{ "id": 4163221, "name": "TOWN OF MATTHEWS, a North Carolina municipal corporation, Plaintiff v. LESTER E. WRIGHT and Wife, VIRGINIA J. WRIGHT, Defendants", "name_abbreviation": "Town of Matthews v. Wright", "decision_date": "2008-12-16", "docket_number": "No. COA08-270", "first_page": "552", "last_page": "556", "citations": [ { "type": "official", "cite": "194 N.C. App. 552" } ], "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": "627 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635428 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/627/0650-01" ] }, { "cite": "177 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300859 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/177/0001-01" ] }, { "cite": "163 S.E. 808", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1932, "pin_cites": [ { "page": "810", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "202 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628086 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/202/0672-01" ] }, { "cite": "521 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "143", "parenthetical": "internal citations omitted" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 469", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11241484 ], "year": 1999, "pin_cites": [ { "page": "472", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0469-01" ] } ], "analysis": { "cardinality": 445, "char_count": 10816, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1358658361935387 }, "sha256": "b545895de169ca484da0db344c3541ce5f7abcb39aa64534dc72c1d4a340ad34", "simhash": "1:87ffd0088ee546d3", "word_count": 1795 }, "last_updated": "2023-07-14T16:50:43.594733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JACKSON and ARROWOOD concur." ], "parties": [ "TOWN OF MATTHEWS, a North Carolina municipal corporation, Plaintiff v. LESTER E. WRIGHT and Wife, VIRGINIA J. WRIGHT, Defendants" ], "opinions": [ { "text": "BRYANT, Judge.\nPlaintiff appeals from the trial court\u2019s order of partial summary judgment entered 11 December 2007 ordering that \u201cHome Place\u201d is a private road. The trial court certified the order as a final order pursuant to North Carolina Rules of Civil Procedure, Rule 54(b). For the reasons stated below, we reverse and remand.\nOn 19 April 2007, plaintiff filed a complaint in Mecklenburg County Superior Court which alleged that defendants erected two signs and a fence in the right-of-way of a Town street designated \u201cHome Place.\u201d Plaintiff further alleged that it notified defendants the obstructions were to be removed within twenty days and that defendants failed to comply.\nDefendants answered plaintiffs complaint and counterclaimed. Defendants raised the defenses of res judicata, collateral estoppel, unclean hands, denial of due process, estoppel, failure to state a claim, and misconduct. Under the defense of res judicata, defendants asserted that the issue of whether Home Place was a public road had been fully litigated through final judgment and appeal, with a ruling from this Court on 4 April 2006. Defendants counterclaimed on grounds of trespass and sought an injunction against further action by plaintiff to prevent the use of Home Place as private property.\nDefendants filed a request for admissions referencing Wright I. In Wright I, this Court reversed a trial court\u2019s order entered 10 July 2006, which upheld the decision of the Town of Matthews Board of Adjustment that Home Place was a public road, and remanded the matter for further findings of fact as to \u201cwhether Home Place became a public street by means of implied dedication.\u201d Id. at 16, 627 S.E.2d at 661. On remand, the trial court concluded in an order entered 11 July 2006 that \u201cthe decision of the Matthews Zoning Board of Adjustment [was] invalid\u201d and further reversed and remanded the matter to the Matthews Board of Adjustment.\nIn response to defendants\u2019 request for admissions, plaintiff acknowledged that after entry of the 11 July 2006 trial court order the Matthews Board of Adjustment held a meeting on 10 August 2006 and adopted said order. After the trial court order declared invalid the Matthews Board of Adjustment decision declaring Home Place a public road, the Board determined that \u201cthe issue of Implied Dedication was no longer an issue.\u201d The Board further \u201cadmitted that the North Carolina Court of Appeals\u2019 Opinion [was] not a part of the record of the Matthews Board of Adjustment.\u201d\nAlso, in response to defendant\u2019s interrogatories, plaintiff admitted that, absent notice to defendants, the Matthews Board of Commissioners adopted, on 9 October 2006, a \u201cResolution Adding Streets To The Matthews Street System (NUNC'PRO TUNC [25 March 1985])\u201d which added the street known as \u201cHome Place\u201d as a public road.\nOn 19 October 2007, defendants filed an affidavit, plaintiff\u2019s responses to defendant\u2019s interrogatories, and a motion for partial summary judgment. The affidavit, by defendant Virginia Wright, gave a history of the matter from the initial hearing before the Matthews Board of Adjustment to the eventual remand to the Board from the North Carolina Court of Appeals. The motion for partial summary judgment asserted the following:\n1. The prior adjudication by the North Carolina Court of Appeals which has become final and is binding determined that Home Place did not become a public street either by express dedication or by prescription.\n2. The passage of time since the Court of Appeals ruling has not changed the rights of the parties.\n3. The third and final way in which a road can become public, other than express dedication or prescription, is implied dedication.\n4. Home Place has never been impliedly dedicated as a public road.\nAfter a review of the record, the trial court made the following finding: \u201cthe record before [the trial court] including but not limited to the ruling of the Court of Appeals of April 4th, 2006, the Ruling of [the Superior Court] of July 10th, 2006, and the action of the [plaintiff] on August 10th, 2006, establishes that Home Place is a private road.\u201d Furthermore, the trial court concluded that \u201cDefendants have established that Home Place is a private road, and Partial Summary Judgment should be granted as to that issue.\u201d The trial court\u2019s order dismissed plaintiff\u2019s claim. The trial court ruled that a genuine issue a material fact remained as to defendants\u2019 remedies, but that \u201cthere is no just reason for delay in the certification of the dismissal of Plaintiff\u2019s claim as a final Order . . . .\u201d Plaintiff appeals:\nStandard of Review\nAn entry of summary judgment by the trial court is fully reviewable by this Court. A party is entitled to summary judgment as a matter of law when there is no genuine issue of material fact as to any triable issue. Following a motion for summary judgment, where the forecast of'evidence available for trial demonstrates that a party will not be able to make out a prima facie case at trial, there is no genuine issue of material fact and summary judgment is appropriate.\nRoten v. Critcher, 135 N.C. App. 469, 472, 521 S.E.2d 140, 143 (1999) (internal citations omitted).\nOn appeal, plaintiff raises the following two issues: (I) Did the trial court err in granting summary judgment in favor of the defendants and dismissing plaintiffs claim; and (II) did the trial court err in determining that Home Place is a private road.\nI&II\nPlaintiff argues that the trial court erred in granting summary judgment in favor of defendants and dismissing plaintiffs claim. Plaintiff contends that this Court\u2019s opinion in Wright I did not amount to an adjudication of Home Place as a private street, and the nunc pro tunc 25 March 1985 resolution by the Town of Matthews Board of Commissioners, which added Home Place to the Town of Matthews\u2019 street system, precluded the adjudication of Home Place as a private road. We agree in part and disagree in part.\nAs noted in Wright I, \u201c[a] private right-of-way or street may become a public street by one of three methods: (1) in regular proceedings before a proper tribunal . . .; (2) by prescription; or (3) through action by the owner, such as a dedication, gift, or sale.\u201d Wright, 177 N.C. App. at 10, 627 S.E.2d at 658. We determined that \u201c[tjhere [was] no evidence in the record that Home Place was ever the subject of a condemnation proceeding or any other proceeding regularly constituted before the proper tribunal\u201d or was \u201cever the subject of a gift or sale.\u201d Id. at 10-11, 627 S.E.2d at 658. There was insufficient evidence of prescription. Id. at 16, 627 S.E.2d at 661. And, in a discussion regarding express dedication, we stated that there was \u201cno evidence to support the Board [of Adjustment\u2019s] findings that in March of 1985 there was a resolution by the Town of Matthews to take over Home Place from the State system . . . .\u201d Id. at 13, 627 S.E.2d at 660. And, as such, there was insufficient evidence of an express dedication of Home Place. Id. As a result, we concluded that\nthe findings made by the Board [of Adjustment] and the trial court do not support the conclusion that Home Place is a public street. . . . The Board [of Adjustment] and the trial court made no findings of fact or conclusions of law [as to] whether Home Place was impliedly dedicated to the public. We therefore reverse the decision of the trial court and remand this case for further findings detailing whether or not Home Place became a public street by means of implied dedication.\nId. at 16, 627 S.E.2d at 661. The record before us indicates that no findings of fact were made as to whether Home Place was impliedly dedicated to the public; therefore, there was no final adjudication as to whether Home Place was a public or private street.\nIn the current appeal, plaintiffs argue that the Town of Matthews Board of Commissioners resolution, adopted nunc pro tunc 25 March 1985, added Home Place to the Matthews\u2019. street system and established Home Place as a public street. We disagree.\nIn Chowan County v. Commissioner of Banks, 202 N.C. 672, 163 S.E. 808 (1932), our Supreme Court held that while a board of county commissioners were welcome to \u201ccorrect an erroneous entry upon the minutes so that the record shall, in the language of the law, \u2018speak the truth\u2019 \u201d the board could not with \u201cretroactive effect\u201d change what had been \u201cpurposely imposed in the way the law prescribes[.]\u201d Id. at 675, 163 S.E. at 810 (citation omitted).\nHere, the Board of Commissioners of the Town of Matthews adopted a resolution nunc pro tunc 25 March 1985 to add Home Place to the Town\u2019s street system. This amounts to a retroactive resolution to change the street system previously imposed and is thus invalid. Therefore, this resolution does not preclude the adjudication of Home Place as a private road.\nFor the aforementioned reasons, we hold the trial court erred in granting summary judgment and concluding that Home Place was a private road. Consistent with the holding in Wright I, we remand for further findings of fact as to whether Home Place was impliedly dedicated as a public street.\nReversed and remanded.\nJudges JACKSON and ARROWOOD concur.\n. Wright v. Town of Matthews, 177 N.C. App. 1, 627 S.E.2d 650 (2006), referred to hereinafter as Wright I.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Buckley, McMullen & Buie, P.A., by Charles R. Buckley, III, for plaintiff-appellant.", "Blanco, Tackabery, Combs & Matamoros, P.A., by Peter J. Juran, for defendant-appellees." ], "corrections": "", "head_matter": "TOWN OF MATTHEWS, a North Carolina municipal corporation, Plaintiff v. LESTER E. WRIGHT and Wife, VIRGINIA J. WRIGHT, Defendants\nNo. COA08-270\n(Filed 16 December 2008)\nHighways and Streets\u2014 public street versus private road\u2014 implied dedication \u2014 retroactive resolution \u2014 summary judgment\nThe trial court erred by granting partial summary judgment in favor of defendants and concluding that a road in Matthews was a private streeet, and the case is remanded for further findings of fact as to whether the road was impliedly dedicated as a public street, because: (1) the record indicated that no findings of fact were made as to whether the road was impliedly dedicated to the public, and thus, there was no final adjudication as to whether the road was a public or private street; and (2) although plaintiffs contend the Town of Matthews Board of Commissioners\u2019 resolution, adopted nunc pro tunc 25 March 1985, added the road to the Matthews street system and established the road as a public street, it was invalid since it amounted to a retroactive resolution to change the street system previously imposed, and therefore, it did not preclude the adjudication of the road as a private road.\nAppeal by plaintiff from order entered 11 December 2007 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 September 2008.\nBuckley, McMullen & Buie, P.A., by Charles R. Buckley, III, for plaintiff-appellant.\nBlanco, Tackabery, Combs & Matamoros, P.A., by Peter J. Juran, for defendant-appellees." }, "file_name": "0552-01", "first_page_order": 584, "last_page_order": 588 }