{ "id": 9368101, "name": "BEULAH VERNON, Plaintiff-Appellant v. MICHAEL LOWE and BRENDA LOWE, Defendant-Appellees", "name_abbreviation": "Vernon v. Lowe", "decision_date": "2002-02-19", "docket_number": "No. COA00-1171", "first_page": "694", "last_page": "697", "citations": [ { "type": "official", "cite": "148 N.C. App. 694" } ], "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": "335 S.E.2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 541", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696388, 4687435, 4687597, 4690541, 4693085 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0541-02", "/nc/314/0541-03", "/nc/314/0541-04", "/nc/314/0541-01", "/nc/314/0541-05" ] }, { "cite": "331 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "711" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526578 ], "year": 1985, "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0059-01" ] }, { "cite": "339 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 618", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522442 ], "year": 1986, "pin_cites": [ { "page": "621-22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0618-01" ] }, { "cite": "312 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2403756, 2395921, 2403313, 2394261, 2401497 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0308-03", "/nc/310/0308-01", "/nc/310/0308-04", "/nc/310/0308-05", "/nc/310/0308-02" ] }, { "cite": "308 S.E.2d 73", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "825" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526984 ], "year": 1983, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0391-01" ] }, { "cite": "402 S.E.2d 860", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "861" }, { "page": "861" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 560", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525074 ], "year": 1991, "pin_cites": [ { "page": "561-62" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0560-01" ] }, { "cite": "389 S.E.2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "326 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5304327, 5304790, 5307961, 5306044, 5309630 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0050-02", "/nc/326/0050-03", "/nc/326/0050-01", "/nc/326/0050-05", "/nc/326/0050-04" ] }, { "cite": "380 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "578" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 530", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527521 ], "year": 1989, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0530-01" ] }, { "cite": "194 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "7" } ], "opinion_index": 1 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "year": 1973, "pin_cites": [ { "page": "619" } ], "opinion_index": 1, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "251 S.E.2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "908" } ], "opinion_index": 1 }, { "cite": "40 N.C. App. 63", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548779 ], "year": 1979, "pin_cites": [ { "page": "65" } ], "opinion_index": 1, "case_paths": [ "/nc-app/40/0063-01" ] }, { "cite": "520 S.E.2d 797", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "800" }, { "page": "800" }, { "page": "800" }, { "page": "800" } ], "opinion_index": 1 }, { "cite": "135 N.C. App. 515", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241824 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "517" }, { "page": "517" } ], "opinion_index": 1, "case_paths": [ "/nc-app/135/0515-01" ] } ], "analysis": { "cardinality": 456, "char_count": 8353, "ocr_confidence": 0.731, "pagerank": { "raw": 2.2970680932069147e-07, "percentile": 0.7869476174093547 }, "sha256": "54cbdd0a5a1116dc64beff5a818293c0e3d43e1ddb91fcf74c0c0489c907b757", "simhash": "1:2fc2c10c109f3d5c", "word_count": 1423 }, "last_updated": "2023-07-14T20:14:25.013425+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BIGGS concurs.", "Judge TIMMONS-GOODSON dissents with separate opinion." ], "parties": [ "BEULAH VERNON, Plaintiff-Appellant v. MICHAEL LOWE and BRENDA LOWE, Defendant-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiff filed an action against defendants to quiet title to a tract of land located in Madison, North Carolina. Plaintiff and defendants claimed ownership of the property through separate quitclaim deeds. Plaintiff also alleged she was entitled to recover from defendants for trespass upon the property, cutting timber thereon, and removing the timber.\nIn a pretrial conference, plaintiff and defendants stipulated that the following issues were to be determined by the trial court:\n(1) Is the plaintiff the owner in fee simple of the real property described in the complaint? (2) Was the entry by the defendants] upon the real property described in the complaint trespass as alleged in the complaint? (3) Have the defendants removed good and valuable timber from the lands of the plaintiff as alleged in the complaint? and, (4) If so, what amount of damages, if any, is the plaintiff entitled to recover of the defendants?\nAt the close of the evidence, defendants moved to dismiss plaintiff\u2019s claim for damages, arguing plaintiff had only offered evidence of the chain of title as to a portion of the land listed in the complaint, described at trial as \u201cLot 7,\u201d but had not presented evidence concerning an adjoining .14 acre tract. After determining plaintiff had in fact only offered evidence pertaining to \u201cLot 7,\u201d and not the .14 acre tract of land adjoining \u201cLot 7,\u201d the trial court dismissed plaintiffs entire claim. Plaintiff appeals.\nPlaintiff argues the trial court erred in dismissing her claim to quiet title because the court failed to view the evidence in the light most favorable to plaintiff. Plaintiff contends the trial court\u2019s order was similar to a directed verdict and is therefore subject to the standard of review requiring the evidence to be considered in the light most favorable to the non-moving party. Plaintiff argues if she produces \u201cmore than a scintilla of evidence,\u201d her claim will survive a motion to dismiss. Poore v. Swan Quarter Farms, 94 N.C. App. 530, 533, 380 S.E.2d 577, 578 (1989), disc. review denied, 326 N.C. 50, 389 S.E.2d 93, 94 (1990).\nHowever, defendants\u2019 motion is correctly treated as a motion for involuntary dismissal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) (1999). \u201cWhere there is a trial by the court, sitting without a jury, the appropriate motion by which a defendant may test the sufficiency of plaintiff\u2019s evidence to show a right to relief is a motion for involuntary dismissal.\u201d Mashburn v. First Investors Corp., 102 N.C. App. 560, 561-62, 402 S.E.2d 860, 861 (1991). The difference between a motion for a directed verdict and a motion for involuntary dismissal \u201cis more than a mere formality, as a different test is to be applied to determine the sufficiency of the evidence.\u201d Id. at 562, 402 S.E.2d at 861. In a Rule 41(b) motion, \u201cthe court must pass upon whether the evidence is sufficient as a matter of law to permit a recovery; and if so, must pass upon the weight and credibility of the evidence upon which plaintiff must rely in order to recover.\u201d A.M.E. Zion Church v. Union Chapel A.M.E. Zion Church, 64 N.C. App. 391, 409, 308 S.E.2d 73, 825 (1983), disc. review denied, 310 N.C. 308, 312 S.E.2d 649 (1984). \u201cSince the court will determine the facts anyway, the function of a judge . . . under G.S. 1A-1, Rule 41(b) is to evaluate the evidence without any limitations as to inferences in favor of the plaintiff.\u201d Holthusen v. Holthusen, 79 N.C. App. 618, 621-22, 339 S.E.2d 823, 825 (1986).\nIn the case before us, the first issue stipulated by the parties to be determined by the trial court was an action to quiet title to a tract of land. Plaintiff presented evidence that she had obtained title by a quitclaim deed. She then offered expert testimony that the grantors of the quitclaim deed previously possessed a valid chain of title to the property. However, the trial court in this case stated that plaintiff has \u201cfailed to prove by the greater weight of the evidence that she is the fee simple owner of the real property[.]\u201d A motion to dismiss under Rule 41(b) \u201cprovides a procedure whereby the judge may weigh the evidence, determine the facts, and render judgment on the merits against the plaintiff, even though the plaintiff may have made out a prima facie case.\u201d McKnight v. Cagle, 76 N.C. App. 59, 65, 331 S.E.2d 707, 711, cert. denied, 314 N.C. 541, 335 S.E.2d 20 (1985). The trial court\u2019s order stated the court did in fact employ this procedure; we therefore dismiss plaintiffs assignment of error and affirm the order of the trial court.\nAffirmed.\nJudge BIGGS concurs.\nJudge TIMMONS-GOODSON dissents with separate opinion.", "type": "majority", "author": "McGEE, Judge." }, { "text": "TIMMONS-GOODSON, Judge,\ndissenting.\nI disagree with the majority that the trial court\u2019s order of dismissal is supported by its findings of fact. I therefore respectfully dissent.\n\u201cA dismissal under Rule 41(b)should be granted if the plaintiff has shown no right to relief or if the plaintiff has made out a col-orable claim but the court nevertheless determines as the trier of fact that the defendant is entitled to judgment on the merits.\u201d Hill v. Lassiter, 135 N.C. App. 515, 517, 520 S.E.2d 797, 800 (1999). If the trial court grants a motion for involuntary dismissal, he must make findings of fact and state his conclusions of law separately as required by the Rule. Joyner v. Thomas, 40 N.C. App. 63, 65, 251 S.E.2d 906, 908 (1979). Failure to make the necessary findings of fact constitutes reversible error. Hill, 135 N.C. App. at 517, 520 S.E.2d at 800.\nSuch, findings are intended to aid the appellate court by affording it a clear understanding of the basis of the trial court\u2019s decision, and to make definite what was decided[.] Finally, the requirement of findings should evoke care on the part of the trial judge in ascertaining the facts.\nId. at 518, 520 S.E.2d at 800 (quoting, Helms v. Rea, 282 N.C. 610, 619, 194 S.E.2d 1, 7 (1973)).\nIn the instant case, the trial court made the following findings of fact:\n2. That the matter was tried by the Court without a jury.\n3. That at the close of all the evidence, the court was of the opinion that the plaintiff had failed to prove by the greater weight of the evidence that she is the fee simple owner of the real property which is the subject of his action and this Court being of the opinion that the plaintiff, having failed to carry the burden of proof on said issue, was not entitled to a favorable answer to any of the subsequent issues and the Court being of the opinion that the action should be dismissed.\nThis order does not make known the grounds on which the court dismissed plaintiff\u2019s claim and additionally does not set forth any conclusions of law to support its findings of fact. While a review of the transcript reveals that the trial court dismissed plaintiff\u2019s claim because plaintiff had not shown that \u201cshe is the fee simple owner of the real property,\u201d this Court is unable to determine the propriety of the order \u201cunaided by findings of fact explaining the reasoning of the trial court.\u201d Hill at 518, 520 S.E.2d at 800.\nSince, the trial court failed to make the necessary findings, I would vote to remand for further findings and conclusions of law in support of its order of dismissal.", "type": "dissent", "author": "TIMMONS-GOODSON, Judge," } ], "attorneys": [ "Craig M. Blitzer, for plaintiff-appellant.", "No brief filed by defendant-appellees." ], "corrections": "", "head_matter": "BEULAH VERNON, Plaintiff-Appellant v. MICHAEL LOWE and BRENDA LOWE, Defendant-Appellees\nNo. COA00-1171\n(Filed 19 February 2002)\nCivil Procedure\u2014 motion to dismiss \u2014 directed verdict \u2014 involuntary dismissal\nThe trial court did not err by granting defendants\u2019 motion to dismiss plaintiffs claim for damages in an action to quiet title to the pertinent tract of land even though plaintiff contends the trial court\u2019s order was similar to a directed verdict, meaning the evidence should be viewed in the light most favorable to plaintiff, because: (1) defendants\u2019 motion is correctly treated as a motion for involuntary dismissal under N.C.G.S. \u00a7 1A-1, Rule 41(b) when there is a trial by the court sitting without a jury; and (2) the function of a judge under Rule 41(b) is to evaluate the evidence without any limitations as to inferences in favor of plaintiff.\nJudge Timmons-Goodson dissenting.\nAppeal by plaintiff from order entered 31 March 2000 by Judge Peter M. McHugh in Superior Court, Rockingham County. Heard in the Court of Appeals 28 September 2001.\nCraig M. Blitzer, for plaintiff-appellant.\nNo brief filed by defendant-appellees." }, "file_name": "0694-01", "first_page_order": 724, "last_page_order": 727 }