             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA19-701

                               Filed: 7 April 2020

Johnston County, No. 18 CVS 718

RICKY CURLEE, a minor by and through his Guardian ad litem KARINA
BECERRA, individually, Plaintiff,

            v.

JOHN C. JOHNSON, III, STACEY TALADO and RAYMOND CRAVEN, Defendants.


      Appeal by plaintiffs from order entered 10 April 2019 by Judge Stephan R.

Futrell in Johnston County Superior Court.     Heard in the Court of Appeals 5

February 2020.


      Law Office of Michael D. Maurer, P.A., by Michael D. Maurer, and Burton Law
      Firm, PLLC, by Jason M. Burton, for plaintiff-appellants.

      Simpson Law, PLLC, by George Simpson, for defendant-appellee John C.
      Johnson.


      TYSON, Judge.


      Ricky Curlee and his mother, Karina Becerra, (“Plaintiffs”) appeal from an

order entered granting summary judgment in favor of John C. Johnson, III. We

affirm.

                                  I. Background

      In 2000, Johnson leased a single-family residential property located at 132

Gower Circle (“the Property”) in Garner to Raymond Craven and Stacie Talado.
                                 CURLEE V. JOHNSON

                                   Opinion of the Court



Following the expiration of the initial one-year lease term, Craven and Talado

remained Johnson’s tenants on a month-to-month basis. At the time of trial, Craven

and Talado continued to maintain their tenancy at the Property with their minor

children. Johnson collects the rental payment at the end of the driveway at the

Property or at the Wal-Mart store where Talado acquires cashier’s checks to pay the

rent.

                                       A. Johnny

        Craven and Talado owned a dog they had named “Johnny.” Johnny was given

to them as a puppy by a friend. Craven believed Johnny’s sire was a black lab and

his dam was “like a collie-looking kind of dog.”

                             B. 13 October 2014 Incident

        Talado and Craven’s children were playing with a neighbor’s minor child, P.K.

who is wholly unrelated to Plaintiffs, on 13 October 2014, when an incident occurred.

P.K.’s mother had told her son not to play rough with Johnny, but she continued to

allow P.K. and his sister to go over to and visit Craven and Talado’s home with

Johnny being present.

        Talado described the incident: “[P.K.] was just playing with the dog, kind of

wrestling with him, and [Johnny] nicked the top of his head.” The “nick” occurred

when P.K raised his head up while wrestling with Johnny. Talado described the

“nick” as “about the size of my pinkie nail.”



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                                 CURLEE V. JOHNSON

                                  Opinion of the Court



      Chad Massengill, Johnston County’s Animal Services (“JCAS”) Director,

affirmed the hospital did not document the incident in a report and the “nick” was

minor. When investigating the October 2014 incident, Director Massengill classified

Johnny’s breed as a “Retriever, Labrador/Terrier, American Pit Bull.”       Director

Massengill based this classification upon his visual identification.

      Johnny was quarantined for ten days following the 13 October 2014 incident.

JCAS determined Johnny did not satisfy the statutory definition of either a

dangerous dog or even a potentially dangerous dog. No preventative measures of the

Johnston County Ordinances relating to keeping animals were required of Talado

and Craven. Johnny was returned to Talado and Craven following the expiration of

the ten-day quarantine.

      Director Massengill advised Talado and Craven of voluntary steps they could

take to minimize the risks of keeping Johnny, including placing “Beware of Dog” signs

on the property and keeping Johnny on a leash anytime children were around.

Nothing in the record shows JCAS notified Johnson of this 2014 incident, as the

owner of the property.

                             C. 17 March 2015 Incident

      Over six months later, seven-year-old Curlee visited the Property to play with

Craven and Talado’s children. Curlee lived on Gower Circle with his parents, Becerra




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                                 CURLEE V. JOHNSON

                                  Opinion of the Court



and Ricky Curlee, Sr. During his visit, Talado and Craven had restrained Johnny

with a leash on the Property.

      Curlee walked within the radius of the leash restraining Johnny while walking

home. While inside the radius, Curlee pointed a toy gun at Johnny’s head. Johnny

bit Curlee on his cheek and tore the tissue off. Plaintiff’s complaint alleges Curlee

suffered severe and permanent facial disfigurement and psychological injuries as a

result of the incident. JCAS responded to the incident, took possession of Johnny,

and followed Craven and Talado’s instructions to euthanize the dog.

                                D. Procedural History

      Plaintiffs initially sued Johnson only, and alleged negligence and strict liability

on 5 July 2016. Following discovery, Johnson filed a Rule 56 motion for summary

judgment under North Carolina Rules of Civil Procedure. Before this motion was

heard, Plaintiffs voluntarily dismissed their complaint.

      Ten days before the third anniversary of the incident, Plaintiffs re-filed their

claims against Johnson and added Craven and Talado as co-defendants on 6 March

2018. Craven and Talado proceeded pro se and did not file answers to the complaint.

Plaintiffs moved for and were granted an entry of default on 17 July 2018 solely

against Craven and Talado.




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                                  CURLEE V. JOHNSON

                                    Opinion of the Court



       Johnson denied liability, timely filed, and served his answer.           Following

discovery, Johnson filed his motion for summary judgment, which was granted by the

trial court. Plaintiffs timely filed a notice of appeal.

                                     II. Jurisdiction

       Plaintiffs concede their appeal is interlocutory, but assert without immediate

appeal their substantial rights will be impacted. See N.C. Gen. Stat. § 7A-27(b)(3)(a)

(2019). “Entry of judgment for fewer than all the defendants is not a final judgment

and may not be appealed in the absence of certification pursuant to Rule 54(b) unless

the entry of summary judgment affects a substantial right.” Camp v. Leonard, 133

N.C. App. 554, 557, 515 S.E.2d 909, 912 (1999) (citations omitted).

              Our Supreme Court has held that a grant of summary
              judgment as to fewer than all of the defendants affects a
              substantial right when there is the possibility of
              inconsistent verdicts, stating that it is the plaintiff's right
              to have one jury decide whether the conduct of one, some,
              all or none of the defendants caused his injuries.

Id. (citations and internal quotation marks omitted).

       This Court has held a substantial right is affected when “(1) the same factual

issues would be present in both trials and (2) the possibility of inconsistent verdicts

on those issues exists.” N.C. Dep’t of Transportation v. Page, 119 N.C. App. 730, 736,

460 S.E.2d 332, 335 (1995) (citations omitted). Here, the same factual issues apply

to all claims against the property owner and the tenants. Two trials may bring about

inconsistent verdicts relating to Plaintiff’s damages. We conclude Plaintiffs assert a


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                                 CURLEE V. JOHNSON

                                   Opinion of the Court



substantial right to have the liability of all defendants be determined in one

proceeding. Id.

      This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 7A-27(b)(3)(a)

(2019). We address the merits of Plaintiff’s interlocutory appeal.

                                       III. Issue

      Plaintiffs argue the trial court erred in granting summary judgment for

Johnson.

                               IV. Summary Judgment

                                A. Standard of Review

       “Summary judgment is appropriate if 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 [a] party is entitled to

judgment as a matter of law.” Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247,

249 (2003) (citation and internal quotation marks omitted); see N.C. Gen. Stat. § 1A-

1, Rule 56(c) (2019).

      On Defendant’s motion for summary judgment in a negligence action:

             A defendant may show entitlement to summary judgment
             by (1) proving that an essential element of the plaintiff’s
             case is non-existent, or (2) showing through discovery that
             the plaintiff cannot produce evidence to support an
             essential element of his or her claim, or (3) showing that
             the plaintiff cannot surmount an affirmative defense.
             Summary judgment is not appropriate where matters of
             credibility and determining the weight of the evidence


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                                 CURLEE V. JOHNSON

                                   Opinion of the Court



             exist.

             Once the party seeking summary judgment makes the
             required showing, the burden shifts to the nonmoving party
             to produce a forecast of evidence demonstrating specific
             facts, as opposed to allegations, showing that he can at least
             establish a prima facie case at trial.

Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735

(2003) (citations and quotation marks omitted), aff’d per curiam, 358 N.C. 131, 591

S.E.2d 521 (2004) (emphasis supplied).

                                      B. Analysis

      This Court recently stated: “Summary judgment is seldom appropriate in a

negligence action. A trial court should only grant such a motion where the plaintiff’s

forecast of evidence fails to support an essential element of the claim.” Hamby v.

Thurman Timber Company, LLC, __ N.C. App. __, __, 818 S.E.2d 318, 323 (2018)

(citation omitted).   However, this “forecast of evidence” must still demonstrate

“specific facts, as opposed to allegations, showing [Plaintiff] can at least establish a

prima facie case at trial.” Id.; Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735.

      In order to hold a landlord liable for injuries caused by a tenant’s dog to a

visitor, “a plaintiff must specifically establish both (1) that the landlord had

knowledge that a tenant’s dog posed a danger; and (2) that the landlord had control

over the dangerous dog’s presence on the property in order to be held liable for the




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                                 CURLEE V. JOHNSON

                                   Opinion of the Court



dog attacking a third party.” Stephens v. Covington, 232 N.C. App. 497, 500, 754

S.E.2d 253, 255 (2014) (citations omitted).

      The crux of this case is whether Johnson had prior knowledge Johnny posed a

danger. Specifically, within this context, “posed a danger” is not a generalized or

amorphous standard, but ties directly back to our common-law standard for liability

in dog-attack cases: “that the landlord had knowledge of the dogs’ previous attacks

and dangerous propensities.” Id.

      This standard is consistent with the common-law standard applicable to the

owner or keeper of the animal requiring prior knowledge of the animal’s vicious

propensity as an essential element in dog-bite cases to establish liability. “[T]he

gravamen of the cause of action is not negligence, but rather the wrongful keeping of

the animal with knowledge of its viciousness.” Holcomb v. Colonial Assoc., L.L.C., 358

N.C. 501, 511, 597 S.E.2d 710, 717 (2004) (alterations, citations, and quotation marks

omitted).

      Plaintiff argues the trial court erred in granting Johnson’s motion for summary

judgment, citing Holcomb, supra and Stephens, supra.

                           1. Holcomb v. Colonial Associates

      In Holcomb, our Supreme Court examined “whether a landlord can be held

liable for negligence when his tenant’s dogs injure a third party.” Holcomb, 358 N.C.

at 503, 597 S.E.2d at 712. The landlord in Holcomb, was aware of two prior incidents



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                                  Opinion of the Court



involving the tenant’s Rottweiler breed dogs, yet continued to allow the tenants to

keep the dogs on the property. Id. at 504, 597 S.E.2d at 712-13.

      A lease provision allowed the landlord to have the tenant “remove any pet . . .

within forty-eight hours of written notification from the landlord that the pet, in the

landlord’s sole judgment, creates a nuisance or disturbance or is, in the landlord’s

opinion, undesirable. Id at 503, S.E.2d at 712.          Our Supreme Court stated the

landlord with prior knowledge of multiple past attacks could be held liable because

the express “lease provision [above] granted [the landlord] sufficient control to

remove the danger posed by [the tenant]’s dogs. Id. at 508-09, 597 S.E.2d at 715.

                                2. Stephens v. Covington

      In Stephens v. Covington, this Court applied rationale from Holcomb to a

premises liability factual pattern that is analogous to the present case. Stephens, 232

N.C. App. at 500, 754 S.E.2d at 255. The landlord lived in the same neighborhood as

the property and knew the tenants owned a Rottweiler dog. Id. at 498, 754 S.E.2d at

254. The landlord and the tenants spoke with animal control officers regarding safety

measures for keeping a Rottweiler. Id.

      The tenants created a fenced-in gate and posted “No Trespassing” and “Beware

of Dog” signs on the property. Id. The incident occurred within the dog’s fenced-in

pen. Id. Even with the multiple signs posted, and the breed of the dog, this Court

held the evidence failed to show the defendant knew or should have known the



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                                 CURLEE V. JOHNSON

                                  Opinion of the Court



Rottweiler had a dangerous propensity prior to the attack on the plaintiff. Id. at 501,

754 S.E.2d at 256. Johnson, unlike the defendant in Stephens, was not involved with

the placing of the signs nor in arranging safety measures for Johnny.

                      3. Plaintiffs’ Proffer of Forecasted Evidence

      Plaintiffs contend direct and circumstantial evidence tends to show Johnson

had prior knowledge of Johnny’s alleged dangerous propensities.         Plaintiff sent

requests for admission of their prior knowledge of the dog’s propensities to Talado,

Craven, and Johnson. Craven failed to respond to the requests for admission. The

items contained in the request for admission sent to Craven are admitted as against

him by operation of law. See N.C. R. Civ. P. 36(a).

      Talado responded pro se to Plaintiffs’ request for admission, but not under oath

or before a notary. Request for admission twelve provides: “Please admit that you

informed your landlord, John Johnson III (“landlord”), of the attack, shortly after the

attack.” Talado responded with a handwritten “yes.”

      Plaintiffs contend their proffered evidence creates a genuine issue of fact of

whether Johnson knew or should have known of this prior 2014 incident. Plaintiffs

contend their proffer shows, at a minimum, a disputed issue of fact exists of whether

Talado personally informed Johnson of the incident. Additionally, Plaintiffs claim

their proffered expert testimony established, even if Johnson had not been informed

of the incident, the appearance of the “Beware of the Dog” signs constituted “a



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                                     Opinion of the Court



flashing red light to the landlord that they’ve got a potential problem there.”

Plaintiffs assert this imposed a duty upon Johnson to further investigate and inspect

the premises to determine whether the dog posed a danger and take appropriate

steps.

         Taken in the light most favorable to the Plaintiffs and accepting the proffer as

true, Plaintiffs’ proffer fails to establish a genuine issue of material fact exists of

whether Johnson knew or should have reasonably known of the October 2014

incident.

         Plaintiffs’ characterization of the prior October 2014 incident as an “attack” is

not supported by the evidence in the record. To the contrary, the only evidence in the

record is that the October 2014 incident occurred when another child was playing

with the dog, and during the course of that play, the child picked his head up hitting

the dog’s mouth causing a “nick” on the child’s head, resulting in a trip to the

emergency room and a stitch. That incident does not raise a genuine issue of material

fact of a “dog bite” to charge Johnson with prior notice.

         Plaintiffs point to the JCAS case report that indicates it was for a

“bite/exposure investigation” and the deposition testimony of Director Massengill,

who had no independent recollection of the October 2014 incident, that the incident

involved a “minor bite” because of the lack of any documentation concerning its

severity.



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                                    Opinion of the Court



      From this, Plaintiffs contend a genuine issue of material fact exists of whether

the prior incident should be classified as a dog-bite and/or attack sufficient to survive

summary judgment. That characterization conflicts with the first-hand evidence of

the October 2014 incident, and Plaintiffs offer no evidence to the contrary. JCAS

investigated the incident and determined the dog was not dangerous or potentially

dangerous.

      To reach the conclusion advocated by Plaintiffs—that the October 2014

incident was “an attack” such that knowledge of it would have put Johnson on notice

of the dog’s dangerous propensity — would require speculation or conjecture that the

October 2014 incident was not as described in the uncontradicted evidence. Such

speculation or conjecture is insufficient as a matter of law to withstand summary

judgment. See Estate of Tipton v. Delta Sigma Phi, ___ N.C. App. ___, ___ 826 S.E.2d

226, 233, disc. rev. denied, 372 N.C. 703, 831 S.E.2d 76 (2019) (“[I]t is well established

that ‘a plaintiff is required to offer legal evidence tending to establish beyond mere

speculation or conjecture every essential element of negligence, and upon failure to

do so, summary judgment is proper.’” (citing Hamby, ___ N.C. App. at ___, 818 S.E.2d

at 323 (internal citation and internal quotation marks omitted)). Plaintiffs failed to

forecast evidence that Johnson knew or should have known the dog posed a danger

prior to the March 2015 incident.




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                                  CURLEE V. JOHNSON

                                   Opinion of the Court



      Plaintiffs assert Talado’s pro se unsworn answer to an ambiguous question of

an “attack” imputes Johnson’s prior knowledge of the 13 October 2014 incident. This

admittingly “ambiguous” interrogatory where Talado entered a hand written “yes”

does not differentiate between the 13 October 2014 or the 17 March 2015 incidents.

This notion is contrary to law.

      A co-defendant’s nonresponses or admissions are not binding upon another co-

defendant, even at the summary judgment stage. Barclays American v. Haywood, 65

N.C. App. 387, 389, 308 S.E.2d 921, 923 (1983) (“Facts admitted by one defendant are

not binding on a co-defendant.”).     The language of Barclays applies not only to

purported admissions of liability, but also to facts. Id. “Admissions in the answer of

one defendant are not competent evidence against a [co-defendant].” Cambridge

Homes of N.C. Ltd. P'ship v. Hyundai Constr., Inc., 194 N.C. App. 407, 418, 670

S.E.2d 290, 299 (2008).     During Talado and Craven’s sworn depositions, both

specifically denied informing Johnson of the earlier 13 October 2014 incident

involving P.K.

      Consistent with Draughon, this Court properly held: “If the moving party

makes out a prima facie case that would entitle him to a directed verdict at trial,

summary judgment will be granted unless the opposing party presents some

competent evidence that would be admissible at trial and that shows that there is a




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                                  CURLEE V. JOHNSON

                                   Opinion of the Court



genuine issue as to a material fact.” Insurance Co. v. Bank, 36 N.C. App. 18, 26, 244

S.E.2d 264, 268-69 (1978) (emphasis supplied) (citations omitted).

      Under our precedents, a pro se and unsworn answer by a co-defendant to an

ambiguous question in discovery, refuted at the sworn deposition, is not “competent

evidence . . . [to show] . . . a genuine issue as to a material fact” of Johnson’s prior

knowledge. Id. The dissenting opinion purports to bolster the unsworn answer, as

creating a factual issue, but fails to address its competency and admissibility under

N.C. Gen. Stat. § 1A-1, Rule 56. “[M]aterial offered which set forth facts which would

not be admissible in evidence should not be considered when passing on the motion

for summary judgment.” Strickland v. Doe, 156 N.C. App. 292, 295, 577 S.E.2d 124,

128 (2003) (citations omitted).

      Additionally, the dissenting opinion improperly places the burden on the

Defendants. See Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735 (“the burden

shifts to the nonmoving party to produce a forecast of evidence demonstrating specific

facts, as opposed to allegations, showing that he can at least establish a prima facie

case at trial” (citation omitted)). Once Johnson showed Plaintiffs cannot introduce

evidence of an essential element of their claim, Johnson’s prior knowledge, the burden

shifts to Plaintiffs to make a forecast of prima facie evidence. which shifts and relieves

Defendant of any burden of production. Id.




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                                 CURLEE V. JOHNSON

                                  Opinion of the Court



      Plaintiffs have not presented a genuine issue of material fact admissible at

trial to satisfy the first prong of Stephens to prove “the landlord had knowledge that

a tenant’s dog posed a danger.” Stephens, 232 N.C. App. at 500, 754 S.E.2d at 255. A

review of the admissible evidence presented at the motion hearing and before this

Court points merely to Johnson’s knowledge that his tenants owned a dog, while they

were staying on the Property. A refuted, unsworn, pro se and inadmissible statement

does not create a genuine issue of material fact. Plaintiffs’ argument is overruled.

      The cases of Barclays and Volkman provide no support for one defendant’s

inadmissible assertion against another defendant to create any genuine issue of

material fact. Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923; Volkman v. DP

Associates, 48 N.C. App. 155, 157, 268 S.E.2d 265, 267 (1980). This assertion not only

misinterprets the controlling bright line principle articulated in Barclays, but also

ignores the posture of Volkman. Barclays holds “[f]acts admitted by one defendant

are not binding on a co-defendant.” Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923.

      The facts in Volkman involved interrogatories sent to a plaintiff by a defendant

and the defendant’s subsequent answers being used to support a defendant’s motion

for summary judgment. Volkman, 48 N.C. App. at 155-56, 268 S.E.2d at 266.

Alternative theories for establishing a partnership, overlooked by the trial court in

the summary judgment award, provided a justification to reverse and remand that

case on appeal. Id. at 157, 268 S.E.2d at 267.



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                                 CURLEE V. JOHNSON

                                  Opinion of the Court



      The instant case involves unsworn and pro se answers by co-defendants

triggering the rule from Barclays.     Ignoring or overlooking this distinction and

disregarding the legitimate use and admissibility of discovery, does not create

genuine issues of material fact, nor compel a contrary result.

       The bright-line rule from Draughon, Barclays, and Insurance Co. shows the

correctness of the trial court’s judgment. No case is cited to support the admission of

this unsworn and refuted answer into evidence or to allow thi.s Court to deviate from

Barclays and these precedents to reverse and remand.

      Plaintiffs have not satisfied the first prong of Stephens. Plaintiffs’ “forecast of

evidence fails to support an essential element of the claim.” Hamby, __ N.C. App. at

__, 88 S.E.2d at 323. Summary judgment is proper. We do not need to address the

remaining prong of Stephens or Plaintiffs’ arguments of alleged “willful or wanton”

conduct to award punitive damages.

                                    V. Conclusion

      Plaintiffs’ “forecast of evidence” does not establish a genuine issue of material

fact exists of their alleged negligence claims against Johnson or present a prima facie

case. Draughon, 158 N.C. App. at 212, 580 S.E.2d at 735. The trial court’s summary

judgment order is affirmed. It is so ordered.

      AFFIRMED.

      Judge HAMPSON concurs.



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                       CURLEE V. JOHNSON

                         Opinion of the Court



Judge BROOK dissents with separate opinion.




                                -2-
 No. COA19-701 – Curlee v. Johnson


      BROOK, Judge, dissenting.


      I respectfully dissent.

      The question raised on this appeal is not whether Plaintiffs proved that

Defendant John Johnson (“Johnson”) knew that Stacie Talada (“Talada”) and

Raymond Craven’s (“Craven”) dog posed a danger; Plaintiffs will bear that burden at

trial. The question is whether, viewing the facts in the light most favorable to

Plaintiffs, Johnson carried his burden of showing there was no genuine issue of

material fact as to whether he knew the dog posed a danger. I would hold he has not

and, as such, would reverse the trial court’s entry of summary judgment for Johnson.

                                  I. Governing Law

      A party moving for summary judgment has a hill to climb. First, summary

judgment    is only appropriate     “if the pleadings,     depositions,   answers to

interrogatories, and admissions on file . . . 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.”

N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019); see also Volkman v. DP Associates, 48 N.C.

App. 155, 157, 268 S.E.2d 265, 267 (1980) (noting summary judgment improper where

“[t]he answers to the [written discovery] indicate that there is at least a question as

to” a disputed material fact). In evaluating such a motion, the evidence must be

“viewed in the light most favorable to the non-moving party”—here, Plaintiffs.

Hardin v. KCS Int’l., Inc., 199 N.C. App. 687, 695, 682 S.E.2d 726, 733 (2009). Indeed,
                                        CURLEE V. JOHNSON

                                        BROOK, J., dissenting



“[e]ven the slightest doubt should be resolved in favor of the nonmovant.” Volkman,

48 N.C. App. at 157, 268 S.E.2d at 267.1

        Beyond these generally applicable rules, the hill becomes steeper in

circumstances such as these.             “Summary judgment is seldom appropriate in a

negligence action.” Hamby v. Thurman Timber Co., LLC, ___ N.C. App. ___, ___, 818

S.E.2d 318, 323 (2018) (internal marks and citation omitted).                           Additionally,

“[s]ummary judgment is rarely proper when a state of mind such as intent or

knowledge is at issue.” Valdese Gen. Hosp., Inc. v. Burns, 79 N.C. App. 163, 165, 339

S.E.2d 23, 25 (1986).

        As articulated by the majority opinion, to succeed in a suit against a landlord

for injuries caused by a tenant’s dog to a third party, “a plaintiff must specifically

establish both (1) that the landlord had knowledge that a tenant’s dog posed a danger;

and (2) that the landlord had control over the dangerous dog’s presence on the

property in order to be held liable for the dog attacking a third party.” Stephens v.

Covington, 232 N.C. App. 497, 500, 754 S.E.2d 253, 255 (2014). Again, Plaintiffs need

not have proved each of these elements at this summary judgment stage—instead,




        1 The majority opinion notes that if the moving party shows entitlement to summary judgment,
it “will be granted unless the opposing party presents some competent evidence that would be
admissible at trial and that shows that there is a genuine issue as to a material fact.” Old S. Life Ins.
Co. v. Bank of N.C., N.A., 36 N.C. App. 18, 26, 244 S.E.2d 264, 268-69 (1978). The next sentence in
Old is equally pertinent here, however: “In addition, as is true of other material introduced on a
summary judgment motion, uncertified or otherwise inadmissible documents may be considered by
the court if not challenged by means of a timely objection.” Id.

                                                   2
                                 CURLEE V. JOHNSON

                                 BROOK, J., dissenting



Johnson must establish that they have not forecast evidence sufficient to create a

genuine issue of material fact with regard to each element of the claim. Addressing

each element pursuant to the applicable de novo standard of review, I would hold that

Johnson has not met his burden of establishing there is no genuine issue of material

fact.

                                      II. Application

                        A. Knowledge of Dog’s Dangerousness

        Plaintiffs have not only alleged but presented evidence, through requests for

admission and deposition testimony, that places Johnson’s knowledge in dispute. I

briefly review this evidence below.

        Plaintiffs submitted requests for admissions to Talada and Craven.        In

response to these requests, Talada made certain handwritten admissions as follows:

              9. Please admit that you owned a pit bull mix named
              Johnny which you kept on the property you leased . . .

              RESPONSE: never owned a pit bull

              10. Please admit that this pit bull attacked (“the attack”)
              and injured a child (“the child”) on or about October 13,
              2014 on the property.

              RESPONSE: never owned a pit bull

              11. Please admit that the child bitten on your property
              required medical treatment following the attack.

              RESPONSE: yes



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                                 CURLEE V. JOHNSON

                                 BROOK, J., dissenting



             12. Please admit that you informed your landlord, John
             Johnson III (“landlord”), of the attack, shortly after the
             attack.

             RESPONSE: yes

(Emphasis added.) Craven did not respond; he is therefore deemed to have admitted

each request by operation of law. See N.C. Gen. Stat. § 1A-1, Rule 36(a) (2019) (“The

matter is admitted unless, within 30 days after service of the request, . . . the party

to whom the request is directed serves upon the party requesting the admission a

written answer or objection[.]”). Talada and Craven, in short, both admitted that

they informed Johnson of the 13 October 2014 incident shortly after it occurred.

      In addition to these admissions, Talada testified that Johnson would come to

her house once a month to collect rent. Johnny would be in the yard during some of

these visits. Both Craven and Talada testified at their depositions that they posted

at least four “Beware of Dog” signs around their property after the October incident.

Chad Massengill, Director of Johnston County Animal Services, testified at his

deposition that such signs can be helpful in informing the public that a dog could be

potentially dangerous. Plaintiffs’ expert witness, Certified Property Manager Daryl

Greenberg, testified that the appearance of such signs “is a flashing red light to the

landlord that they’ve got a potential problem there . . . and that they have a duty to

inspect and take additional steps under the area of safety.” Johnson also admitted

that he saw the signs and that he did not ask why they were posted when they had

not been posted previously.

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                                 CURLEE V. JOHNSON

                                 BROOK, J., dissenting



      Considered as a whole and in the light most favorable to Plaintiffs, this

evidence places Johnson’s knowledge of the danger the dog posed at issue and meets

the low bar of establishing a genuine issue of material fact. The narrative is easy

enough to discern: Talada and Craven told Johnson about the 13 October 2014

incident involving Johnny biting another child, requiring that child to receive medical

care; they further put up “Beware of Dog” signs on the property in response to this

incident, a “flashing red light to the landlord that [he had] a potential problem”;

Johnson saw these signs; and, in response to these developments, Johnson did

nothing. Taken in the light most favorable to Plaintiffs, these facts are cleanly

distinguishable from instances where our Court has found no genuine issue of

material fact in this context and, as such, are sufficient to survive a motion for

summary judgment.       See Stephens, 232 N.C. App. at 501, 754 S.E.2d at 256

(“Defendant [landlord] could not have known that Rocky [the dog] was dangerous[.]”).

      The majority’s response is to shade both the facts and law in favor of

Defendant, which is inappropriate here given that he moved for summary judgment.

I discuss three instances of such shading below.

      First, the majority resolves ambiguities pertaining to the 13 October 2014

incident in favor of Defendant. Talada in her deposition testimony stated that the

October incident between her dog and another child resulted in the child receiving

“one or two stitches” from emergency medical personnel. Furthermore, the hospital



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                                       CURLEE V. JOHNSON

                                        BROOK, J., dissenting



reported the incident as a “minor bite” to Johnston County Animal Services. In

contrast, the majority opinion characterizes the record as follows: “the only evidence

. . . is that the October 2014 incident occurred when another child was playing with

the dog, and during the course of that play, the child picked his head up hitting the

dog’s mouth causing a ‘nick’ on the child’s head, resulting in a trip to the emergency

room and a stitch.” Curlee, supra at ___. This interpretation of the record evidence

resolves ambiguities in a manner helpful to Defendant. But, at this point in the

proceeding, our mandate is clear: to view the record evidence in the light most

favorable to the Plaintiffs as they seek to establish notice of dangerousness. 2

        Second, the majority interprets ostensibly ambiguous requests for admission

in a manner disadvantageous to Plaintiffs.

        As an initial matter, the majority is incorrect that Plaintiffs’ requests for

admission do not distinguish between the 13 October 2014 and the 17 March 2015

incidents. In fact, the requests for admission are not ambiguous in the least. The

requests at issue, as noted above, proceed as follows:

                10. Please admit that this pit bull attacked (“the attack”)
                and injured a child (“the child”) on or about October 13,
                2014 on the property.


        2  The majority opinion further notes Johnston County Animal Services “determined Johnny
did not satisfy the statutory definition of either a dangerous dog or even a potentially dangerous dog.”
Curlee, supra at ___. Left unsaid is that these statutory definitions did not factor into the inquiry in
Holcomb or Stephens and that the definitions are quite exclusive, including only dogs who have killed
or inflicted severe injury without provocation, “[i]nflicted a bite on a person that resulted in broken
bones or disfiguring lacerations[,]” and the like. N.C. Gen. Stat. § 67-4.1 (2019).


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                                 BROOK, J., dissenting




             RESPONSE: never owned a pit bull

             11. Please admit that the child bitten on your property
             required medical treatment following the attack.

             RESPONSE: yes

             12. Please admit that you informed your landlord, John
             Johnson III (“landlord”), of the attack, shortly after the
             attack.

             RESPONSE: yes

(Emphasis added.) The requests plainly utilize the parenthetical to define the 13

October 2014 incident as “the attack” and then refer back to that incident using that

same language in the requests for admission that immediately follow. Even without

guidance from the parenthetical, the most straightforward reading of the above is

that requests 11 and 12 are referring to the event introduced in request 10. This

straightforward interpretation is reinforced when reviewing the requests for

admission as a whole.     The 17 March 2015 “attack” is the only other “attack”

referenced therein, and it is not introduced until request 17.      And, when it is

referenced, it is defined parenthetically as the “second attack[.]” Hence, it is clear

that the “attack” referenced in requests 11 and 12 is that of 13 October 2014.

      But even accepting request 12 as ambiguous does not support the grant of

summary judgment. At this stage in the proceedings, “[e]ven the slightest doubt

should be resolved in favor of the nonmovant.” Volkman, 48 N.C. App. at 157, 268



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                                        CURLEE V. JOHNSON

                                        BROOK, J., dissenting



S.E.2d at 267; see also Warren v. Rosso and Mastracco, Inc., 78 N.C. App. 163, 164,

336 S.E.2d 699, 700 (1985) (“If different material conclusions can be drawn from the

evidence, then summary judgment should be denied.”). Accordingly, the affirmative

responses from Talada and Craven to request 12 here must be interpreted as evidence

that Johnson knew of the 13 October 2014 incident shortly after it occurred.

        Finally, Johnson and the majority opinion also suggest that the admissions

from Talada and Craven cannot raise a genuine issue of material fact. But the rules

are clear: summary judgment is only appropriate where “pleadings, depositions,

answers to interrogatories, and admissions on file . . . show that there is no genuine

issue as to any material fact.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2019).

        The majority opinion cites Cambridge Homes of N.C. Ltd. P’ship v. Hyundai

Constr., Inc., 194 N.C. App. 407, 670 S.E.2d 290 (2008), and Barclays American

Financial, Inc. v. Haywood, 65 N.C. App. 387, 308 S.E.2d 921 (1983), as dooming

Plaintiffs’ appeal; however, a brief review indicates this is not so.3 Both cases are

cited, at bottom, for the proposition that “[f]acts admitted by one defendant are not

binding on a co-defendant.” Cambridge, 194 N.C. App. at 418, 670 S.E.2d at 299

(quoting Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923). Barclays illustrates this

central point well. There, the trial court granted plaintiff summary judgment against



        3 In addition to the below reason that these cases do not stand for the proposition asserted,
Cambridge is inapposite here as it deals with a far different circumstance: whether to reverse the
denial of a motion to dismiss for lack of personal jurisdiction. 194 N.C. App. at 419, 670 S.E.2d at 299.

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                                        CURLEE V. JOHNSON

                                        BROOK, J., dissenting



one defendant based on another defendant’s admission via failure to respond to

requests for admission. Barclays, 65 N.C. App. at 389, 308 S.E.2d at 923. While this

admission made summary judgment proper against the defendant who failed to

respond, our court reversed the entry of summary judgment against the other

defendant the plaintiff sought to bind. Id.

        But just because one defendant’s admission is not all powerful with the effect

of resolving all issues as to another defendant does not mean it is inert. As in

Barclays and Volkman, in the current controversy, “[t]he answers to the [written

discovery] indicate[d] that there [wa]s at least a question as to” the key issue. 48 N.C.

App. at 157, 268 S.E.2d at 267. And, here, as there, summary judgment is thus

inappropriate.4

                      B. Control Over Dog’s Presence on the Property

        I turn briefly to the second element Plaintiffs must ultimately prove: “that

[Johnson] had control over the dangerous dog’s presence on the property[.]” Stephens,

232 N.C. App. at 500, 754 S.E.2d at 255.




        4 The majority also argues these admissions were not properly considered at summary
judgment because they were unsworn, an argument not made by Johnson at the trial court or before
our Court. This argument has been waived because it was not raised below and, as such, is not
properly before us. See Thelen v. Thelen, 53 N.C. App. 684, 689, 281 S.E.2d 737, 740 (1981). Further,
assuming arguendo that the majority opinion is correct as to admissibility, “as is true of other material
introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be
considered by the court if not challenged by means of a timely objection.” Old S. Life Ins. Co., 36 N.C.
App. at 26, 244 S.E.2d at 269.

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                                 CURLEE V. JOHNSON

                                 BROOK, J., dissenting



       Our Supreme Court in Holcomb v. Colonial Assocs., 358 N.C. 501, 597 S.E.2d

710 (2004), articulated the relevant inquiry as whether the landlord had “sufficient

control to remove the danger posed by” a tenant’s dog. Id. at 508-09, 597 S.E.2d at

715. The Holcomb Court found that the tenants’ lease clearly granted the landlord

the right to remove any pet undesirable to the landlord. Id. at 508-09, 597 S.E.2d at

715.   The Supreme Court cited several cases from other jurisdictions for the

proposition that a written lease provision does not provide the only manner by which

a landlord can exercise control over a tenant’s dog. Id. (Uccello v. Laudenslayer, 44

Cal. App.3d 504, 514, 118 Cal. Rptr. 741, 747 (1975) (holding the landowner had

control via the power “to order his tenant to cease harboring the dog under pain of

having the tenancy terminated”); Shields v. Wagman, 350 Md. 666, 684, 714 A.2d

881, 889-90 (1998) (holding the landowner could exercise control over his tenant’s dog

by refusing to renew a month-to-month lease agreement)).

       Here, Johnson’s deposition testimony indicated the following regarding the

control he retains over his tenants’ dogs:

             [JOHNSON]: My policy is if, it can’t be a nuisance to any
             of the tenants or property owners, it can’t destroy my
             property of course and be, you know, dangerous to anybody
             else in the area. What I do is if someone, if I get a phone
             call, generally it’s from an adjoining one or someone close
             by saying hey, I have got a problem with so and so and so
             and so, this is the problem. I go to that tenant and I say
             okay, I have been notified there is a problem, this is what
             they have said. Let’s just use an example of a nuisance, a
             dog, barking dog. If they can’t stop the dog from


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                                 CURLEE V. JOHNSON

                                  BROOK, J., dissenting



             barking, they’re going to have to move or get rid of the
             dog and I have had many people move.

             Q: Because of a barking dog?

             [JOHNSON]: Because they can’t figure it out. You figure
             it out. If you don’t figure it out, I’ll figure it out.

             Q: So, you have the power to kick them out of there if they
             don’t stick to your policy even with a barking dog?

             [JOHNSON]: If that dog is a nuisance to other tenants and
             property owners, sure. Sure.

(Emphasis added.) He further testified that he has before exercised control over

tenants’ dogs by evicting tenants over an issue with an animal and that he has

required tenants to get rid of dogs.

      Accordingly, Johnson has not met his burden of establishing that no genuine

issue of material fact exists regarding his control over Talada and Craven’s dog.

                                       III. Conclusion

      Were I a juror and defense counsel made the majority’s arguments, I might

well be persuaded. But we are not there yet. At this stage in the proceedings, the

majority opinion steps beyond our limited role in a fashion at odds with our

precedent’s teaching that “[s]ummary judgment is an extremely drastic remedy that

should be awarded only where the truth is quite clear.” Volkman, 48 N.C. App. at

157, 268 S.E.2d at 267. Taking the facts in the light most favorable to Plaintiffs, as

is our duty here, there is no such clarity as to the matter at issue: whether Johnson



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                               CURLEE V. JOHNSON

                               BROOK, J., dissenting



knew the dog posed a danger. I respectfully dissent and would reverse the entry of

summary judgment.




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