An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-881
                       NORTH CAROLINA COURT OF APPEALS

                              Filed:     15 July 2014


SHELBY J. GRAHAM,
     Plaintiff,

      v.                                            Guilford County
                                                    No. 12 CVS 4672
DEUTSCHE BANK NATIONAL TRUST
COMPANY, as Trustee under Pooling
and Servicing Agreement dated as of
November 1, 2005, Morgan Stanley
Home Equity Loan Trust 2005-4
Mortgage Pass through Certificates,
Series 2005-4,
     Defendant/Third-Party Plaintiff,

      v.

BRANCH BANKING AND TRUST COMPANY,
     Third-Party Defendant.


      Appeal by defendant from order entered 19 March 2013 by

Judge Lindsay R. Davis, Jr. in Guilford County Superior Court.

Heard in the Court of Appeals 11 December 2013.


      Pendergrass Law Firm, PLLC, by James K. Pendergrass, Jr.,
      for plaintiff-appellee and third-party defendant-appellee.

      Roberson Haworth & Reese, P.L.L.C., by Alan B. Powell and
      Christopher C. Finan, for defendant/third-party plaintiff-
      appellant.


      DAVIS, Judge.
                                             -2-
       Deutsche Bank National Trust Company (“Defendant”) appeals

from the trial court’s order awarding summary judgment in favor

of Shelby J. Graham (“Plaintiff”) on her trespass claim.                                   On

appeal, Defendant argues that summary judgment should instead

have   been     granted        in   its    favor      because    Plaintiff     failed      to

establish an essential element of her claim.                               After careful

review, we reverse the trial court’s order and remand for entry

of summary judgment in favor of Defendant.

                                    Factual Background

       Plaintiff and Defendant are the owners of two adjoining

parcels of land in the Mayfield Village subdivision (“Mayfield

Village”)       in      Guilford       County,     North     Carolina.         Plaintiff

acquired     Lot       1,    Section   1   of    Mayfield       Village    (“Lot     1”)   by

general warranty deed on 25 July 1996.1                      Plaintiff did not have

Lot 1 surveyed at the time of purchase.                      Defendant acquired Lot

2,    Section      1    of    Mayfield     Village      (“Lot     2”)     pursuant    to    a

trustee’s deed recorded on 28 May 2010.                          Similarly, Defendant

did    not    have      Lot    2    surveyed     at    the   time    it    acquired        the

property.




1
  The deed listed Shelby G. Coffer — Plaintiff’s married name —
as the grantee.   Plaintiff is no longer married, and in 2001,
Plaintiff executed and recorded a deed conveying Lot 1 to Shelby
J. Graham.
                                              -3-
       In       September      of    2010,       one     of    Plaintiff’s           neighbors

approached her and expressed an interest in purchasing Lot 2

from Defendant.           Plaintiff’s neighbor asked her if she was aware

“that there was a property line dispute between [Lot 1] and [Lot

2].”        Plaintiff     replied      that      she    did   not    know       of   any    such

dispute.

       In    early    2011,     another       individual,          Danny       Frazier     (“Mr.

Frazier”),        approached        Plaintiff,          expressed         an    interest      in

acquiring Lot 2, and inquired about a property line dispute.                                  At

some   point,       Mr.    Frazier     had       the   property      surveyed,        and    the

survey      —    which    he    provided         to    Plaintiff     —     indicated        that

portions of the house and septic system on Lot 2 encroached on

Lot 1.

       Plaintiff’s title insurance company then contacted Boswell

Surveyors,        Inc.    to    prepare      a    survey      of    the    property        (“the

Boswell survey”).              The Boswell survey likewise indicated that

the house and septic system on Lot 2 — which were constructed in

1994 — are “in fact partially located on Lot 2 Mayfield Village

and partially encroach[] over onto Lot 1.”

       On 8 March 2012, Plaintiff’s attorney sent a                                  letter to

Defendant         demanding         that     the       encroaching         structures         be

immediately        removed     from    Lot       1.     The   letter       stated     that    if
                                              -4-
Defendant did not respond within seven days, a civil action

would be filed.

       Twelve      days    later,         Plaintiff   filed     a   complaint   against

Defendant in Guilford County Superior Court alleging that the

encroaching structures were an “ongoing and continuing trespass”

on her property.               On 23 May 2012, Defendant filed an answer,

counterclaims for reformation of its deed and to quiet title,

and a third-party complaint against Branch Banking and Trust

Company (“BB&T”), the holder of the deed of trust encumbering

Plaintiff’s property.                Defendant filed an amended answer on 18

July    2012,         adding    a     counterclaim        for   adverse   possession.

Defendant        voluntarily        dismissed       its   counterclaim    for   adverse

possession on 31 October 2012.

       On   13    February       2013,      Plaintiff     and   BB&T   filed    a   joint

motion for summary judgment pursuant to Rule 56 of the North

Carolina Rules of Civil Procedure.                        Following a hearing, the

trial court entered an order on 19 March 2013 granting summary

judgment in favor of Plaintiff and BB&T in part and ordering

Defendant        to    remove       the    encroaching     structures.         Defendant

appealed to this Court.

                                           Analysis
                                            -5-
       We first note that the trial court’s 19 March 2013 order

was    a   grant    of     partial      summary    judgment   and    is,    therefore,

interlocutory.           See Curl v. Am. Multimedia, Inc., 187 N.C. App.

649,   652,   654        S.E.2d   76,    78-79    (2007)   (“A   grant     of   partial

summary judgment, because it does not completely dispose of the

case, is an interlocutory order from which there is ordinarily

no right of appeal.” (citation and quotation marks omitted)).

An interlocutory order may be appealed, however, if the order

implicates a substantial right of the appellant that would be

lost if the order was not reviewed prior to the issuance of a

final judgment.            Guilford Cty. ex rel. Gardner v. Davis, 123

N.C. App. 527, 529, 473 S.E.2d 640, 641 (1996).                      This Court has

previously     held        that   “ordering        the   removal    of     substantial

structures from real property affects [a] substantial right, and

therefore,         the     partial       summary     judgment       is     immediately

appealable.”         Keener v. Arnold, 161 N.C. App. 634, 637, 589

S.E.2d 731, 733 (2003), disc. review denied, 358 N.C. 376, 598

S.E.2d 136 (2004).            As such, the order requiring Defendant to

remove the portion of the house located on Lot 1 affects a

substantial right and is immediately appealable.

       We review an order granting summary judgment de novo.                         In

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008).
                                        -6-
“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 any party is entitled to a

judgment as a matter of law.”                 Premier, Inc. v. Peterson, ___

N.C.    App.    ___,   ___,   755   S.E.2d     56,   59   (2014)    (citation     and

quotation marks omitted).           When ruling on a motion for summary

judgment, the trial court “must consider the evidence in the

light most favorable to the nonmovant, who is entitled to the

benefit    of    all   favorable    inferences       which   may   reasonably     be

drawn    from    the    facts    proffered.”         First    Commerce     Bank   v.

Dockery, 171 N.C. App. 297, 299-300, 615 S.E.2d 314, 316 (2005)

(citation and quotation marks omitted).

       Here, Defendant argues that summary judgment was improperly

granted in favor of Plaintiff and BB&T because Plaintiff cannot

prove all of the essential elements of her trespass claim.                      “[A]

claim of trespass requires: (1) possession of the property by

plaintiff       when   the    alleged   trespass      was    committed;     (2)    an

unauthorized entry by defendant; and (3) damage to plaintiff.”

Singleton v. Haywood Elec. Membership Corp., 357 N.C. 623, 627,

588 S.E.2d 871, 874 (2003) (citation and quotation marks omitted

and emphasis added).            In the present case, the pleadings and
                                                  -7-
depositions before the trial court showed that (1) Plaintiff

purchased Lot 1 in 1996; and (2) the house and septic system on

Lot 2 were constructed in 1994.                            As such, because Plaintiff did

not possess Lot 1 at the time the encroaching structures were

built, Plaintiff cannot satisfy the first element of trespass.

       In reaching this conclusion, we are guided by our decision

in   Woodring     v.    Swieter,            180    N.C.       App.    362,       637    S.E.2d       269

(2006).     In Woodring, a property owner brought a trespass claim

against     the    owners          of        adjoining            property        based       on     the

defendants’       installation              of    an        underground          waterline         which

encroached on the plaintiff’s land.                              Id. at 366, 637 S.E.2d at

274.     We concluded that the trial court had properly granted

summary     judgment         in    favor          of       the     defendants          because      the

plaintiff      “obtained          no       legally         recognized       interest       in      [the

property]      until     .    .        .    approximately            six        years    after       the

installation      of    the       waterline            —    the    date    when     the    original

trespass was committed” and, therefore, could not satisfy the

first element of a claim for trespass.                               Id. at 376, 637 S.E.2d

280.     Similarly, because Plaintiff in the present case did not

obtain     a    legally           recognized               interest        in     Lot     1        until

approximately          two    years           after          the     construction             of     the
                                   -8-
encroaching structures on Lot 2, we are compelled to reach the

same result here.

      While Plaintiff attempts to rely upon this Court’s decision

in Bishop v. Reinhold, 66 N.C. App. 379, 311 S.E.2d 298, disc.

review denied, 310 N.C. 743, 315 S.E.2d 700 (1984), her reliance

on Bishop is misplaced.          In Bishop, the trial court entered

judgment on the jury’s verdict that the defendants had committed

a wrongful trespass by constructing a portion of their home on

the plaintiffs’     land.      Id. at 380, 311 S.E.2d at 299.             On

appeal, the defendants in Bishop did not dispute the fact that

the plaintiffs owned the property at the time the defendants’

encroaching structure was constructed and instead argued that

the   trespass   claim   was   barred   by   the   three-year   statute   of

limitations for a continuing trespass because it was brought

seven years after the construction of the encroaching house.

Id.   We concluded that the trial court had properly determined

that the plaintiffs’ trespass action was not time-barred because

           [t]he wrongful maintenance of a portion of
           the   defendants’  dwelling   house   on  the
           plaintiffs’    lot   is   a    separate   and
           independent trespass each day it so remains
           and the three-year statute for removal
           begins to run each day the encroaching
           structure remains upon the plaintiffs’ land.

Id. at 384, 311 S.E.2d at 301.
                                            -9-
       In Bishop, the plaintiffs had owned the property at issue

when the defendants’ encroaching house was built.                          Id. at 381,

311   S.E.2d       at   300.       Thus,   unlike    in    the     present   case,    the

plaintiffs in Bishop had possession of the property when the

alleged trespass was first committed.                       As such, while Bishop

stands for the proposition that a continuing encroachment on

one’s property is an independent trespass each day for purposes

of    the     statute        of   limitations,      nothing       in   Bishop   permits

Plaintiff to escape her burden of establishing the first element

of a trespass claim — that she was in possession of the property

at the time the original trespass occurred.                       See Young v. Lica,

156    N.C.    App.     301,      305,   576     S.E.2d   421,     424   (2003)    (“The

elements      of    a    trespass        claim    are     that     plaintiff    was   in

possession of the land at the time of the alleged trespass; that

defendant made an unauthorized, and therefore unlawful, entry on

the land; and that plaintiff was damaged by the alleged invasion

of    his   rights      of    possession.”       (citation       and   quotation   marks

omitted and emphasis added)).

       Accordingly, on the facts before us, an essential element

of Plaintiff’s trespass claim is lacking, and, for this reason,

summary judgment should have been entered in favor of Defendant.

See Kinesis Adver., Inc. v. Hill, 187 N.C. App. 1, 10, 652
                                    -10-
S.E.2d 284, 292 (2007) (explaining that defendant is entitled to

summary judgment upon a showing that “an essential element of

the   plaintiff’s   case   is    non-existent”),    appeal   dismissed    and

disc. review denied, 362 N.C. 177, 658 S.E.2d 485 (2008).

                                 Conclusion

      For the reasons stated above, we reverse the trial court’s

order   granting    summary     judgment   for   Plaintiff   and   BB&T   and

remand for entry of summary judgment in favor of Defendant.

      REVERSED AND REMANDED.

      Judges STEELMAN and STEPHENS concur.

      Report per Rule 30(e).
