{ "id": 8527920, "name": "DALE G. VANDERVOORT v. GATEWAY MOUNTAIN PROPERTY OWNERS ASSOCIATION, and BETTY S. GILLIAM", "name_abbreviation": "Vandervoort v. Gateway Mountain Property Owners Ass'n", "decision_date": "1994-05-03", "docket_number": "No. 9329SC722", "first_page": "655", "last_page": "658", "citations": [ { "type": "official", "cite": "114 N.C. App. 655" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "21 L. Ed. 60", "category": "reporters:federal", "reporter": "L. Ed.", "case_ids": [ 3425971 ], "weight": 3, "year": 1872, "pin_cites": [ { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/us/82/0552-01" ] }, { "cite": "356 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "815" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 207", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12126042 ], "year": 1987, "pin_cites": [ { "page": "210-11" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0207-01" ] }, { "cite": "234 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "474" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548490 ], "year": 1977, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0179-01" ] }, { "cite": "412 S.E.2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "697-98" }, { "page": "698", "parenthetical": "plaintiff must prove that \"use is adverse, hostile or under a claim of right\"" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 297", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522722 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "299-301" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0297-01" ] } ], "analysis": { "cardinality": 421, "char_count": 8138, "ocr_confidence": 0.755, "pagerank": { "raw": 5.422188994090435e-08, "percentile": 0.34177455905730414 }, "sha256": "9c37d1ed7700946b6dd8bf01268c86f5913a6febaaf3dae9578f84af7f2191fc", "simhash": "1:857dfc6b718db9ec", "word_count": 1328 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and MARTIN concur." ], "parties": [ "DALE G. VANDERVOORT v. GATEWAY MOUNTAIN PROPERTY OWNERS ASSOCIATION, and BETTY S. GILLIAM" ], "opinions": [ { "text": "GREENE, Judge.\nGateway Mountain Property Owners Association (Gateway) and Betty S. Gilliam (Gilliam) appeal from an order filed 27 April 1993 in McDowell County Superior Court, entering judgment by default for Dale G. Vandervoort (plaintiff) in his action requesting an easement by prescription over lands owned by defendants and others.\nIn June 1987, plaintiff filed a complaint against Cameron McKenzie (McKenzie) and Gateway, alleging an easement by prescription over lands owned by them. On 22 March 1988, McKenzie and Gateway moved for summary judgment, and the court denied their motion on 25 April 1988. Plaintiff filed an amended complaint on 5 October 1988 against McKenzie and his wife, Carmen McKenzie (Mrs. McKenzie), Gateway, Gilliam, Emory Vess (Vess), Johnson, Price and Sprinkle, P.A. (Johnson), Cheryl Kirkland (Kirkland), and Doris Harrison (Harrison). In his amended complaint, plaintiff alleged that he had \u201cfor more than twenty (20) years\u201d used a roadway that extended across the properties of the defendants and that his use was \u201copen, notorious, continuous, [and] adverse.\u201d He requested that he be declared the owner of an easement by prescription over a roadway through the property of the various defendants. On 7 November 1988, McKenzie, Mrs. McKenzie, Johnson, Kirkland, and Harrison filed an answer to plaintiff\u2019s amended complaint denying that the use of the road was open, notorious, continuous or adverse.\nOn 21 March 1989, plaintiff made a motion for entry of default against Gateway, Vess, and Gilliam pursuant to Rule 55 of the North Carolina Rules of Civil Procedure because they \u201chave not filed an answer or other pleading, nor have the Defendants obtained an extension of time within which to plead, the time within which Defendants might plead has now expired and Defendants are now in default.\u201d On 21 March 1989, the clerk of court entered default against Gateway, Vess, and Gilliam. On 11 April 1989, the trial court, by stipulation of counsel, amended the style of the case by changing defendant Vess to \u201cEstate of James E. Vess\u201d (Estate of Vess) and set aside the entry of default as to Estate of Vess.\nOn 2 October 1990, the trial court granted summary judgment in favor of McKenzie, Mrs. McKenzie, Gateway, Gilliam, Estate of Vess, Johnson, Kirkland, and Harrison and dismissed the action. Plaintiff appealed to this Court which reversed the trial court\u2019s entry of summary judgment as to McKenzie because a superior court judge had already denied an earlier motion for summary judgment made by McKenzie. Because, however*; \u201cthe parties provided the [trial] court with additional evidence, not available to the court on the first motion, that established defendants\u2019 right to judgment as a matter of law,\u201d i.e., that \u201cplaintiffs use of the roadway was permissive\u201d and that plaintiff \u201cclearly admitted that he did not intend to hold the easement to the exclusion of others,\u201d this Court \u201caffirm[ed] the trial court\u2019s order as to the remaining defendants \u2014 Estate of Emory Vess; Doris Harrison; Johnson, Price & Sprinkle, P.A.; Cheryl Kirkland; and Carmen Anna McKenzie.\u201d Vandervoort v. McKenzie, 105 N.C. App. 297, 299-301, 412 S.E.2d 696, 697-98 (1992). This Court did not address the appropriateness of summary judgments for Gateway and Gilliam.\nOn 27 April 1993, upon motion by plaintiff for default judgment against Gateway and Gilliam, the trial court found that an amended complaint and summons was filed against Gateway and Gilliam on 5 October 1988, that process was duly served on Gateway on 6 October 1988, and on Gilliam on 13 November 1988, and that neither has filed an Answer or other pleading and no extension of time within which to plead has been requested or given and the time within which they might plead expired. The trial court also found that on 21 March 1989, the defaults of Gateway and Gilliam were duly entered and have not been set aside. The trial court then granted default judgment for plaintiff, declaring him the owner of an easement as to Gateway and Gilliam and enjoined them from interfering with plaintiff\u2019s use of the roadway.\nThe issue presented is whether in an action to establish an easement by prescription over the properties of several defendants, the trial court can, by entry of a default judgment, grant the easement across the property of a non-answering defendant and by grant of summary judgment deny the easement across the property of an answering defendant.\nWhere a plaintiff files a complaint for joint and several liability against several defendants, and one of them does not respond to the complaint, the proper procedure is to enter default against the non-answering defendant who loses his standing in court and is not entitled to appear in any way and proceed upon the other defendants\u2019 answers. Harris v. Carter, 33 N.C. App. 179, 182, 234 S.E.2d 472, 474 (1977); Leonard v. Pugh, 86 N.C. App. 207, 210-11, 356 S.E.2d 812, 815 (1987); Frow v. De La Vega, 82 U.S. (15 Wall.) 552, 21 L. Ed. 60 (1872). If the court decides against the plaintiff on the merits of the claim asserted against the answering defendants, the complaint should be dismissed as to all defendants, including the defaulting party; likewise, if the court decides in favor of the plaintiff, he is entitled to a final judgment against all. Id. \u201cIt would be unreasonable to hold that because one defendant had made default the plaintiff should have a decree even against him, where the court is satisfied from the proofs offered by the other, that in fact the plaintiff is not entitled to a decree.\u201d Frow, 82 U.S. (15 Wall.) at 554, 21 L. Ed. at 61. This principle and reasoning which applies to joint and several liability extends to cases where several defendants have closely related defenses or where \u201cit is necessary that the relief against the defendants be consistent.\u201d 10 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure \u00a7 2690 (1983 & Supp. 1993).\nAlthough plaintiff\u2019s claim against the defendants does not seek joint and several liability, the evidence in this case requires that the plaintiffs request for an easement be denied as to all the defendants. The undisputed testimony as reflected in our earlier opinion, Vandervoort, 105 N.C. App. 297, 412 S.E.2d 696, is that an essential element of plaintiff\u2019s claim did not exist because he \u201cdid not intend to hold the easement to the exclusion of [all] others.\u201d Id. at 301, 412 S.E.2d at 698 (plaintiff must prove that \u201cuse is adverse, hostile or under a claim of right\u201d). It would therefore be inconsistent to allow imposition of a prescriptive easement as to the non-answering defendants owning property through which the easement passes while not allowing an easement on other portions of the same roadway passing through property owned by the answering defendants.\nFor these reasons, the trial court erred in granting the plaintiff an easement over the property of Gateway and Gilliam. The judgment of default therefore must be reversed.\nReversed.\nJudges JOHNSON and MARTIN concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Carnes & Franklin, P.A., by Hugh J. Franklin, Everette C. Carnes, and Krinn E. Evans, for plaintiff-appellee.", "Robert E. Dungan, P.A., by Robert E. Dungan and James Michael Lloyd, for defendant-appellants." ], "corrections": "", "head_matter": "DALE G. VANDERVOORT v. GATEWAY MOUNTAIN PROPERTY OWNERS ASSOCIATION, and BETTY S. GILLIAM\nNo. 9329SC722\n(Filed 3 May 1994)\nJudgments \u00a7 166 (NCI4th) \u2014 easement by prescription over several properties \u2014granting by default judgment over some \u2014denial by summary judgment over others \u2014 inconsistent result improper\nIn an action to establish an easement by prescription over the property of several defendants, the trial court cannot, by entry of a default judgment, grant the easement across the property of a non-answering defendant and by grant of summary judgment deny the easement across the property of an answering defendant, since it would be inconsistent to do so.\nAm Jur 2d, Judgments \u00a7\u00a7 1160, 1166, 1178 et seq.\nAppeal by defendants from judgment entered 27 April 1993 in McDowell County Superior Court by Judge Zoro J. Guice, Jr. Heard in the Court of Appeals 23 .March 1994.\nCarnes & Franklin, P.A., by Hugh J. Franklin, Everette C. Carnes, and Krinn E. Evans, for plaintiff-appellee.\nRobert E. Dungan, P.A., by Robert E. Dungan and James Michael Lloyd, for defendant-appellants." }, "file_name": "0655-01", "first_page_order": 683, "last_page_order": 686 }