                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1768


ALLEN TOBY HEDGEPETH, As Trustee Under The Allen        Toby
Hedgepeth Declaration of Trust, Dated May 30, 2001,

                Plaintiff - Appellant,

           v.

PARKER’S LANDING PROPERTY OWNERS ASSOCIATION, INCORPORATED,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (2:07-cv-00055-F)


Argued:   May 12, 2010                     Decided:   July 2, 2010


Before GREGORY, Circuit Judge, C. Arlen BEAM, Senior Circuit
Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, and Samuel G. WILSON, United
States District Judge for the Western District of Virginia,
sitting by designation.


Affirmed by unpublished opinion.        Judge Wilson wrote the
opinion, in which Judge Gregory and Senior Judge Beam joined.


ARGUED: Norman Wilson Shearin, Jr., VANDEVENTER BLACK, LLP,
Kitty Hawk, North Carolina, for Appellant. Charles E. Thompson,
II, Elizabeth City, North Carolina, for Appellee.     ON BRIEF:
Allison A. Holmes, VANDEVENTER BLACK, LLP, Raleigh, North
Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.




                                2
WILSON, District Judge:

       Plaintiff-appellant,               Allen        Toby    Hedgepeth     (“Hedgepeth”),

brought an action pursuant to the district court’s diversity

jurisdiction        against            Parker’s           Landing         Property       Owners

Association,        Inc.        (the        “Association”),              defendant-appellee,

seeking a declaratory judgment that he has an easement over an

established     drive          owned       by     the     Association        benefiting        an

adjoining    tract       of    land       he    purchased       at   a    foreclosure        sale.

Alternatively, Hedgepeth sought a judgment declaring that quasi-

estoppel precludes the Association from denying the existence of

that    easement.             The    district          court    entered      a     declaratory

judgment     recognizing            two     historical         easements         but   not     the

easement Hedgepeth claimed and Hedgepeth appealed.                               We affirm.



                                                 I.

       In   1894,    a     tract       of       land    in     Currituck     County,         North

Carolina, was severed from common ownership into two tracts.

The smaller of the two tracts – the “Harbor Shore Tract” – is

bordered on the east by the Currituck Sound.                             The only access to

the Harbor Shore Tract is through the larger tract – Parker’s

Landing     Subdivision         (“Parker’s            Landing”)      –   which    borders      the

Harbor Shore Tract on the west and south.                            U.S. Highway 158, the

primary means of travel in the area, makes up the western border

                                                  3
of Parker’s Landing.            Both Harbor Shore and Parker’s Landing

were used for agricultural purposes until the late 1980s when

steps were taken to develop them for residential use.                        Before

this development, access to the Harbor Shore Tract was available

via two historical easements that cross Parker’s Landing. 1

     In 1987, two brothers, Donnie and Lannie Belangia, along

with their wives (the “Belangias”), purchased the Harbor Shore

Tract intending to develop it into a residential subdivision

called     Harbor     Shore.      At    that   time,    Midgette        Development

Enterprises, Inc. (“MDE”), which was owned by members of the

Midgette      family,    owned     Parker’s     Landing.          The     Belangias

approached the Midgettes to assess their interest in jointly

developing the tracts.            Both the Belangias and the Midgettes

hired William T. Robbins (“Robbins”), a surveyor, to prepare

plats    of   their     respective      properties     and   to   obtain     county

approval for their proposed subdivisions. 2              Robbins succeeded in

obtaining preliminary plat approval for both tracts from the

Currituck      County     Board    of     Commissioners      (the       “Board    of

Commissioners”).          The    Currituck     County    Planning       Board    (the

     1
       These easements, one of which provides ten foot access,
the other twenty-five, are dirt paths that cross over Parker’s
Landing onto the Harbor Shore Tract.
     2
         The  Belangias   and  the   Midgettes  hired  Robbins
independently and later learned that he was working on both of
their proposed subdivisions. (J.A. 203.)


                                          4
“Planning Board”), however, only granted approval of Parker’s

Landing’s final plat because Harbor Shore lacked the fifty foot

access required for development.

     After the Planning Board denied approval of Harbor Shore’s

final   plat,      the    Belangias         continued        negotiating      with    the

Midgettes in an effort to reach an agreement for an easement

over Parker’s Landing’s main road, Parker’s Landing Drive (the

“Drive”).        Despite extensive negotiations and the exchange of

various proposed         agreements,        those     negotiations,       according     to

the deposition testimony of the Midgettes and the Belangias,

ultimately   failed       to   result    in     an    executed      agreement.        Jody

Midgette, MDE’s Vice President, testified that negotiations had

never produced an agreement, that “there was nothing . . . final

ever done” (J.A. 160); Lannie Belangia responded “no” to the

question    of    whether      they   had    ever     come    to    an   agreement     for

access (J.A. 202); and when asked whether negotiations had ever

resulted in written agreements, Donnie Belangia testified: “I

think there [were] some prepared.                    But none were ever signed.”

(J.A.   216-17.)            Left      without        the    access       necessary     for

development,      the    Belangias      permitted          Harbor    Shore    to     enter

foreclosure.

     Before purchasing the property at foreclosure in January of

1993, Hedgepeth claims he:               inspected the property (which he

accessed via one of the historical easements); checked records

                                            5
at the county tax office and courthouse; reviewed statements

contained in minutes of the Board of Commissioners’ meeting of

October     17,    1988,    (the    “Board      Minutes”),     which    state   that

“approval of a permanent easement through Parker’s Landing to

[Harbor Shore] has been proposed and has been signed for the

County Attorney to review”; and examined the 1989 Final Plat of

Parker’s Landing (the “Final Plat”), which contains a note, Note

#7, which cryptically states: “additional area required for 50'

R/W as per agreement with Harbor Shore Subdivision.”                     Hedgepeth,

however, neither conducted a title search, nor contacted either

the Belangias or the Midgettes to inquire about access to the

property.          Only    after    he    purchased    the     property    at    the

foreclosure sale 3 did he contact the County Attorney’s office to

search for the agreement that he claims he inferred from the

cryptic note on the Final Plat.                No one at the County Attorney’s

office knew of the alleged agreement.

      After purchasing the Harbor Shore Tract at the foreclosure

sale, Hedgepeth sent employees to view the property, which they

accessed     via    the    Drive.        The    Midgettes    warned     Hedgepeth’s

employees that they had no right to use the Drive, and if they

did   not   vacate    the    premises,     the     Midgettes    would    have   them

      3
        He assigned his bid to the Hedgepeth Development
Corporation (“HDC”), and he later became trustee for the
property on HDC’s behalf pursuant to a declaration of trust.


                                           6
arrested.      Fourteen      years    after      purchasing      the     Harbor      Shore

Tract,     Hedgepeth      filed     this       diversity    action       against         the

Association    –    the    successor       in     title    to    MDE     to       Parker’s

Landing’s    “common      areas,”    including       the    Drive 4      –       seeking   a

judgment    declaring      that     Parker’s      Landing       is    subject       to     an

easement benefiting the Harbor Shore Tract via the Drive and

declaring    that    quasi-estoppel        precludes       the       Association         from

denying the existence of that easement.

     Hedgepeth moved for summary judgment.                      The district court

denied the motion, but nevertheless concluded that there were no

issues of material fact for trial and proceeded to rule that the

evidence supported neither the easement Hedgepeth claimed nor

the elements of his quasi-estoppel claim.                  Although the district

court rejected Hedgepeth’s claims, it concluded that Parker’s

Landing is subject to two historical easements benefiting the

Harbor     Shore    Tract.        Accordingly,        it    entered          a    judgment

declaring Hedgepeth’s rights as to those historical easements

but not the easement Hedgepeth claimed. 5                   Hedgepeth filed this



     4
       In 2005, the Association became the owner of the “common
areas” of Parker’s Landing, while MDE and the Midgettes retained
plots within the subdivision.
     5
       The district court said the following about the procedural
posture of the case:

     In light of the awkwardness of the standard of review
     applicable  to  a   plaintiff’s  motion  for  summary
(Continued)
                                           7
appeal.   Neither party raises the case’s procedural posture as

an issue on appeal. 6   Rather, Hedgepeth frames the issue simply

as: “Was Hedgepeth conveyed a right-of-way over [the] Drive from

[the Harbor Shore Tract] to U.S. Highway 158 by the final plat

of Parker’s Landing subdivision?”    (Appellant’s Brief at 1.)



                               II.

     Hedgepeth’s opening brief contends that “Note # 7 on the

final plat of the [Parker’s Landing] Subdivision is an express

grant of a right-of-way over the Drive to the [Harbor Shore]

Tract.”   (Appellant’s Brief at 8.)     At oral argument, however,



     judgment in a case to be tried to the court without a
     jury, the court has taken some license in its
     approach.   Regardless of the angle from which this
     case is viewed, or with which party a shifting-burden
     inquiry begins, Hedgepeth, who ultimately must prove
     he is entitled to judgment as a matter of law,
     unequivocally has demonstrated that he cannot do so
     insofar as he seeks declaration of an easement for use
     of Parker’s Landing Drive to subdivide and develop
     [the Harbor Shore Tract].

(J.A. 454-55.)
     6
        Because the denial of Hedgepeth’s motion for summary
judgment is interlocutory, and we have jurisdiction only over
final orders and judgments, we questioned our jurisdiction sua
sponte.    We now conclude, however, that because the judgment
order appealed from had the effect of resolving all issues, it
is a final order.   See Caitlin v. United States, 324 U.S. 229,
233 (1945) (“A ‘final decision’ generally is one which ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.”).


                                8
Hedgepeth conceded that the Final Plat standing alone could not

create an easement and that “you’ve got to go somewhere else” –

i.e. to the underlying agreement – “to get the full story.”

Thus, it seems to us that Hedgepeth has conceded the first issue

and   has     raised     another    issue    in     its    stead.    We     think   this

concession effectively ends the analysis because arguments not

raised in a party’s opening brief ordinarily are waived.                            See

United States v. Bowles, 602 F.3d 581 (4th Cir. 2010); Equal

Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597 (4th Cir.

2010).        Nevertheless,        we   consider      the    issue   that    Hedgepeth

raised at oral argument.

      Though his arguments lack some clarity, Hedgepeth appears

to    argue      that    the     Midgettes    and    the    Belangias     reached    an

agreement        for    an     easement,    which    the    Final    Plat    reflects.

According to Hedgepeth, the Final Plat satisfies the statute of

frauds.       We assume arguendo, though in no way decide, that a

final plat can constitute a writing that satisfies the statute

of frauds.         We still agree with the district court, however,

that the evidence cannot support the conclusion Hedgepeth would

have us reach – that the negotiating parties ever consummated an

agreement for an easement.              Indeed, the unequivocal testimony of

record      of    the    parties     whom    Hedgepeth       contends     reached    an

agreement proves nothing was ever finalized.



                                             9
     We    look      to    North     Carolina       law     to     determine           what     is

necessary for the creation of an express easement.                                   Because an

easement   is     an    interest     in    land     (and       thus   subject         to    North

Carolina’s      statute     of     frauds)      words     of     intent     to       create      an

easement must be memorialized and signed by the party to be

charged.     See N.C. GEN STAT. § 22-2; Singleton v. Haywood Elec.

Membership      Corp.,      565     S.E.2d        234,     238    (N.C.      App.          2002).

Although   “[n]o       particular       words     are     necessary”        to       create     an

express    easement,       Z.A.    Sneeden’s        Sons,      Inc.    v.    ZP       No.      116,

L.L.C., 660 S.E.2d 204, 209 (N.C. App. 2008) (quoting Hensley v.

Ramsey, 199 S.E.2d 1, 10 (N.C. 1973)), and                            “any words which

clearly    show      the   intention       to     give    an     easement        .    .    .   are

sufficient      to     effect    that     purpose,       provided     the    language           is

certain and definite in its terms . . ., [t]he instrument should

describe with reasonable certainty the easement created and the

dominant and servient tenements.”                    Id.        Whatever the language

used, the parties must intend to create an easement in order for

an express easement to arise.                Thus, if the parties intend that

an easement arise only upon the execution of a contract (with

the exchange of consideration and the required meeting of the

minds), no easement arises until the contract is executed.

     Here,      Hedgepeth’s        argument       that    the     Final     Plat       is      some

reflection of an underlying agreement for an easement can only

take him so far because the Final Plat does not “clearly show

                                             10
the intention to give an easement.”                   Z.A. Sneeden’s Sons, Inc.,

660 S.E.2d at 209.            If anything, it merely provides notice that

it is necessary to look elsewhere for an agreement.                            Hedgepeth

conceded      as    much     at   oral    argument        when    he    admitted   it    is

necessary to look beyond the Final Plat to find an agreement

creating an easement over the Drive.

     Of    course,      in    light      of   the   deposition         testimony   of   the

negotiating         parties,      a   search        for    that        agreement   proved

fruitless because the parties never finalized their negotiations 7

and thus, no easement ever arose. 8                  There is simply no evidence

that all of the required parties ever had a meeting of the minds

as to all of the terms, which is required to form a binding

contract. 9        See Normile v. Miller, 326 S.E.2d 11, 15 (N.C. 1985)


     7
       The Court notes that Hedgepeth’s counsel acknowledged as
much at oral argument when he stated that “what was going on
here . . . was that the developer kept getting up time and time
again raising the consideration that was going to be paid.”
     8
       No easement arose because the negotiating parties, as
indicated by their depositions and their actions, intended that
no easement would be granted until they had executed a contract
conveying   the  easement  in  exchange  for   an  agreed  upon
consideration. No consideration was ever agreed upon and thus,
no easement was created.
     9
       There is evidence that a draft of the proposed agreement
was signed by the Midgettes and Lannie Belangia and his wife but
not by Donnie and his wife.   The district court took note that
an affidavit submitted by Lannie, when compared with his earlier
deposition testimony, raises some question as to whom the
affidavit refers when it states that “a copy of the agreement
for access . . . was signed by us . . . .”      In light of the
(Continued)
                                              11
(“It is axiomatic that a valid contract . . . can only exist

when the parties assent to the same thing in the same sense, and

their minds meet as to all terms.”) (citations omitted).                                      We

think    the    conduct    of     the     parties       to    the    supposed       agreement

speaks volumes on this point.                    Unable to secure an agreement,

the     Belangias    abandoned          their        venture    and        permitted        their

property to enter foreclosure.                   Yet, nearly fifteen years after

the    parties     believed       their    negotiations          had       failed      to   bear

fruit, Hedgepeth, the purchaser at foreclosure and a stranger

with     no    firsthand     knowledge          of     the     parties’       negotiations,

essentially       claims    that    the     negotiating          parties       were     simply

wrong    to    believe     that    they     had       not    entered       into    a   binding

contract.         Under    the    circumstances,             Hedgepeth’s       claim        seems

especially untenable.

       Undaunted, Hedgepeth points to another secondary source –

the     October     17,    1988,     Board        Minutes       –     which       ambiguously

reference an easement through Parker’s Landing to Harbor Shore.

The    Planning     Board,       however,       ultimately          denied     approval       of

Harbor    Shore’s       final     plat     because          Harbor    Shore       lacked     the

required      access.      Against        this       backdrop       (and    the    deposition



testimony of the Midgettes and Donnie Belangia that no agreement
between all the parties was ever reached, the “us” Lannie refers
to includes himself and his wife, not his brother or his
brother’s wife.


                                            12
testimony of the parties to the alleged agreement), it is hard

to find any significant probative value in the Board Minutes.

     In     sum,    we     find      no     fault        in     the    district        court’s

determination that the Midgettes and the Belangias never reached

an understanding for the creation of an easement.



                                            III.

     Hedgepeth          contends          that     because            the     Association’s

predecessor    in       title   obtained         approval       of    its   final     plat    by

representing       to    the    Planning         Board    that        it    had     given    the

proposed Harbor Shore development a right-of-way over the Drive,

quasi-estoppel          precludes     the        Association           from       taking     the

position    that    there       is   no    easement           over    the   Drive. 10        The

Association counters that there are no facts to support this

claim.     We agree and affirm on this ground.

     Quasi-estoppel,            or   estoppel        by        benefit,       see     Carolina

Medicorp., Inc. v. Bd. of Trustees of State of N.C. Teachers’

and State Employees’ Comprehensive Major Med. Plan, 456 S.E.2d

116, 120 (N.C. App. 1995), provides that when a party takes and

retains benefits under a transaction or instrument, which it has

     10
        It is Hedgepeth’s position that because the Association
is in privity with MDE and the Midgettes, then to the extent
they would be estopped, the Association is estopped.        See
Whitacre P’ship v. Biosignia, Inc., 591 S.E.2d 870, 893 (N.C.
2004).


                                             13
the right to accept or reject, that party’s retention of the

benefits acts to ratify the transaction or instrument such that

the    party    cannot    avoid      its     obligation        or   effect     under   the

transaction        or     instrument         by     later      taking      a    position

inconsistent with the transaction or instrument, see Parkersmith

Properties v. Johnson, 525 S.E.2d 491, 495 (N.C. App. 2000).

       We find the record devoid of any support for Hedgepeth’s

claim.        First, although there is evidence that the Midgettes

represented that they were working with the Belangias to reach

an    agreement,      there   is    no     evidence     that    they    represented      to

either the Board of Commissioners or the Planning Board that the

negotiating parties had in fact reached an agreement for access.

At    best,    Hedgepeth’s         claim    seems      strained,       given   that    the

Planning      Board     granted     approval      of    Parker’s       Landing’s      final

plat, but not Harbor Shore’s final plat because Harbor Shore had

not secured the fifty foot access necessary for development.

Second, Hedgepeth is hard-pressed to identify any benefit the

Association received.             Therefore, we agree with the Association

that there are no facts to support this claim.



                                            IV.

       For the reasons stated, the judgment of the district court

is affirmed.

                                                                                AFFIRMED

                                             14
