125 N.C. App. 89 (N.C. Ct. App. 1997) (a court-appointed surveyor may not offer opinion that substitutes for jury factfinding)
- Carson v. Reid, 76 N.C. App. 321 (N.C. Ct. App. 1985) (related precedent on limits of surveyor opinion)
- Chappell v. Donnelly, 113 N.C. App. 626 (N.C. Ct. App. 1994) (citing Batson on legal vs. factual boundary questions)
- Young v. Young, 76 N.C. App. 93 (N.C. Ct. App. 1985) (reiterating that termini/boundary location are jury questions)