{ "id": 4233114, "name": "KAYLOR B. ROBINSON; BRENDA M. BELL; DANNY McGEE; JIMMY McGEE; WILLIAM DAMEWOOD; NANCY McGEE; MAZZLE MEMORY; MARTHA WHITED; and MARY BROWN, Plaintiffs v. FOREST CREEK LIMITED PARTNERSHIP; THORTON VENTURES, LLC and URBAN PIPELINE, INC., Defendants", "name_abbreviation": "Robinson v. Forest Creek Ltd. Partnership", "decision_date": "2011-07-19", "docket_number": "No. COA11-118", "first_page": "593", "last_page": "599", "citations": [ { "type": "official", "cite": "213 N.C. App. 593" } ], "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": "286 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "792", "parenthetical": "holding that in the summary judgment context, plaintiff's incorrect legal theory is not fatal to his claim when the allegations in the complaint \"give sufficient notice of the wrong complained of' and \"are sufficient to state a claim under some legal theory\"" } ], "opinion_index": 0 }, { "cite": "305 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565990 ], "year": 1982, "pin_cites": [ { "page": "61", "parenthetical": "holding that in the summary judgment context, plaintiff's incorrect legal theory is not fatal to his claim when the allegations in the complaint \"give sufficient notice of the wrong complained of' and \"are sufficient to state a claim under some legal theory\"" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0041-01" ] }, { "cite": "118 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "614", "parenthetical": "holding that while \"[p]erjured testimony and the subornation of perjured testimony are criminal offenses,\" \"neither are torts supporting a civil action for damages.\"" } ], "opinion_index": 0 }, { "cite": "254 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625652 ], "year": 1961, "pin_cites": [ { "page": "243", "parenthetical": "holding that while \"[p]erjured testimony and the subornation of perjured testimony are criminal offenses,\" \"neither are torts supporting a civil action for damages.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0240-01" ] }, { "cite": "704 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 3842518 ], "year": 2010, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/w-va/226/0663-01" ] }, { "cite": "318 S.E.2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "356", "parenthetical": "\"The gravamen of an action for the desecration of a grave is . . . for mental suffering for the disturbance of the final resting place for a loved one.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 761", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527035 ], "year": 1984, "pin_cites": [ { "page": "763", "parenthetical": "\"The gravamen of an action for the desecration of a grave is . . . for mental suffering for the disturbance of the final resting place for a loved one.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0761-01" ] }, { "cite": "130 A.L.R. 259", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "153 S.E.2d 136", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "138", "parenthetical": "quoting \"130 A.L.R. 259\" and recognizing that \"the heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, could recover damages from one who wrongfully injured or removed it\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "269 N.C. 613", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565184 ], "year": 1967, "pin_cites": [ { "page": "615", "parenthetical": "quoting \"130 A.L.R. 259\" and recognizing that \"the heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, could recover damages from one who wrongfully injured or removed it\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc/269/0613-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 65-15", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1951, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 65-106", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "2007 N.C. Sess. Laws 188", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "1971 N.C. Sess. Laws 1035", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "opinion_index": 0 }, { "cite": "72 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1952, "pin_cites": [ { "page": "425" }, { "page": "425" }, { "page": "425-26", "parenthetical": "stating that allegations that defendant \"destroyed said graves and exposed the remains of their said ancestors by leveling off the hill on which the graveyard was located\" were \"sufficient to constitute a cause of action for the wrongful desecration of the graves\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "236 N.C. 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623295 ], "weight": 3, "year": 1952, "pin_cites": [ { "page": "170" }, { "page": "170-71" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0170-01" ] }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "835", "parenthetical": "citation omitted" }, { "page": "835", "parenthetical": "\"A 'genuine issue' is one that can be maintained by substantial evidence.\"" } ], "opinion_index": 0 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "83", "parenthetical": "citation omitted" }, { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0077-01" ] } ], "analysis": { "cardinality": 727, "char_count": 15038, "ocr_confidence": 0.758, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14037845449676795 }, "sha256": "223c806735f077788696b4059377abe917d5e9b349e3da3205cf26025ed2a329", "simhash": "1:a72b712aa19d94f2", "word_count": 2419 }, "last_updated": "2023-07-14T21:51:58.983312+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge THIGPEN concur." ], "parties": [ "KAYLOR B. ROBINSON; BRENDA M. BELL; DANNY McGEE; JIMMY McGEE; WILLIAM DAMEWOOD; NANCY McGEE; MAZZLE MEMORY; MARTHA WHITED; and MARY BROWN, Plaintiffs v. FOREST CREEK LIMITED PARTNERSHIP; THORTON VENTURES, LLC and URBAN PIPELINE, INC., Defendants" ], "opinions": [ { "text": "STEPHENS, Judge.\nFactual and Procedural Background\nIn 1919, John R. Magee and his wife Mollie W. Magee were interred in a small burial ground located on a large tract of land in Wake County. The land was later sold in separate parcels, but was recombined when a member of the Wadford family purchased the entire tract in the mid-1940s. The Wadford family owned the entire tract until 1999, when they sold approximately 80 acres of the tract to Thorton Ventures, LLC (\u201cThorton Ventures\u201d). Thorton Ventures combined the tract purchased from the Wadford family with a small, neighboring tract and separated that combined tract into nine lots to be developed for residential use. In 2001, Thorton Ventures sold two of the lots, Lot 3 and Lot 4, to Forest Creek Limited Partnership (\u201cForest Creek\u201d); Forest Creek developed an apartment complex on its two lots. Thorton Ventures developed single-family homes on several of the remaining lots.\nIn 2005, Kaylor B. Robinson (\u201cRobinson\u201d), a great-granddaughter of John R. Magee who had recently begun a quest to ascertain the whereabouts or resting places of her extant and deceased relatives, learned of John R. and Mollie W. Magee\u2019s interment in the property formerly owned by the Wadford family. Robinson, along with Brenda M. Bell (\u201cBell\u201d), a granddaughter of John R. Magee, petitioned the Wake County Clerk of Superior Court for an order \u201callowing [Robinson and Bell] and their designees to enter the property of [Forest Creek] to discover, restore, maintain, and visit a grave site reasonably believed to be located on such property.\u201d Pursuant to a consent order entered in that action, Robinson and Bell were granted access to Forest Creek\u2019s property \u201cfor the purpose of discovering the exact location of the grave of [Robinson\u2019s and Bell\u2019s] ancestor John R. Magee.\u201d With help from an archaeologist, Robinson and Bell ultimately located on Lot 4 what appeared to be the remains of at least two adults; there were no gravestones marking the location where the remains were discovered.\nBecause Robinson had received information that John R. and Mollie W. Magee were buried below two gravestones bearing their names and that the burial ground was surrounded by a wrought-iron gate, which was still upright as late as 1999, Robinson, along with Bell and eight other grandchildren of John R. Magee (collectively, \u201cPlaintiffs\u201d), instituted the present action against Forest Creek in Orange County Superior Court, seeking (1) preliminary and permanent injunctions prohibiting Forest Creek from preventing Plaintiffs from accessing, maintaining and installing grave markers on the grave sites; (2) recovery of expenses incurred in locating and obtaining access to the grave site; and (3) actual and punitive damages for Forest Creek\u2019s desecration of the grave sites by removing the gravestones above, and fence around, the burial site. With the consent of the parties, the special proceeding in Wake County was transferred to Orange County Superior Court and consolidated with the present action. Plaintiffs later amended their complaint to include desecration claims against Thorton Ventures and Urban Pipeline, Inc. (\u201cUrban Pipeline\u201d), whose predecessor Carolina Construction and Grading, Inc. (\u201cCarolina Construction\u201d) was responsible for the grading on several of the lots developed by Thorton Ventures. According to the Record on Appeal, \u201cPlaintiffs resolved all of their claims against Forest Creek and they are no longer parties to this case,\u201d leaving Plaintiffs\u2019 desecration claims against Thorton Ventures and Urban Pipeline as the only remaining claims in this action.\nOn 10 June 2010, Thorton Ventures and Urban Pipeline (collectively, \u201cDefendants\u201d) filed a motion for summary judgment. The motion was heard on 14 July 2010 before the Honorable Lucy Noble Inman in Orange County Superior Court. Following the hearing, the trial court granted summary judgment for Defendants in an order entered 16 July 2010. On 5 August 2010, Plaintiffs gave notice of appeal to this Court.\nDiscussion\nSummary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2009). \u201cThe showing required for summary judgment may be accomplished by proving an essential element of the opposing party\u2019s claim does not exist... or by showing through discovery that the opposing party cannot produce evidence to support an essential element of her claim.\u201d Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citation omitted).\nIn this case, Plaintiffs are asserting a claim for grave desecration. In King v. Smith, 236 N.C. 170, 72 S.E.2d 425 (1952), our Supreme Court acknowledged a plaintiff\u2019s cause of action \u201cto recover damages for the wrongful desecration of the graves of plaintiffs\u2019 ancestors\u201d \u201cin violation of [N.C. Gen. Stat. \u00a7] 65-15.\u201d Id. at 170, 72 S.E.2d at 425. Although section 65-15 was repealed in 1971, that same year the provisions of section 65-15 were transferred to section 65-13, which was amended by the same session law that repealed section 65-15. Act of July 8, 1971, ch. 797, secs. 1-2, 1971 N.C. Sess. Laws 1035, 1035-37. In 2007, the legislature repealed section 65-13, but enacted section 65-106, which was identical to the newly-repealed section 65-13. Act of June 27, 2007, ch. 118, secs. 1, 4, 2007 N.C. Sess. Laws 188, 190-93. The provisions of current section 65-106 are substantially similar to those of section 65-15 that were effective when our Supreme Court decided King. Compare N.C. Gen. Stat. \u00a7 65-106 (2009); N.C. Gen. Stat. \u00a7 65-15 (1951). As such, we conclude that the civil cause of action \u201cto recover damages for wrongful desecration of the graves of [a plaintiff\u2019s] ancestors\u201d as acknowledged in King is still a viable action in this State. See King, 236 N.C. at 170, 72 S.E.2d at 425.\nWe note, however, that neither King, nor section 65-106, nor any other case decided in North Carolina, delineates the elements of a civil cause of action for wrongful desecration of a gravesite. Nevertheless, without contemplating all the elements that may be required for a successful desecration claim, we think it obvious that one essential element of such a claim must be that the defendant engaged in some act of desecration. See Rodman v. Mish, 269 N.C. 613, 615, 153 S.E.2d 136, 138 (1967) (quoting \u201c130 A.L.R. 259\u201d and recognizing that \u201cthe heirs of a decedent at whose grave a monument has been erected, or the person who rightfully erected it, could recover damages from one who wrongfully injured or removed it\u201d (emphasis added)); King, 236 N.C. at 170-71, 72 S.E.2d at 425-26 (stating that allegations that defendant \u201cdestroyed said graves and exposed the remains of their said ancestors by leveling off the hill on which the graveyard was located\u201d were \u201csufficient to constitute a cause of action for the wrongful desecration of the graves\u201d (emphasis added)); Perry v. Cullipher, 69 N.C. App. 761, 763, 318 S.E.2d 354, 356 (1984) (\u201cThe gravamen of an action for the desecration of a grave is . . . for mental suffering for the disturbance of the final resting place for a loved one.\u201d (emphasis added)); see also Hairston v. General Pipeline Constr., Inc., 704 S.E.2d 663, 673 (W. Va. 2010) (listing as an element of a common law cause of action for grave desecration that \u201cthe defendant proximately caused, either directly or indirectly, defacement, damage, or other mistreatment of the physical area of the decedent\u2019s grave site or common areas of the cemetery in a manner that a reasonable person knows will outrage the sensibilities of others\u201d (emphasis added)).\nIn this case, Plaintiffs allege in their amended complaint that \u201cPlaintiffs are informed and believe that\u201d Defendants \u201cdesecrated the grave sites during the grading portion of Defendants\u2019 development.\u201d Plaintiffs\u2019 only support for this allegation of desecration is Robinson\u2019s deposition testimony that on 7 April 2008, she spoke with Tom Beebe (\u201cBeebe\u201d), a part owner of both Thorton Ventures and Urban Pipeline\u2019s predecessor Carolina Construction, who told Robinson that he \u201cpersonally graded everything\u201d \u201c[o]n the left-hand side\u201d or north side of Thorton Road. Plaintiffs contend that this statement by Beebe creates a genuine issue of material fact as to Defendants\u2019 alleged desecration of the gravesite. We disagree. Certainly the existence of conduct by Defendants constituting grave desecration is a material fact. However, to maintain a genuine issue as to that fact, Plaintiffs must forecast substantial evidence of the existence of that fact. Dobson, 352 N.C. at 83, 530 S.E.2d at 835 (\u201cA \u2018genuine issue\u2019 is one that can be maintained by substantial evidence.\u201d). This Plaintiffs have not done. In our view, Beebe\u2019s alleged statement, taken as true, does not serve as substantial evidence that Beebe, on behalf of one or both Defendants, graded the land where the gravesite is located.\nBeebe\u2019s statement that he graded the land on the \u201cleft-hand side\u201d or north side of Thorton Road logically refers only to the land actually on the north side of Thorton Road and not to all land north of Thorton Road. As discussed above, the gravesite is located in Lot 4 (the northwest quadrant of the Thorton Commons Drive horseshoe), which is north of Thorton Road, but which does not abut the north side of Thorton Road. Between Lot 4 and Thorton Road is Lot 6, the southwest quadrant of the Thorton Commons Drive horseshoe, which was developed by Thorton Ventures.\nThis interpretation is substantially corroborated by Beebe\u2019s own deposition testimony, in which Beebe asserted that (1) Thorton Ventures owned Lot 6 and Lot 7 (the southern quadrants of the Thorton Commons Drive horseshoe) and \u201chired someone to do the grading there\u201d; (2) Lot 4 was sold to Forest Creek and Thorton Ventures \u201cdid not do any of the grading on [Lot] 4\u201d; and (3) the grading on Lot 4 was done by Jones Brothers, a subcontractor working for Forest Creek\u2019s contractor. Furthermore, Lynn Craig, a part-owner of Carolina Construction, testified in his deposition that Jones Brothers, not Carolina Construction, did the grading for the apartment complex on Lot 3 and Lot 4.\nThe entirety of the evidence in this case, including Beebe\u2019s alleged statement that he graded the property on the \u201cleft-hand side\u201d of Thorton Road, leads to the conclusion that Lot 4 was graded by a company hired indirectly by Forest Creek, the owner of Lot 4, and not by Defendants. With no evidence showing that Defendants graded the property on which the gravesite is located, or any evidence showing that Defendants desecrated the gravesite in some other way, we must conclude that Plaintiffs have failed to present substantial evidence showing a genuine issue as to the material fact of Defendants\u2019 alleged desecration. Because an act of desecration by Defendants is an essential element of Plaintiffs\u2019 claim, and because Plaintiffs have failed to raise a genuine issue as to the existence of that material fact, we conclude that the trial court properly granted summary judgment for Defendants. Accordingly, the order of the trial court is\nAFFIRMED.\nChief Judge MARTIN and Judge THIGPEN concur.\n. Prior to settlement of the Forest Creek claims, Thorton Ventures, Urban Pipeline, and Forest Creek all filed motions to dismiss portions of Plaintiffs\u2019 claims. The trial court (1) dismissed the desecration claims against Forest Creek, Thorton Ventures, and Urban Pipeline only as to Plaintiff Robinson; and (2) based on the terms of the consent order previously entered in the special proceeding action, ordered that Plaintiffs \u201care barred from seeking to reestablish any permanent cemetery . . . on [] Forest Creek\u2019s property as a portion of their remedy in this action.\u201d\n. In their amended complaint, Plaintiffs allege that Defendants graded the property on which the gravesite is located \u201cin violation of the provisions of [N.C. Gen. Stat. \u00a7] 14-149,\u201d a criminal statute. As correctly noted by Defendants, a civil cause of action is not necessarily created by a violation of a criminal statute. See, e.g., Gillikin v. Springle, 254 N.C. 240, 243, 118 S.E.2d 611, 614 (1961) (holding that while \u201c[p]erjured testimony and the subornation of perjured testimony are criminal offenses,\u201d \u201cneither are torts supporting a civil action for damages.\u201d). Nevertheless, the fact that Plaintiffs mislabeled their cause of action as one arising under a criminal grave desecration statute is not fatal to Plaintiffs\u2019 claim. As Plaintiffs\u2019 complaint gives sufficient notice of the wrong alleged \u2014 i.e., desecration by grading over the gravesite \u2014 Plaintiffs\u2019 incorrect choice of legal theory does not warrant summary judgment so long as Plaintiffs\u2019 allegations \u201care sufficient to state a claim under some legal theory.\u201d See Mims v. Mims, 305 N.C. 41, 61, 286 S.E.2d 779, 792 (1982) (holding that in the summary judgment context, plaintiff\u2019s incorrect legal theory is not fatal to his claim when the allegations in the complaint \u201cgive sufficient notice of the wrong complained of\u2019 and \u201care sufficient to state a claim under some legal theory\u201d). We address the sufficiency of Plaintiffs\u2019 allegations as a civil grave desecration claim infra.\n. The exhibits on appeal show that Thorton Road is an east-west road that intersects United States Highway One in Wake County. Thornton Commons Drive intersects Thorton Road twice and forms a semi-circle, or \u201chorseshoe shape,\u201d on the north side (or \u201cleft-hand side\u201d if one is travelling east from Highway One) of Thorton Road. The land inside Thorton Commons Drive is divided into four lots that roughly constitute four quadrants in the horseshoe. The southeast and southwest quadrants, labeled Lot 6 and Lot 7, respectively, abut the north side of Thorton Road and were developed by Thorton Ventures. Lot 4, which constitutes the northwest quadrant, was sold to Forest Creek in 2001; Lot 4, the lot on which the gravesite is located, does not abut Thorton Road.", "type": "majority", "author": "STEPHENS, Judge." } ], "attorneys": [ "Law Office of Robert B. Jervis, RC., by Robert B. Jervis, for Plaintiffs.", "Pinto Coates Kyre & Brown, PLLC, by Deborah J. Bowers and David L. Brown, for Defendants." ], "corrections": "", "head_matter": "KAYLOR B. ROBINSON; BRENDA M. BELL; DANNY McGEE; JIMMY McGEE; WILLIAM DAMEWOOD; NANCY McGEE; MAZZLE MEMORY; MARTHA WHITED; and MARY BROWN, Plaintiffs v. FOREST CREEK LIMITED PARTNERSHIP; THORTON VENTURES, LLC and URBAN PIPELINE, INC., Defendants\nNo. COA11-118\n(Filed 19 July 2011)\nCemeteries\u2014 grave desecration \u2014 summary judgment\nThe trial court did not err in a grave desecration case by granting summary judgment in favor of defendants. There was no evidence showing that defendants graded the property on which the gravesite is located or in some other way desecrated the gravesite.\nAppeal by Plaintiffs from order entered 16 July 2010 by Judge Lucy Noble Inman in Orange County Superior Court. Heard in the Court of Appeals 23 May 2011.\nLaw Office of Robert B. Jervis, RC., by Robert B. Jervis, for Plaintiffs.\nPinto Coates Kyre & Brown, PLLC, by Deborah J. Bowers and David L. Brown, for Defendants." }, "file_name": "0593-01", "first_page_order": 603, "last_page_order": 609 }