                            NO. COA14-286

                   NORTH CAROLINA COURT OF APPEALS

                       Filed: 7 October 2014


JOHNNIE LEE LAWSON and BARBARA G.
LAWSON,
     Plaintiffs,

    v.                               Person County
                                     No. 10 CVS 828
NOEL LAWSON, HESTER LAWSON JONES,
KWAME LAWSON, CLEOTIS LAWSON, JR.
and wife, KATRINA LAWSON and PERRY
LAWSON,
     Defendants.


    Appeal by plaintiffs from order entered 16 July 2013 by

Judge W.O. Smith, III, in Person County Superior Court.    Heard

in the Court of Appeals 26 August 2014.


    Oertel, Koonts & Oertel, PLLC, by Geoffrey K. Oertel, for
    plaintiff-appellants.

    The Law Offices of Brian L. Crawford, P.A., by Brian L.
    Crawford, for defendant-appellees.


    BRYANT, Judge.


    Where the trial court properly considered the evidence and

the referee’s findings of fact and conclusions of law, we affirm

the decision of the trial court to affirm the referee’s report

in its entirety.
                                          -2-
    On    18    November       2010,    plaintiffs    Johnnie      Lee    Lawson    and

Barbara G. Lawson filed a complaint against Noel Lawson, Hester

Lawson    Jones,    Kwame      Lawson,     Cleotes    Lawson,      Jr.,    and      wife

Katrina   Lawson,    and       Perry    Lawson   (“defendants”).          Plaintiffs

brought claims for quiet title and trespass to real property

against all defendants, and a claim for destruction of trees

against    defendant       Perry       Lawson.       Plaintiffs      alleged        that

defendants had trespassed onto, erected buildings and fences on,

and removed trees from plaintiffs’ property “without consent or

permission.”        On    18    January     2011,    defendants      answered        and

counterclaimed for abuse of process, malicious use of process,

compensatory damages, and punitive damages.

     On    23    March,     plaintiffs      filed     a   reply    and    motion      to

dismiss defendants’ counterclaims.                  On 24 October, defendants

filed a motion for summary judgment.                  Plaintiffs then filed a

motion    for   reference        for    appointment       of   a   referee     on     28

November, which was granted by order of the trial court on 28

March 2012.        The trial court entered an amended order on 24

April after it was determined that the surveyor appointed as the

referee had merged with another surveying company.

    On 18 June, the referee filed a report which concluded that

the placement of the disputed property line was correct as it
                                            -3-
was currently designated by physical boundary markers and that

based on this determination of the property line, defendants had

not     committed        trespass    or    damage        to    plaintiffs’      property.

Plaintiffs timely filed a motion for exceptions to findings of

referee on 16 July.              Defendants filed a motion for judgment on

the pleadings on 21 September.

       On 3 October 2012, a hearing was held on plaintiffs’ motion

for exceptions to findings of referee.                        In an order entered 16

July 2013, the trial court upheld the findings of the referee

and concluded that the plat map generated by the referee should

be    entered       as   the    judgment    and        resolution    for      plaintiffs’

complaint.      Plaintiffs appeal.

                               ______________________________

       On appeal, plaintiffs raise sixteen issues which can be

divided into two central issues: (I) whether the trial court

erred    by    failing     to    consider    the       evidence    and   give    its   own

opinion and conclusion as to the referee’s report; and (II)

whether       the    referee      erred     in     its        findings   of     fact   and

conclusions of law.

                                                  I.

       Plaintiffs argue that the trial court erred by failing to

consider the evidence and give its own opinion and conclusion as
                                     -4-
to the referee’s report.          Specifically, plaintiffs raise three

arguments as to whether the trial court: abused its discretion

in    confirming   the       referee’s   report   without    independently

evaluating the evidence and giving its own opinion; erred by

failing to make specific findings of fact and conclusions of law

in confirming the referee’s findings; and erred by failing to

make specific findings of fact and conclusions of law during its

independent evaluation of the referee’s report.             As these three

issues are closely related and plaintiffs cite little case law

in support of them, we address them as a single argument.

      Pursuant to our North Carolina Rules of Civil Procedure,

“the court may, upon the application of any party or on its own

motion, order a reference in the following cases: . . . [w]here

the   case    involves   a    complicated   question   of    boundary,   or

requires a personal view of the premises.”             N.C. Gen. Stat. §

1A-1, Rule 53(a)(2)(c) (2013).           Where, as here, a party takes

exception to the referee’s report,

             it is the duty of the [trial] judge to
             consider the evidence and give his own
             opinion and conclusion, both upon the facts
             and the law. He is not permitted to do this
             in a perfunctory way, but he must deliberate
             and decide as in other cases — use his own
             faculties in ascertaining the truth and form
             his own judgment as to fact and law. This is
             required not only as a check upon the
             referee and a safeguard against any possible
                                          -5-
              errors on his part, but because he cannot
              review the referee's findings in any other
              way.

Quate v. Caudle, 95 N.C. App. 80, 83, 381 S.E.2d 842, 844 (1989)

(citation and emphasis omitted).                “After conducting this review,

the   trial    court   may   adopt,   modify,       or   reject   the   referee's

report   in    whole   or    in   part,    remand    the   proceedings    to   the

referee, or enter judgment.”              Gaynor v. Melvin, 155 N.C. App.

618, 622, 573 S.E.2d 763, 766 (2002) (citations omitted).

                   In reviewing the trial court's judgment
              entered   on   the    referee's   report,   the
              findings of fact by a referee, approved by
              the trial [court], are conclusive on appeal
              if supported by any competent evidence.
              Similarly, as the trial court has the
              authority to affirm, modify, or disregard
              the referee's findings and make its own
              findings   upon    review   of   the   parties'
              exceptions    to    the    referee's    report,
              different or additional findings by the
              court are binding on appeal if they are
              supported   by   competent   evidence.      Any
              conclusions of law made by the referee,
              however, are reviewed de novo by the trial
              court, and the trial court's conclusions are
              reviewed de novo by the appellate court.

Cleveland Constr., Inc. v. Ellis-Don Constr., Inc., 210 N.C.

App. 522, 531—32, 709 S.E.2d 512, 520                    (2011) (citations and

quotation omitted).
                                            -6-
       Plaintiffs        contend     the   trial    court    erred    by      failing    to

consider the evidence and give its own opinion and conclusion

both as to the evidence and the law.                 We disagree.

       In    his    report,    the     referee      noted    that     he      interviewed

plaintiffs         and   defendants,        researched      the   deed        history    of

plaintiffs’ property, and conducted fieldwork of the property.

This     fieldwork       included     walking       the    property      to     look    for

physical boundary markers, utilizing both GPS observations and

traditional survey methods, noting “numerous signs of continuous

long     term       possession        by     both    the     plaintiff          and     the

defendants[,]” and comparing the referee’s property measurements

to those recorded in deeds held by plaintiffs and defendants.

As such, it appears that the referee’s findings of fact were

based on competent evidence. Moreover, plaintiffs have failed to

provide any evidence on appeal to disprove this determination.

Although the trial court did not make its own findings of fact

in     its   order       upholding    the     referee’s      report,       it    was    not

obligated to; rather, the trial court could, as it did here,

chose to affirm the referee’s report in whole.                             See id.       As

such, the referee’s findings                 of fact, approved by the trial

court and supported by the evidence, are binding on appeal.
                                             -7-
       In reviewing the referee’s conclusions of law, the trial

court was to consider these conclusions de novo.                       See id.       The

trial court, in its order, made the following conclusion of law:

“The Court hereby orders the                  Report of the Referee entitled

‘Final     Plat     Court[-]ordered           Survey       for   [plaintiffs]        and

[defendants]’ by [the referee] dated June 14, 2012 to be entered

into     the    record    as      the   judgment     and     resolution    for     this

Complaint.”         As   such,       plaintiffs’    contention     that    the     trial

court     was    required      to     give    its   own     separate     opinion     and

conclusion as to the referee’s report is without merit.

       Here, upon plaintiffs’ exceptions to the referee’s report,

the trial court conducted a hearing and evaluated the evidence.

The trial court, by ordering the referee’s report to be entered

into     judgment    as     the      resolution     of     plaintiffs’     complaint,

clearly signaled its opinion and conclusion that, based on the

evidence       presented,      the    referee’s     report   was   the    appropriate

resolution of plaintiffs’ boundary dispute.                      Moreover, although

we cannot rely on a transcript1 to determine whether the trial

court made oral statements of opinion and conclusions of law



1
  Although plaintiffs ordered a transcript of the trial court’s
hearing to be filed with this Court, a transcript could not be
prepared as the court reporter’s notes from the hearing were
deemed lost.   As such, the record on appeal does not contain a
transcript of the hearing.
                                     -8-
during the hearing, it is well-established that “[w]here the

record is silent upon a particular point, it will be presumed

that the trial court acted correctly in performing his judicial

acts and duties.”           State v. Fennell, 307 N.C. 258, 262, 297

S.E.2d 393, 396 (1982) (citations omitted).                Accordingly, the

trial court did not err in affirming the referee’s report as the

judgment and resolution for plaintiffs’ complaint.              Plaintiffs’

argument is overruled.

                                     II.

    Plaintiffs       next    argue   that   the    referee   erred   in   its

findings     of    fact   and   conclusions   of    law.      Specifically,

plaintiffs raise thirteen arguments as to whether the referee

erred in its findings of fact and conclusions of law regarding

the referee’s use of physical boundary markers, signs of long-

term possession, and research into and use of deeds other than

plaintiffs’ deed.         However, as plaintiffs have failed to raise

issues 4—10 in their brief, these arguments are therefore deemed

abandoned.        See N.C. R. App. P. 28(b)(6) (2014) (“Issues not

presented in a party’s brief, or in support of which no reason

or argument is stated, will be taken as abandoned.”).

    As to plaintiffs’ remaining issues contending the referee

erred in its findings of fact and conclusions of law, these
                                            -9-
issues   lack    merit.       As     discussed      in   Issue     I,    the     referee’s

findings of fact are deemed binding on appeal if supported by

competent    evidence     and      approved       by     the    trial     court.        The

referee’s conclusions of law are reviewed de novo by the trial

court, and the trial court’s conclusions of law are reviewed de

novo on appeal to this Court.                See Cleveland Constr., 210 N.C.

App. at 531—32, 709 S.E.2d at 520.                  Our review finds no error in

the conclusions reached by the referee and by the trial court.

    Here,       the   trial    court,       after      conducting        a    hearing    on

plaintiffs’     exceptions      to    the    referee’s         report,       affirmed   the

referee’s report in its entirety and ordered the referee’s plat

map to be entered as the judgment and resolution of plaintiffs’

complaint.      The record indicates that the referee’s report was

supported by competent evidence and, although no transcript of

the hearing was filed, plaintiffs have not shown that the trial

court failed to properly review the evidence and the referee’s

findings of fact and conclusions of law before entering its

order    affirming     and    adopting        the      referee’s        report    in    its

entirety.        As   indicated,       by    ordering      the     referee’s       report

entered into judgment, the trial court indicated its conclusion

that the resolution of the boundary dispute was appropriately
                             -10-
resolved by the referee.   Accordingly, plaintiffs’ argument is

overruled.

    Affirmed.

    Chief Judge McGEE and Judge STROUD concur.
