Allen Hedgepeth v. Parker's Landing Property Owne

Filing 402873530

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:07-cv-00055-F Copies to all parties and the district court/agency. [998372704] [09-1768]

Allen Hedgepeth v. Parker's Landing Property Owne

Doc. 402873530

Case: 09-1768

Document: 32

Date Filed: 07/02/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1768

ALLEN TOBY HEDGEPETH, As Trustee Under The Allen Hedgepeth Declaration of Trust, Dated May 30, 2001, Plaintiff - Appellant, v.

Toby

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Affirmed by unpublished opinion.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.

Dockets.Justia.com

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Unpublished opinions are not binding precedent in this circuit.

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WILSON, District Judge: Plaintiff-appellant, Allen Toby Hedgepeth ("Hedgepeth"),

brought an action pursuant to the district court's diversity jurisdiction Association, against Inc. (the Parker's Landing Property Owners

"Association"),

defendant-appellee,

seeking a declaratory judgment that he has an easement over an established adjoining drive of owned land by he the Association at a benefiting an

tract

purchased

foreclosure

sale.

Alternatively, Hedgepeth sought a judgment declaring that quasiestoppel precludes the Association from denying the existence of that easement. The district two court entered easements a declaratory not the

judgment

recognizing

historical

but

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

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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 The of Commissioners County (the "Board Board of (the

Commissioners").
1

Currituck

Planning

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. The Belangias and the Midgettes hired Robbins independently and later learned that he was working on both of their proposed subdivisions. (J.A. 203.)
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"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 agreements, those negotiations, according to

various proposed

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. (J.A. 216-17.) the Left without But none were ever signed." the access Harbor necessary Shore to for enter

development, foreclosure.

Belangias

permitted

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

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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
3

vacate

the

premises,

the

Midgettes

would

have

them

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.

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arrested. Tract,

Fourteen

years

after

purchasing

the

Harbor against to ­

Shore the

Hedgepeth ­ the

filed

this

diversity in title the

action to MDE

Association Landing's judgment

successor areas," that

Parker's seeking to a an

"common declaring

including Parker's

Drive 4 is

Landing

subject

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

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. 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
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appeal.

Neither party raises the case's procedural posture as Rather, Hedgepeth frames the issue simply

an issue on appeal. 6

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.) 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.").
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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 for the an Midgettes easement, and which the the Belangias Final reached an

agreement

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. record of the parties Indeed, the unequivocal testimony of whom Hedgepeth contends reached an

agreement proves nothing was ever finalized.

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We

look

to

North

Carolina

law

to

determine

what

is

necessary for the creation of an express easement. easement is an interest of in land (and of thus subject to

Because an to North an

Carolina's

statute

frauds)

words

intent

create

easement must be memorialized and signed by the party to be charged. Membership Although express See N.C. GEN STAT. § 22-2; Singleton v. Haywood Elec. Corp., 565 S.E.2d words 234, are 238 (N.C. App. to ZP 2002). an

"[n]o

particular Z.A.

necessary" Inc. v.

create No.

easement,

Sneeden's

Sons,

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 clearly show to the intention that to give an "any words which . . . are is

easement the

sufficient

effect

purpose,

provided

language

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

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the intention to give an easement." 660 S.E.2d at 209.

Z.A. Sneeden's Sons, Inc.,

If anything, it merely provides notice that Hedgepeth it is

it is necessary to look elsewhere for an agreement. conceded as much at oral argument when he

admitted

necessary to look beyond the Final Plat to find an agreement creating an easement over the Drive. Of course, in light a of the deposition for that testimony agreement of the

negotiating

parties,

search

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)

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." 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. 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
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("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). think the conduct of the parties to the supposed We

agreement

speaks volumes on this point. the Belangias abandoned their

Unable to secure an agreement, venture and permitted their

property to enter foreclosure. the parties believed their

Yet, nearly fifteen years after had failed to bear

negotiations

fruit, Hedgepeth, the purchaser at foreclosure and a stranger with no firsthand claims knowledge that that the the they of the parties' parties negotiations, were a simply binding seems

essentially wrong to

negotiating had not

believe Under

entered

into

contract.

circumstances,

Hedgepeth's

claim

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 Shore's access. Board, final however, plat ultimately Harbor denied Shore the approval lacked of the

Harbor required

because this

Against

backdrop

(and

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.

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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 predecessor representing in to contends title the that because approval Board of the its it Association's final had plat by the

obtained Planning

that

given

proposed Harbor Shore development a right-of-way over the Drive, quasi-estoppel position that precludes there is the no Association over from the taking the The

easement

Drive. 10

Association counters that there are no facts to support this claim. We agree and affirm on this ground. or estoppel by benefit, see Carolina

Quasi-estoppel,

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 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).
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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 or avoid its obligation by later or effect a under the

transaction

instrument

taking

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 Board granted claim seems of strained, Parker's given that the final

Planning

approval

Landing's

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