              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-50

                              Filed: 21 November 2017

Guilford County, No. 13 CVS 6027

PLUM PROPERTIES, LLC, Plaintiff,

             v.

JAVENO NAJAHWANN HOLLAND, TARA LATRICE DIALLO formerly TARA
LATRICE COVINGTON, DONALD RAY LITTLEJOHN, JR., JEREMY TUCKER,
DELISA L. THOMPSON (a/k/a DELISA L. SPARKS and TUCKER), ARNOLD F.
SPAUGH, MATEJ SELAK, SABAHETHA SELAK, JUSTIN LASHAWN WILLIAMS
AND IRMA ELIZABETH ZIMMERMAN, Defendants.


      Appeal by Plaintiff from order entered 5 June 2014 by Judge Susan E. Bray in

Guilford County Superior Court. Heard in the Court of Appeals 9 August 2017.


      Gregory A. Wendling, for Plaintiff-Appellant.

      Teague, Rotenstreich, Stanaland, Fox & Holt, PLLC, by Stephen G. Teague, for
      Defendant-Appellees.


      MURPHY, Judge.


      Where property owners were damaged by the intentional acts of minor

children, the parents cannot be held liable if they did not know or should not have

known of the necessity for exercising such control. The minors’ “sneaking out” and

resulting injury to personal property could not have been prevented by the exercise

of reasonable care by the parents.      Summary judgment is proper in favor of

defendants when plaintiffs can show no genuine issue of material fact to support their
                                 PLUM PROPS., LLC V. HOLLAND

                                         Opinion of the Court



claims that the parents were negligent or in breach of duty to supervise their minor

children.

       Plum Properties, LLC (“Plaintiff”) sued in Guilford County Superior Court on

claims of negligence, breach of parent’s, guardian’s, and/or responsible adult’s duty

to supervise minor children, trespass to real and personal property, private nuisance,

parental strict liability for destruction of property by minors, and punitive damages

against the above named Defendants. The trial court granted a motion for partial

summary judgment for Sabahetha Selak and Delisa Sparks (“Defendants”)

dismissing the claims of             negligence, breach of parent’s, guardians’s and/or

responsible adult’s duty to supervise minor children, trespass to real and personal

property, private nuisance, and punitive damages.1 Defendants did not move for

summary judgment as to the complaint of parental strict liability for destruction of

property by minors. After a bench trial, judgment was entered against Defendants

in favor of Plaintiff on 26 August 2016 for $6,0000 each. On appeal, Plaintiff argues

that genuine issues of material facts as to its claims of negligence and failure to

supervise minor children exist relative to Defendants, and thus partial summary

judgment was not appropriate. We affirm the trial court’s order, concluding that



1 Our Court has jurisdiction for determination of this appeal under N.C.G.S. §§ 7A-27(b)(1) and 1-
277(a) (2015), as the Order Granting Motion for Partial Summary Judgment is now ready for appeal
as there have been final judgments entered in the underlying action. Plaintiff does not argue nor cite
authority in its brief in support of its claim for nuisance, trespass, or punitive damages. These claims
are deemed abandoned. N.C.R. App. P. 28(b)(6) (2016).


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                                 Opinion of the Court



there were no genuine issues of material fact existing relative to Defendants, and

thus partial summary judgment by the trial court was appropriate.

                                   Background

      On three separate occasions between 5 to 21 November 2010, Defendants

Javeno Holland, Justin LaShawn Williams, Matej Selak, and Jeremy Tucker broke

into and vandalized four neighborhood properties owned by Plaintiff. At the time of

the vandalisms, Defendants Matej Selak and Jeremy Tucker were both juveniles and

lived with their mothers, Sabahetha Selak and Delisa L. Sparks, respectively.

Defendants Matej Selak and Jeremy Tucker testified that, on each occasion of

vandalism, they had “snuck out” of the Defendant Delisa Sparks’s residence.

      Defendants testified that they had no prior knowledge of their sons sneaking

out of the Sparks’s residence. Although Matej Selak and Jeremy Tucker both

admitted to trying marijuana once, both parents also testified that they did not know

of their respective sons using marijuana prior to 2010. Both parents kept reasonable

rules concerning their children’s curfew and behavior. Matej Selak admitted that he

had snuck out of his mother’s house on two occasions. Jeremy Tucker testified that

he too had snuck out of his mother’s house “once or maybe twice.” Both Matej Selak

and Jeremy Tucker testified that they had not previously engaged in vandalism or

acts of property damage.




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                                   Opinion of the Court



      Defendant Javeno Holland testified that he had heard that Matej Selak had

been involved in “something about him messing up [a] football field”, and that Jeremy

Tucker had been involved previously in an act of vandalism with Jeremy’s uncle,

although he could provide no details for either claim or vouch for whether or not they

were true.

                                       Analysis

      “Our standard of review of an appeal from summary judgment is de novo[.]” In

re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted).

Summary judgment is appropriately granted if the movant can prove that “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.” N.C.G.S § 1A-1,

Rule 56 (2015); In re Estate of Redding v. Welborn, 170 N.C. App. 324, 329-30, 612

S.E.2d 664, 668 (2005). The movant may meet its burden “(1) by showing an essential

element of the opposing party’s claim is nonexistent or cannot be proven, or (2) by

showing through discovery that the opposing party cannot produce evidence to

support an essential element of his or her claim.” Belcher v. Fleetwood Enters., Inc.,

162 N.C. App. 80, 84, 590 S.E.2d 15, 18 (2004). Upon production of evidence

supporting the motion for summary judgment, the burden then shifts to the non-

movant to produce evidence of a prima facie case at trial. Welborn, 170 N.C. App. at



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329, 612 S.E.2d at 668. Here, Plaintiff failed to meet its burden on the elements of

its claims for negligence and breach of parent’s, guardians’s, and/or responsible

adult’s duty to supervise minor children by failing to produce any admissible evidence

of a prima facie case at trial.


       “The correct rule is that the parent of an unemancipated child may be held

liable in damages for failing to exercise reasonable control over the child’s behavior if

the parent had the ability and the opportunity to control the child and knew or should

have known of the necessity for exercising such control.” Moore v. Crumpton, 306 N.C.

618, 623, 295 S.E.2d 436, 440 (1982) (citations omitted) (emphasis added).


       In Moore, our Supreme Court held that the parents were not liable for

negligent parental supervision of their seventeen year old minor, who threatened and

raped a woman. The minor had a history of substance abuse, regularly using

marijuana and other controlled substances. The parents were aware of the substance

abuse at all times. The minor was also in possession of a number of weapons given

to him by his parents. The parents were aware of his instability, but left him home

alone while going on vacation. During this time, the minor took a number of drugs,

and broke into a girl’s house, and raped her. Id. at 621-25, 295 S.E.2d at 439-41. There

were discrepancies in the testimony which suggested that Moore’s father may have

been home and asleep when the child snuck out. Id. at 626, 295 S.E.2d at 442.




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      Our Supreme Court determined that the parents had no opportunity to control

their child. “Short of standing guard over the child twenty-four hours a day, there

was little that the defendant father could do to prevent [the minor] from leaving the

home after the father was asleep.” Id. at 626-27, 295 S.E.2d at 442. Our Supreme

Court also determined that after midnight, when the parents were typically asleep,

was “a time when parents ordinarily would not be expected to be engaged in

maintaining surveillance of their children.” Id. at 626, 295 S.E.2d at 442.

Furthermore, the Supreme Court found that even with the plethora of evidence

showing the parents were aware of his previous issues and substance abuse problems,

this awareness did not “support a conclusion that the father knew or should have

known that his failure more closely to control [the minor] would result in generally

injurious consequences to anyone other than, perhaps, [the minor].” Id. at 628, 295

S.E.2d at 443.


      In the instant case, Defendants had no reason to suspect their sons would

break into and vandalize Plaintiff’s property, and they would not have had an

opportunity to exercise control over them. On each occurrence of vandalism, the boys

“snuck out” while Delisa Sparks was asleep and while the boys were supposed to be

asleep at the Sparks’s home in the late night or early morning hours of the day. These

are hours, as stated in Moore, when parents would ordinarily be expected to be in bed

and not expected to be surveilling their children.       Furthermore, the parents did not


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have any indication their children were out to cause any trouble in the neighborhood.

While the boys admitted to trying marijuana previously and admitted such to their

parents, this was not an indication that they would engage in destructive behavior.


      The testimony given by Javeno Holland stating that the boys had engaged in

destructive acts in the past is inadmissible hearsay, and cannot be used to meet the

burden of production necessary to defeat summary judgment for Defendants. In order

to support a motion for summary judgment, affidavits and accompanying evidence

must be made on “personal knowledge, . . . [and] be admissible in evidence.” N.C.R.

Civ. P. 56(e) (2017) (emphasis added). Inadmissible hearsay evidence cannot be used

in opposition to a motion for summary judgment. Rankin v. Food Lion, 210 N.C. App.

213, 220, 706 S.E.2d 310, 315 (2011) (holding that hearsay evidence should not be

considered with respect to a motion for summary judgment).


      While Javeno Holland testified that he heard Matej Selak had “messed up” a

football field at one time, and that Jeremy Tucker once reported an incident of

vandalism involving his uncle, Holland was neither testifying of his own personal

knowledge, nor were the statements by a party opponent.           This testimony is

inadmissible hearsay. Assuming, arguendo, this testimony had been admissible,

these events would not rise to the level required under Moore or alert the parents

that they should have known that their sons would commit vandalism, as they had



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no recent information to indicate that another such instance might occur. Moore, 306

N.C. at 627, 295 S.E.2d at 442.


                                    Conclusion


      The trial court correctly found that there were no genuine issues of material

fact as to the preserved claims against Defendants. Accordingly, we affirm Judge

Bray’s grant of partial summary judgment in Defendants’ favor.


      AFFIRMED.

      Judges HUNTER, JR. and JUDGE DAVIS concur.




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