Graham v. Morrison

ARNOLD, Judge. Defendant appeals from the trial judge’s grant of plaintiffs’ motion for summary judgment, ordering him to proceed with the purchase of two tracts of land from plaintiffs. Plaintiffs’ motion came at the end of all the evidence, and would have been more appropriately framed as a motion for directed verdict. Because the two motions are functionally similar, see Williams v. Carolina Power & Light Co., 296 N.C. 400, 404, 250 S.E. 2d 255, 258 (1979); Dendy v. Watkins, 288 N.C. 447, 452, 219 S.E. 2d 214, 217 (1975), [746] we will treat defendant’s appeal as from a directed verdict. The standard on review is similar to that employed on review of summary judgment. It is whether defendant presented sufficient evidence to take the case to the jury, or, whether the evidence, taken in the light most favorable to the defendant, raised an issue of material fact, which only a jury is capable to decide. See Cutts v. Casey, 278 N.C. 390, 418, 180 S.E. 2d 297, 312 (1971); Paccar Financial Corp. v. Harnett Transfer, Inc., 51 N.C. App. 1, 5, 275 S.E. 2d 243, 246 (1981). Our review of the record in this case, of the testimony of the parties and the history of ownership of land and interests in land in the vicinity of the tracts in dispute, persuades us that there were genuine issues of material fact and that the grant of summary judgment, which we treat as a directed verdict, was improper. The defendant testified that he desired to purchase the property at-issue in this case in order to build warehouses on it, subdivide the land, and then sell or lease the warehouses. He testified also that the plaintiffs’ real estate agent represented to him that this would be possible, and that there would be no problems with easements. Plaintiff said that he requested plaintiffs’ real estate agent to draft a provision in the binder, making the sale contingent on his having access to Rhyne Road over the present right of way across the Livingston Coating Company’s property. The “present right of way” was an easement of ingress and egress apparently granted by the Livingston Company in 1976 to the plaintiffs and to the Davant Realty Company, which owned adjacent property. Under the subdivision ordinance in effect in Mecklenburg County at the time of the negotiations and attempted transaction, the defendant could not have subdivided the property in dispute unless each subdivided lot had frontage on a public road. Defendant discovered at some point, apparently after he signed the binder, that the easement across the Livingston Company’s property was a private easement, not open to the general public. When he discovered this, he decided not to go through with the closing. Defendant’s testimony indicates that Mr. Black, the plaintiffs’ real estate agent, came back to defendant’s office after the binder was signed, and attempted to work out the easement problems. Mr. Black has testified in an affidavit that he made no representation to defendant about possible uses of the land. [747] Our review of the record indicates that there is a conflict in the evidence on the related factual issues of what defendant intended to do with the land, what uses the parties believed and represented could be made of the land, and what sort of easement the parties believed had been granted by the Livingston Coating Company. There is further dispute over the extent the sales agreement hinged on the parties’ beliefs about what uses could be made of the land. Conflict in the evidence regarding these factual issues means there is conflict on the question of whether the parties operated under a mutual mistake of fact in entering into the contract for sale of land. See generally Gardner Homes Inc. v. W. G. Gaither, 31 N.C. App. 118, 228 S.E. 2d 525 (1976); McKay v. McIntosh, 270 N.C. 69, 153 S.E. 2d 800 (1967). Given this eviden-tiary conflict on the elements of mutual mistake the trial judge’s refusal to allow the case to go to the jury was improper. We note that had defendant gone through with the purchase he would have received a sixty foot strip of land connecting the main tract of twenty-six acres with North Carolina Highway 27. It was then possible that he might have had another outlet to a public road, although this may have been restricted by the railroad and the thirty foot private easement, which crossed the strip before it reached the highway. What matters, though, is that defendant’s primary concern in entering the contract for sale of land, as evidenced by his insistence on the contingency clause, was the easement across the Livingston Company’s land to Rhyne Road. The fact that there might have been another right of way may go to the questions of whether defendant had reason to be concerned about access, and accordingly of whether his testimony about his objectives and*Mr. Black’s representations to him is credible, but it does not compel us to rule as a matter of law that there was no mutual mistake as to the potential uses of the easement. We observe finally that our doubts about the propriety of the directed verdict are heightened by the lack of any document in the record specifically describing the conditions of the Livingston Company’s easement. The grant of easement dated 24 August 1976 (Defendant’s Exhibit 2), is a grant from the plaintiffs to the Davant Realty Company of a right of way across plaintiffs’ land, most of which is the subject of this suit. The grant mentions the Livingston easement “of ingress and egress,” which ensures ac [748] cess to Rhyne Road for both the plaintiffs and the Davant Company (now Martin Marietta), but we have no document before us specifically granting or describing that easement. Indeed, the map offered as “Court’s Exhibit. One” does not even depict the easement across the Livingston property to Rhyne Road. Our understanding is that this case centers on that easement. In light of the inconclusiveness of the documentary evidence as to the nature of the easement we are skeptical that the trial judge could properly have determined that as a matter of law that the evidence so favored the plaintiffs that there was no jury question. We see no need to reach the other issues raised by the defendant. Reversed and remanded. Judges Wells and Hill concur.