An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-234
                       NORTH CAROLINA COURT OF APPEALS

                           Filed:     16 September 2014


Swaps, LLC,

      Plaintiff,

      v.                                          Union County
                                                  No. 09 CVS 674
ASL Properties, Inc., American Store
and Lock # 6, Virginia G. Favreau
and Metrolina Enterprises of Union
County, LLC,

      Defendants.


      Appeal by defendants from order entered 20 September 2013

by Judge     W. Erwin Spainhour           in   Union County Superior Court.

Heard in the Court of Appeals 5 June 2014.


      Kennon Craver,        PLLC,    by    Joel   M.   Craig,    for   plaintiff-
      appellee.

      Law Offices of John T. Burns, by John T. Burns and
      Christopher A. Gray, for defendants-appellees Metrolina
      Enterprises of Union County, L.L.C., and E & O Lesmarchris
      Family Limited Partnership.

      Raynor Law Firm, PLLC, by Kenneth R. Raynor, for
      defendants-appellants ASL Properties, Inc., The Heyward
      Group, and Virginia G. Favreau.


      DAVIS, Judge.
                                        -2-
       ASL   Properties,       Inc.     (“ASL”),         The    Heyward     Group,

(“Heyward”), and Virginia G. Favreau (“Favreau”) (collectively

“Appellants”) appeal from an order granting summary judgment in

favor of Plaintiff Swaps, LLC (“Swaps”).                 After careful review,

we affirm the trial court’s order.

                              Factual Background

       ASL and Swaps own adjoining parcels of land in the Garrett-

Fisher    commercial      subdivision    located    in    Union   County,   North

Carolina.     ASL owns Lots #3 and #4 of the subdivision, and Swaps

owns Lot #5.       Prior to 9 January 2002, Metrolina Enterprises of

Union County, LLC (“Metrolina”) owned Lot #5, with access to Lot

#5 being provided by a driveway built on Lot #3.                     The access

route is described on a plat as a “30 foot easement right of

way,” and is the only access route from Lot #5 to U.S. Highway

601, which runs along the eastern boundary of Lots #3 and #4.

The easement has been used continuously by the owners of Lot #5

since 9 January 2002.          On 21 December 2007, Swaps recorded a

deed evidencing its purchase of Lot #5, along with the access

driveway, from Metrolina.

       On 5 March 2009, Swaps filed a verified complaint against

ASL,     Favreau   (its    registered     agent),    and       Metrolina.     The

complaint described a dispute between Swaps and ASL concerning
                                       -3-
the access route across ASL’s property.                  Swaps alleged that on

17 February 2009, ASL had barricaded the access route by sinking

metal poles into the driveway such that vehicles could not pass

through.         In    its     complaint,      Swaps     sought,     inter        alia,

declaratory and injunctive relief providing that it had the sole

and exclusive right to the continued use of the 30 foot easement

at issue and enjoining ASL from interfering with Swaps’ use of

the easement.          In addition, the complaint contained a claim

against Metrolina demanding that it “fulfill its legal duty and

obligations to . . . Swaps by defending the title to the real

property . . . conveyed by Metrolina to Swaps.”                       On 16 April

2009, Swaps filed an amended complaint, joining Heyward — the

manager    of    the    business    operating       on   ASL’s     land     —    as   a

defendant.

    On 24 September 2009, Appellants filed an amended answer

and counterclaims, denying the existence of the easement and

counterclaiming to quiet title to the property and to assert a

trespass claim against Swaps.            On 1 June 2010, Metrolina filed

an answer and crossclaims against the other defendants.

    On     8    May    2013,   Swaps   filed    a   verified       second       amended

complaint, adding E & O Lesmarchris Family Limited Partnership
                                           -4-
(“E & O”) as an additional defendant and contending that the

partners of E & O “are the same as the members of Metrolina[.]”

    The       parties     filed     cross-motions      for      summary     judgment

pursuant      to   Rule   56   of    the    North   Carolina     Rules     of   Civil

Procedure.         On 20 September 2013, the trial court entered an

order   (1)    granting    Swaps’     motion     for   summary     judgment;        (2)

denying    ASL’s      motion   for    summary       judgment;     (3)     issuing     a

permanent injunction in favor of Swaps; (4) dismissing ASL’s

counterclaims with prejudice; (5) declaring that Swaps “has a 30

foot easement across [] ASL’s Lot #3”; and (6) taxing Appellants

with costs and expenses.             Appellants filed a timely notice of

appeal to this Court.

                                      Analysis

    “Our standard of review of an appeal from summary judgment

is de novo; such judgment is appropriate only when the record

shows 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.”

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576

(2008) (citation and quotation marks omitted).

    Appellants contend that the trial court erred in granting

summary judgment in favor of Swaps because (1) there was no

evidence that the original owner of the land intended to reserve
                                        -5-
an easement across Lot #3; (2) Swaps was not in possession of

the land long enough to satisfy the requirements of adverse

possession; and (3) Swaps cannot demonstrate reliance upon the

existence of rights in the access driveway.               Because we conclude

that an easement benefiting Lot #5 was, in fact, reserved, we

hold that summary judgment in favor of Swaps was proper.

      The parcels at issue were originally owned by Clarence E.

Fisher,     Jr.   and   his    wife,   Alta   Mae   Fisher,   and    Stephen   M.

Garrett and his wife, Paulette L. Garrett.                They conveyed this

land to B & F Rental, a North Carolina general partnership, by

means of a deed dated 6 December 1989.              The deed itself makes no

reference to an easement for egress and ingress.                    However, the

deed references and incorporates an unrecorded survey plat by

Walter L. Gordon, dated 2 June 1988 and revised 21 November

1988.      This survey plat shows a “30’ r/w for ingress, egress,

drainage & utilities” extending west along the southern side of

Lot #2, then turning to the south from Lot #2 along the western

side of Lot #3 where it abuts Lot #5, then turning to the east

along the northern side of Lot #4.             Walter L. Gordon and Stephen

Garrett provided affidavit testimony that (1) the 30 foot right

of   way   for    ingress     and   egress,   drainage,   and   utilities      was

depicted on the survey plat dated 2 June 1988 and revised 21
                                        -6-
November 1988; and (2) prior to 9 January 2002, this easement

was in existence and was in use for the benefit of Lot #5.

    The 6 December 1989 deed from the Fishers and Garretts to B

& F Rental expressly references the “unrecorded survey plat by

Walter   L.      Gordon,   NCRLS,     dated   June      2,    1988,   and    revised

November 21, 1988.”            Similarly, the deed from B & F Rental to

ASL, in Schedule A, Tract I, incorporates this same survey by

reference.       Thus, at the time that ASL took possession of the

land, it did so with record knowledge of, and subject to, the

easement.        See Nelms v. Davis, 179 N.C. App. 206, 211, 632

S.E.2d 823, 827 (2006) (“A map or plat referred to in a deed

becomes part of the deed and need not be registered.                    Therefore,

as long as the landowner has notice of the plat through his

deed, the plat does not have to be recorded in order to effect a

right    of      way    dedication.”    (citation        and    quotation      marks

omitted)); Price v. Walker, 95 N.C. App. 712, 716-17, 383 S.E.2d

686, 689 (1989) (holding that property owner took tract of land

subject to easement appurtenant for ingress and egress where

survey     map    expressly     referenced    in     conveyance       showed      such

easement burdening tract).

    ASL       argues    that    its   property     is   not    burdened      by   the

easement      because    subsequent     survey     plats      drafted   by     Gordon
                                             -7-
eliminated the depiction of the easement and “the plat provided

to ASL’s predecessor in title did not show the easement.”                              ASL

also   contends        that     the   deed    to    ASL’s      predecessor     “did    not

mention the reservation of an easement in its deed” such that

ASL’s chain of title did not put it on notice of the easement.

ASL asserts that based on these facts, it — rather than Swaps —

was entitled to summary judgment.

       ASL’s argument, however, ignores the legal principle that

“a map or plat, referred to in a deed, becomes a part of the

deed   as   if    it     were    written      therein      .   .   .   .”    Stanley    v.

Laughter, 162 N.C. App. 322, 326, 590 S.E.2d 429, 432 (2004)

(citation omitted).             As such, the 2 June 1988 and revised 21

November 1988 survey plat expressly referenced in its deed —

rather than any subsequent surveys — controls in determining

whether ASL took the property subject to an easement.                          Moreover,

an express reference to the easement is not necessary to reserve

an easement if the deed expressly references the survey plat

containing the easement.              See id. at 327, 590 S.E.2d at 432 (“As

defendant’s       deed    conveying         the    1.46    acre    tract    specifically

referred     to    the     plat       map    containing        the     sixty-foot     wide

easement, the map became a part of the deed as if it were

written     therein.”           (citation         and     internal     quotation    marks
                                -8-
omitted)).   Therefore, we conclude that Swaps was entitled to

summary judgment.

                             Conclusion

    For the reasons stated above, the trial court’s order is

affirmed.

    AFFIRMED.

    Judges HUNTER, JR. and ERVIN concur.

    Report per Rule 30(e).

    Judge HUNTER, JR. concurred in this opinion    prior to 6

    September 2014.
