              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA15-1151

                                  Filed: 19 April 2016

Halifax County, No. 13 CVS 624

ALBERT S. DAUGHTRIDGE,                JR.   and    MARY      MARGRET      HOLLOMAN
DAUGHTRIDGE, Plaintiffs,

             v.

THE NORTH CAROLINA ZOOLOGICAL SOCIETY, INC., Defendant.


      Appeal by plaintiffs and cross-appeal by defendant from order entered 11

December 2014 and judgment entered 29 June 2015 by Judges Alma L. Hinton and

Marvin K. Blount, III, respectively, in Halifax County Superior Court. Heard in the

Court of Appeals 10 March 2016.


      Boxley, Bolton, Garber & Haywood, by Ronald H. Garber, for plaintiffs.

      Charles S. Rountree, III, for defendant.


      GEER, Judge.


      Plaintiffs Albert S. Daughtridge, Jr. and Mary Margret Holloman Daughtridge

appeal from a judgment quieting title in favor of defendant, the North Carolina

Zoological Society, Inc. Plaintiffs contend the trial court erroneously overruled a

previous order by a different superior court judge who had denied defendant’s motion

for summary judgment on the same issue. We agree with plaintiffs and find the

procedural circumstances identical to those of Iverson v. TM One, Inc., 92 N.C. App.

161, 374 S.E.2d 160 (1988). Accordingly, we vacate the judgment and remand to the

trial court for trial on the issues presented in plaintiffs’ complaint.
                   DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                  Opinion of the Court



                                        Facts

       On 13 September 2010, defendant recorded a general warranty deed in the

Halifax County Public Registry to a 25-acre tract of land which was granted in fee

simple by John B. Shields. Included in the deed was a reference to a map of the 25-

acre tract prepared by a surveyor on 10 August 2010. After discovering this deed in

2013, plaintiffs recorded 14 non-warranty deeds describing property by metes and

bounds that also claimed title to land described by the survey referenced in

defendant’s deed. Plaintiffs then filed a declaratory judgment action and a notice of

lis pendens in Halifax County Superior Court against defendant on 3 July 2013 for

the purpose of quieting title to this disputed real property. Defendant filed an answer

and its own counterclaim to quiet title on 17 September 2013.

       The real property in dispute is located between the town of Scotland Neck and

the Roanoke River, abutting the southern boundary of White’s Mill Pond. All parties

seem to agree that plaintiffs’ property is bounded on the east and northeast by the

Kehukee Swamp Run, a water course that runs south through White’s Mill Pond and

then in a southeasterly direction. The issue at the heart of this case is which party

has proper record title to an approximately five-acre tract of land determined by a

description of the course of the Kehukee Swamp Run in each parties’ respective

chains of title.




                                         -2-
                  DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                  Opinion of the Court



        In conducting discovery, the parties produced substantial documentation

regarding their respective chains of title dating as far back as 1799, as well as

documentation regarding the exact location and course of the Kehukee Swamp Run.

On 13 August 2014, defendant filed a motion for summary judgment, which came on

for hearing on 3 November 2014 before Judge Alma L. Hinton. After reviewing

detailed evidence regarding each parties’ respective claims to chain of title to the

disputed real property, Judge Hinton determined that summary judgment was not

appropriate. Judge Hinton, therefore, entered an order on 11 December 2014 denying

defendant’s motion for summary judgment, and trial was calendared for 13 April

2015.

        Subsequent to the denial of defendant’s motion for summary judgment,

plaintiffs deposed defendant’s surveyor and defendant’s closing attorney. Plaintiffs

also filed with the court an affidavit from an expert witness expressing an opinion on

the exact course of the Kehukee Swamp Run. On 15 April 2015, after conducting a

pre-trial hearing spanning three days, Judge Marvin K. Blount, III took the case

under advisement “to determine whether or not the case needs to be decided . . . by a

jury or whether [there] are questions of law that will be decided by the judge.” After

hearing further arguments on 21 May 2015, Judge Blount directed defendant’s

counsel to prepare a judgment quieting title in favor of defendant as a matter of law.




                                         -3-
                      DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                         Opinion of the Court



Judge Blount entered that judgment on 29 June 2015, and plaintiffs timely appealed

the judgment to this Court.1

                                                   I

        Plaintiffs argue that Judge Blount was precluded from quieting title in favor

of defendant as a matter of law on 29 June 2015 because Judge Hinton had previously

denied defendant’s motion for summary judgment on the very same issue on 11

December 2014. We agree.

        Plaintiffs cite generally to Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189

S.E.2d 484, 488 (1972), for the well-established rules that “no appeal lies from one

Superior Court judge to another; that one Superior Court judge may not correct

another’s errors of law; and that ordinarily one judge may not modify, overrule, or

change the judgment of another Superior Court judge previously made in the same

action.” It is well established that “[o]ne superior court judge may only modify,

overrule, or change the order of another superior court judge where the original order



        1There   is also a dispute regarding whether defendant owns the property to the east of the
Kehukee Swamp Run that is the subject of separate litigation between defendant and Virgil Leggett
in Halifax County Superior Court, file no. 14 CVS 1027. Hearings in 14 CVS 1027 were calendared in
Halifax County Superior Court for the same date as the hearings in this action between the parties to
this appeal. The trial court ultimately entered partial summary judgment in favor of the North
Carolina Zoological Society in 14 CVS 1027. Plaintiffs in this case and Mr. Leggett have filed a petition
for writ of certiorari in this appeal in 13 CVS 624, seeking review of the summary judgment order
entered in 14 CVS 1027. Because plaintiffs were not parties in 14 CVS 1027, they may not seek review
of the order entered in that case. See Bailey v. State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000)
(“A careful reading of Rule 3 [of the Rules of Appellate Procedure] reveals that its various subsections
afford no avenue of appeal to either entities or persons who are nonparties to a civil action.”).
Moreover, Mr. Leggett may not seek review in this appeal of an order entered in an entirely different
proceeding. We, therefore, have denied plaintiffs’ and Mr. Leggett’s petition for writ of certiorari.

                                                  -4-
                  DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                    Opinion of the Court



was (1) interlocutory, (2) discretionary, and (3) there has been a substantial change

of circumstances since the entry of the prior order.” First Fin. Ins. Co. v. Commercial

Coverage, Inc., 154 N.C. App. 504, 507, 572 S.E.2d 259, 262 (2002).

      “In the granting or denial of a motion for summary judgment, the court is

ruling as a matter of law, and is not exercising its discretion.” Carr v. Great Lakes

Carbon Corp., 49 N.C. App. 631, 633, 272 S.E.2d 374, 376 (1980). Because a denial

of a motion for summary judgment is not discretionary, “[t]he aggrieved party may

not seek relief by identical motion before another superior court judge.” Id. at 634,

272 S.E.2d at 376. Furthermore, “one trial judge ‘may not reconsider and grant a

motion for summary judgment previously denied by another judge.’ ” Iverson, 92 N.C.

App. at 164, 374 S.E.2d at 163 (quoting Smithwick v. Crutchfield, 87 N.C. App. 374,

377, 361 S.E.2d 111, 113 (1987)).

      Defendant attempts to circumvent these established rules by labeling Judge

Blount’s judgment a “directed verdict.” Defendant cites to Clinton v. Wake Cnty. Bd.

of Educ., 108 N.C. App. 616, 621, 424 S.E.2d 691, 694 (1993), for the proposition that

“a pretrial order denying summary judgment has no effect on a later order granting

or denying a directed verdict on the same issue or issues.” In Clinton, “[a]ll motions

for summary judgment were denied . . . and the case proceeded to trial . . . .” Id. at

620, 424 S.E.2d at 693. The plaintiff in Clinton presented his evidence at trial before

a jury and then the trial court directed a verdict in favor of the defendant. Id.



                                           -5-
                  DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                  Opinion of the Court



      Clinton has no relevance to the case before us. Here, Judge Blount did not

grant a directed verdict during trial following the presentation of evidence. See

Buckner v. TigerSwan, Inc., ___ N.C. App. ___, ___, 781 S.E.2d 494, 498 (2015) (“ ‘[I]t

is well settled that a motion for a directed verdict only is proper in a jury trial.’ ”

(quoting Dean v. Hill, 171 N.C. App. 479, 482, 615 S.E.2d 699, 701 (2005))). Instead,

he conducted a pre-trial hearing to determine whether there were genuine issues of

fact appropriate for a jury trial or if the case could be decided as a matter of law.

Whether labeled as such or not, Judge Blount purported to grant summary judgment

to defendant.

      The procedural circumstances in this case are identical to those in Iverson. In

Iverson, after one superior court judge had denied defendant’s motion for summary

judgment, a subsequent superior court judge “conducted, at a pretrial conference, a

hearing in the absence of the jury to determine whether a material issue of fact

existed. This was the issue which had previously been presented to and decided by

[the original judge presiding over defendant’s summary judgment motion].” 92 N.C.

App. at 164, 374 S.E.2d at 163. This Court held that the procedure used by the

subsequent presiding judge, “while not labeled a hearing on summary judgment, was

exactly that.” Id. at 165, 374 S.E.2d at 163. Because the subsequent judgment

overruled the original denial of summary judgment, this Court vacated the




                                         -6-
                   DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                    Opinion of the Court



subsequent judgment and remanded the case back to the superior court for trial on

the issues presented in the plaintiff’s complaint. Id.

       Because this case is materially indistinguishable from Iverson, we hold that

Judge Blount’s entry of judgment in defendant’s favor prior to trial had the effect of

overruling Judge Hinton’s earlier denial of defendant’s motion for summary

judgment. We, therefore, must vacate Judge Blount’s judgment and remand to the

trial court for trial on the parties’ actions to quiet title to the disputed real property.

Id. See also Cail v. Cerwin, 185 N.C. App. 176, 184, 648 S.E.2d 510, 516 (2007)

(holding that “only when the legal issues differ between the first motion for summary

judgment and a subsequent motion may a trial court hear and rule on the subsequent

motion”).

                                            II

       Defendant filed a notice of cross-appeal from Judge Hinton’s order denying

defendant’s motion for summary judgment that was untimely under Rule 3(b)(3) of

the Rules of Appellate Procedure.         Because of the untimeliness of the notice,

defendant has also filed a petition for writ of certiorari seeking review of that same

order. Defendant, however, failed to file an appellant’s brief and instead simply

included its argument on its cross issues in its appellee brief.

       Because defendant’s notice of cross-appeal was untimely, we have granted

plaintiffs’ motion to dismiss defendant’s cross-appeal. Further, by failing to file an



                                           -7-
                   DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                    Opinion of the Court



appellant’s brief in support of the cross-appeal that is the subject of the petition for

writ of certiorari, defendant precluded plaintiffs from being able to fully respond with

an appellees’ brief. It is well established that this Court will not consider a cross-

appeal when the cross-appellant has failed to file an appellant’s brief. See, e.g.,

Alberti v. Manufactured Homes, Inc., 329 N.C. 727, 739, 407 S.E.2d 819, 826 (1991)

(“Plaintiffs gave proper notice of appeal on these issues but did not file an appellant’s

brief within the time allowed under Rule 13 of the North Carolina Rules of Appellate

Procedure. Rather, they attempted to argue the issues in their appellee’s brief. The

Court of Appeals, therefore, correctly held that plaintiffs had failed to preserve any

of these questions for its review, and we affirm this decision.”); Countrywide Home

Loans, Inc. v. Reed, 220 N.C. App. 504, 508, 725 S.E.2d 667, 670 (2012) (“Because

Plaintiff did not file a cross-appellant’s brief in this case, we grant Defendants’ motion

to dismiss Plaintiff’s cross-appeal[.]”).

       Moreover, defendant’s purported cross-appeal and petition for writ of certiorari

seek review of an interlocutory order. In Cail, 185 N.C. App. at 185-86, 648 S.E.2d

at 516-17, once this Court concluded that a superior court judge improperly granted

summary judgment after a prior judge had denied a motion for summary judgment,

the Court declined to address the defendant’s arguments that the initial denial of

summary judgment should be reversed. The Court noted that because the order

denying summary judgment was an interlocutory order, it could only be reviewed



                                            -8-
                      DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                    Opinion of the Court



upon a showing that it affected a substantial right. Id. at 185, 648 S.E.2d at 517.

Because the defendant had failed to make the necessary showing, the Court

dismissed the defendant’s cross-appeal. Id. at 186, 648 S.E.2d at 517.

       Likewise, in this case, defendant has made no attempt to show that Judge

Hinton’s order affects a substantial right. Because of defendant’s failure to file an

appellant’s brief and because defendant has failed to show why an appeal of Judge

Hinton’s order is now necessary, we exercise our discretion to deny its petition for

writ of certiorari.

       It appears, however, that defendant may also be contending in its appellee

brief that its arguments regarding Judge Hinton’s order denying summary judgment

constitute an alternative basis for upholding Judge Blount’s order entering judgment

in defendant’s favor. Rule 28(c) of the Rules of Appellate Procedure allow an appellee,

“[w]ithout taking an appeal,” to “present issues on appeal based on any action or

omission of the trial court that deprived the appellee of an alternative basis in law

for supporting the judgment, order, or other determination from which appeal has

been taken.”

       Plaintiff has, however, appealed from Judge Blount’s 29 June 2015 judgment,

while defendant is challenging a separate order: Judge Hinton’s 11 December 2014

order. In Belmont Land & Inv. Co. v. Standard Fire Ins. Co., 102 N.C. App. 745, 751,

403 S.E.2d 924, 927 (1991), this Court specifically held that when the plaintiff



                                           -9-
                   DAUGHTRIDGE V. THE NC ZOOLOGICAL SOC’Y, INC.

                                  Opinion of the Court



appealed from an order granting summary judgment on one of its claims, defendants

could not seek review of an earlier order denying their motion for summary judgment

on the grounds that the earlier order deprived them of an alternative basis in law for

supporting the summary judgment challenged on appeal. The Court stated simply:

“The error assigned by defendants does not relate to the order . . . from which appeal

has been taken.” Id.

       Because defendant’s arguments do not relate to the order that plaintiffs

appealed, defendant cannot rely on Rules 10(c) and 28(c) as a basis for review of Judge

Hinton’s order. Accordingly, we hold that defendant’s arguments are not properly

before us, and we decline to address them. See also Birmingham v. H&H Home

Consultants & Designs, Inc., 189 N.C. App. 435, 444, 658 S.E.2d 513, 519 (2008)

(declining to consider cross-assignment of error under the predecessor rule to Rule

10(c) because it did “not address the order entered by the trial court from which

plaintiff appeals”).

       VACATED AND REMANDED.

       Judges TYSON and INMAN concur.




                                         - 10 -
