Duke Energy Carolinas, LLC v. Bruton Cable Service, Inc.
233 N.C. App. 468
N.C. Ct. App.2014Background
- Bruton Cable Service purchased Lots 7 and 59 in Randolph Hills Phase II from the Taylors in 2005.
- DMP prepared and Davis certified the final plat showing Duke’s 200-foot easement and a 150-foot easement width.
- Bruton relied on the plat’s representation that the Duke easement was 150 feet wide.
- Duke notified Bruton in February 2007 that a 200-foot Duke easement existed and encroachments must be removed.
- Duke sued Bruton in July 2011; Bruton filed a third‑party complaint against DMP and Davis in December 2011 seeking negligent misrepresentation.
- The trial court granted summary judgment for the third‑party defendants, which Bruton appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether unsworn letters were improperly considered | Bruton | DMP/Davis | Error to consider unsworn letters; Rule 56 not satisfied |
| Whether the third‑party action was time‑barred | Bruton timely filed under 1-47(6) | Defendants rely on other limitations | Timely under 1-47(6); discovery in 2007 and filing in 2011 within 10 years |
| Whether Bruton could validly file a third‑party action | Bruton complies with Rule 14 and 18 | Action is improperly styled as third‑party | Permissible third‑party indemnity claim under Rules 14 and 18 |
Key Cases Cited
- Raftery v. Wm. C. Vick Constr. Co., 291 N.C. 180 (N.C. 1976) (accrual when aggrieved party discovers misrepresentation and suffers harm)
- Fowler v. Valencourt, 334 N.C. 345 (N.C. 1993) (choose the more specific/longer applicable statute of limitations)
- Guyton v. FM Lending Servs., Inc., 199 N.C. App. 30 (N.C. App. 2009) (misrepresentation accrual requires discovery and harm)