NO. COA13-686

NORTH CAROLINA COURT OF APPEALS

Filed: 15 April 2014

DUKE ENERGY CAROLINAS, LLC,

Plaintiff

v.

BRUTON CABLE SERVICE, INC., 

Defendant/Third-Party 

Plaintiff

Randolph County

No. 11 CVS 1771

v. 

ROBERT WAYNE TAYLOR and wife, LOIS 

K. TAYLOR; DAVIS-MARTIN-POWELL AND 

ASSOCIATES, INC., and JON ERIC 

DAVIS, 

Third-Party Defendants

Appeal by defendant/third-party plaintiff from order

entered 11 October 2012 by Judge Lucy N. Inman in Randolph

County Superior Court. Heard in the Court of Appeals 6 November 

2013.

Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. 

Biesecker, for third-party plaintiff-appellant Bruton Cable 

Service, Inc.

Pharr Law, PLLC, by Steve M. Pharr, for third-party 

defendant-appellees Davis-Martin-Powell and Associates, 

Inc. and Jon Eric Davis.

CALABRIA, Judge.
-2-

Defendant/third-party plaintiff Bruton Cable Service, Inc. 

(“Bruton”) appeals from an order granting summary judgment in 

favor of third-party defendants Davis-Martin-Powell and 

Associates, Inc. (“DMP”) and Jon Eric Davis (“Davis”) 

(collectively “defendants”). Bruton voluntarily dismissed its 

claims against third-party defendants Robert Wayne Taylor and 

Lois K. Taylor (“the Taylors”) on 29 April 2013. Duke Energy 

Carolinas, LLC (“Duke”) voluntarily dismissed its claims against 

Bruton on 2 May 2013. Neither the Taylors nor Duke are parties 

to the instant appeal. We reverse.

I. Background

In April 2005, Bruton, a North Carolina corporation, 

purchased Lots 7 and 59 (“the property”) from the Taylors. The 

property was located in the Randolph Hills Subdivision, Phase II 

(“the subdivision”), in Randolph County, North Carolina. Prior 

to Bruton’s ownership of the property, DMP, a North Carolina 

corporation engaged in the business of surveying, engineering, 

and land planning, prepared the plat. Davis, a DMP employee and 

registered surveyor, certified the plat that was recorded on 8 

July 2003 at Plat Book 84, Page 95 at the Randolph County 

Register of Deeds. The final recorded plat showed Duke’s right-
-3-

of-way easement (the “Duke easement” or “Duke’s easement”)

pursuant to an agreement dated 20 May 1970.

According to Davis’ plat, Duke’s easement extended 150 feet 

over and across Lots 7 and 59 of the subdivision. Relying on 

the information in the recorded final subdivision plat (“the 

plat”) depicting a 150-foot Duke easement, Bruton planned the 

location of single-family homes and a septic tank repair and 

drain field on the property. Bruton began construction in 2006. 

On 31 October 2006, Duke representative Ervin Summers 

(“Summers”) visited the property to determine whether the 

construction was within Duke’s easement. Summers then sent 

Bruton a letter dated 8 February 2007 stating Duke’s objection 

to all encroachments that existed within Duke’s deeded and 

recorded 200-foot easement for the property. Summers requested

the removal of the encroachments on Duke’s easement. At the

time Bruton received Duke’s letter, the house on Lot 59 was 

almost complete and the house on Lot 7 was approximately 60% 

complete. Bruton also sent DMP several letters regarding the 

encroachment due to the inaccurate survey. 

On 7 July 2011, since the parties were unsuccessful in 

negotiations regarding the disputed easement, Duke filed a 

complaint against Bruton alleging that a portion of Bruton’s 
-4-

house that was under construction encroached upon Duke’s 

easement, and sought, inter alia, an order to remove the 

encroachment from the 200-foot wide electrical transmission line 

easement. Duke also sought a permanent injunction against 

Bruton, prohibiting it from further interfering with Duke’s 

ability to protect the safety of the public, provide reliable 

electrical service to the public, and properly and safely 

maintain its transmission lines. 

On 22 December 2011, Bruton filed an answer and a thirdparty complaint against DMP and Davis. In its answer, Bruton

denied liability and acknowledged that any alleged liability was 

the result of Bruton’s reasonable and justifiable reliance upon 

defendants’ actions, representations, and warranties that the 

Duke easement was 150 feet wide. 

In its third-party complaint against defendants, Bruton 

alleged, inter alia, that 

DMP and Davis, in the course of their 

business and profession, prepared the final 

map for the Randolph Hills Subdivision, 

Phase II, for the benefit of persons who 

would acquire Lots 7 and 59. [Defendants] 

reasonably knew that a purchaser of Lots 7 

and 59 would reasonably rely on the 

information and representation contained in 

that survey as shown on the map.

33. In performing the services necessary for 

the production of the map . . . [defendants] 
-5-

were required to comply with the provisions 

of N.C.G.S. § 47-30(f)(8). [Defendants] did 

not comply with that statute. The failure 

to comply with that statute caused [Bruton] 

to incur damages. That statute was enacted 

for the benefit and protection of the 

general public. [Bruton], as a purchaser of 

Lots 7 and 59 and as a member of the general 

public, is one of the class of persons for 

whose benefit [defendants] supplied the 

information and statements shown on the 

plat. [Bruton] is a person for whose 

protection that statute was enacted by the 

legislature. Although [Bruton] was not 

personally aware of the defect in the map, 

[Bruton] was entitled to rely on the 

accuracy of that map. [Defendants] knew or 

should have known that members of the public 

such as [Bruton] and other purchasers of 

lots in that subdivision would rely on the 

accuracy of that map.

34. On or about 29 April 2005 [Bruton] 

acquired ownership of Lots 7 and 59, Phase 

II, Randolph Hills Subdivision according to 

the plat which is duly recorded in Plat Book 

84, Page 95 in the Register of Deeds of 

Randolph County, North Carolina. 

. . .

37. [Bruton] reasonably relied on 

[defendants’] representation of the [Duke] 

easement as shown on the final recorded map.

38. After acquiring the two lots, [Bruton] 

began construction of a house on each lot in 

late 2006. Each house was located in order 

to comply with the required set-back and 

zoning limits, the requirements of the 

Restrictive Covenants, other applicable laws 

and rules and outside the [Duke] easement as 

shown on the plat prepared by [defendants]. 

[Bruton’s] agents relied on the plat.
-6-

39. On or about February 10, 2007, [Bruton] 

received a letter dated February 8, 2007 

from [Duke]. The letter asserted that 

[Duke] had a 200-foot wide easement on Lots 

7 and 59. [Duke] informed [Bruton] that no 

portion of either house, driveway, septic 

system or other improvements could be 

located within any area of the 200-foot wide 

easement.

. . .

41. When [Bruton] received that letter, the 

house on Lot 59 was almost complete and the 

house on Lot 7 was approximately sixty 

percent (60%) complete. To mitigate 

possible damages, [Bruton] ceased work on 

each house and incurred expenses to relocate

the septic tank system on Lot 59 outside of 

the alleged Duke easement. Approximately 

50% of the house on Lot 7 is within the 

alleged [Duke] easement. If the Court 

grants [Duke] any or all the relief it 

requests, the house on Lot 7 will have to be 

disassembled and demolished. Both houses 

were planned as single-family residences.

42. [Bruton] spent approximately $191,301.90 

for Lot 7 and construction of the house on 

Lot 7. [Bruton] spent approximately 

$224,821.23 for Lot 59 and construction of 

the house on Lot 59. [Bruton] will have to 

remove the house on Lot 7 and remove the 

unused septic system from encroaching on the 

easement. [Bruton] will incur expenses.

43. [Defendants] were negligent in that they 

failed to accurately identify and locate the 

[Duke] easement on the map . . . as required 

by N.C.Gen.Stat. [sic] § 47-30(f)(8) and 

other applicable law. Such failure 

constitutes negligence. [Defendants] failed 

to exercise that care and competence in 
-7-

obtaining and communicating accurate 

information regarding the [Duke] easement. 

[Defendants] negligently misrepresented the 

accurate width of the [Duke] easement. The 

actions of [defendants] constitute a mistake 

on their part.

44. As a direct and proximate result of 

[defendants’] negligence, [Bruton] has been 

damaged in an amount incurred or to be 

incurred in excess of $10,000.00 for 

purchase price of each lot, construction of 

each house, removal of the house on Lot 7 

and removal of the septic tank system on Lot 

59.

45. [Bruton] could not have prevented the 

damages it has incurred or will incur.

On 9 January 2012, defendants filed an answer to Bruton’s 

third-party complaint. As one of the affirmative defenses, 

defendants alleged Bruton’s claims were barred by the statute of 

limitations. On 18 July 2012, defendants filed a motion to 

dismiss the complaint, and in the alternative, a motion for 

summary judgment. After a hearing on 17 September 2012, at 

which defendants specifically argued that Bruton’s claim was 

time-barred by the statute of limitations, the trial court 

granted summary judgment in favor of defendants. Bruton 

appeals.

II. Standard of Review

“Our standard of review of an appeal from summary judgment 

is de novo; such judgment is appropriate only when the record 
-8-

shows that ‘there is no genuine issue as to any material fact 

and that any party is entitled to judgment as a matter of law.’” 

In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 

(2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 

382, 385 (2007)). “A genuine issue of material fact arises when 

the facts alleged . . . are of such nature as to affect the 

result of the action.” N. Carolina Farm Bureau Mut. Ins. Co. v. 

Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 116 (2011) (citation 

and quotation marks omitted). In a summary judgment motion, the 

court may consider “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the 

affidavits” to see if there is any genuine issue of material 

fact. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2013). This Court 

reviews the pleadings and all other evidence in the record in 

the light most favorable to the nonmoving party and draws all 

reasonable inferences in that party’s favor. Sadler, 365 N.C. 

at 182, 711 S.E.2d at 117.

III. Summary Judgment

Bruton argues that the trial court erred in admitting 

unsworn letters and considering them in the decision to grant 

defendants’ motion for summary judgment, and more importantly by 

basing that decision on the statute of limitations. We agree.
-9-

A. Admission of Correspondence

As an initial matter, submitted affidavits must meet the 

requirements of Rule 56(e) of the North Carolina Rules of Civil 

Procedure: “affidavits shall be made on personal knowledge, 

shall set forth such facts as would be admissible in evidence, 

and shall show affirmatively that the affiant is competent to 

testify to the matters stated therein.” N.C. Gen. Stat. § 1A-1, 

Rule 56(e) (2013). Unsworn letters and correspondence are not 

the type of evidence considered by the court pursuant to Rule 

56, and should not be considered during summary judgment. 

Strickland v. Doe, 156 N.C. App. 292, 296, 577 S.E.2d 124, 129 

(2003). Instead, “parties are required to set forth facts in 

affidavits or as otherwise provided.” Id., 577 S.E.2d at 129 

(quotation marks omitted). See also Draughon v. Harnett Cty. 

Bd. of Educ., 158 N.C. App. 705, 709, 582 S.E.2d 343, 345-46 

(2003) (unsworn statements and inadmissible hearsay “cannot be 

relied upon” in a summary judgment motion).

In the instant case, defendants introduced several letters 

between Bruton’s counsel and defense counsel purporting to 

support their summary judgment motion. While defendants contend 

the letters were offered for the purpose of showing Bruton’s 

awareness of damages, the reason for offering the letters does 
-10-

not negate the fact that the letters themselves were unsworn 

correspondence that did not comply with the requirements of Rule 

56. 

Bruton also argues that the letters should not have been 

admitted because they contained impermissible hearsay, legal 

opinions and presumptions, and statements in the course of 

settlement negotiations. However, since the trial court erred 

by improperly considering unsworn correspondence between 

Bruton’s counsel and defense counsel, and defendants did not 

comply with the requirements of Rule 56, it is unnecessary to 

address these arguments.

B. Statute of Limitations

In addition to considering unsworn correspondence, we 

address whether the Bruton’s third-party action was barred by 

the statute of limitations. 

To determine whether Bruton timely filed its third-party 

complaint, we must determine when Bruton, as the aggrieved 

party, became entitled to maintain an action. Bruton 

specifically alleged in the third-party complaint that 

defendants, as registered land surveyors, negligently 

misrepresented the accurate width of the Duke easement. 

According to our Supreme Court in Raftery v. Wm. C. Vick Constr. 
-11-

Co., a statute of limitations begins to run against an aggrieved 

party when that aggrieved party becomes entitled to maintain an 

action for the wrongful act that was committed. 291 N.C. 180, 

186-87, 230 S.E.2d 405, 408 (1976) (citation omitted). In a 

claim specifically alleging negligent misrepresentation, the 

cause of action accrues when two events occur: (1) the claimant 

discovers the misrepresentation, and (2) the claimant suffers 

harm because of the misrepresentation. Guyton v. FM Lending 

Servs., Inc., 199 N.C. App. 30, 35, 681 S.E.2d 465, 478 (2009)

(citation omitted).

Although defendants contend that N.C. Gen. Stat. § 1-52(16) 

should apply, N.C. Gen. Stat. § 1-52(18) specifically excludes § 

1-52(16) and includes § 1-47(6). Pursuant to N.C. Gen. Stat. § 

1-52(18) (2013), a three-year limitation applies to actions 

“[a]gainst any registered land surveyor . . . or any person 

acting under his supervision and control for physical damage or 

economic or monetary loss due to negligence or a deficiency in 

the performance of surveying or platting as defined in G.S. 1-

47(6).” According to N.C. Gen. Stat. § 1-47(6), an action 

against any registered land surveyor and any person acting under 

his supervision or control for physical damage or for economic 

or monetary loss due to negligence in the performance of 
-12-

surveying or platting must be commenced “within 10 years after

the last act or omission giving rise to the cause of action.” 

N.C. Gen. Stat. § 1-47(6)(a) (2013). This limitation applies 

to the exclusion of N.C. Gen. Stat. § 1-52(16). N.C. Gen. Stat. 

§ 1-47(6)(c) (2013).

Since Davis is a registered land surveyor, DMP is a company 

specifically engaged in surveying and platting, and this appeal 

involves a complaint based upon negligent surveying that caused 

Bruton to suffer property damage and economic loss due to 

defendants’ negligent survey, N.C. Gen. Stat. §§ 1-52(18) and 1-

47(6) both apply. However, both statutes provide differing 

limitation periods for actions against registered land 

surveyors. Pursuant to Fowler v. Valencourt, “[w]here one of 

two statutes might apply to the same situation, the statute 

which deals more directly and specifically with the situation 

controls over the statute of more general applicability.” 334 

N.C. 345, 349, 435 S.E.2d 530, 532 (1993) (citations omitted). 

“Moreover, where there is doubt as to which of two possible 

statutes of limitation applies, the rule is that the longer 

statute is to be selected.” Id. at 350, 435 S.E.2d at 533 

(citation omitted). Therefore, the ten-year limitation period 

applies. 
-13-

In the instant case, Bruton officially discovered 

defendants’ misrepresentation in the survey regarding the 

location of the easement when Bruton received Summers’ letter 

dated 8 February 2007 regarding the encroachments on Duke’s 

easement. Duke filed a complaint against Bruton on 7 July 2011. 

Bruton, as the aggrieved party in Duke’s complaint, was then 

entitled to maintain a cause of action against the third-party 

defendants for negligent misrepresentation of the easement. 

Since Duke’s allegations caused Bruton economic loss,

Bruton filed an answer and third-party complaint against 

defendants on 22 December 2011, alleging, inter alia, that 

Bruton reasonably relied upon the representation in the plat 

prepared by Davis depicting Duke’s right of way as 150-feet 

wide. Since Bruton promptly filed its third-party action 

against defendants after receiving the Duke action, we hold that 

pursuant to N.C. Gen. Stat. § 1-47(6), which is the more 

specific statute, Bruton commenced its action within 10 years of 

the last act giving rise to the cause of action. The trial 

court erred by granting summary judgment for defendants. 

Bruton’s third-party complaint for negligent misrepresentation 

against defendants was timely filed and was not time-barred.
-14-

Defendants contend that Bruton’s claim for negligent 

misrepresentation of the easement accrued in 2006, when Summers 

initially visited the property. However, even if Bruton’s claim 

accrued in 2006, the third-party complaint was still filed 

within 10 years, and thus timely filed pursuant to N.C. Gen.

Stat. § 1-47(6). 

IV. Validity of Third-Party Action

Since we conclude that Bruton’s third-party complaint was 

timely filed and not time-barred by the applicable statute of 

limitations, the final issue is whether Bruton was permitted to 

file its third-party action. Defendants contend that Bruton’s 

claim is an inappropriate direct action disguised as a thirdparty action. 

Pursuant to Rule 14, “any time after commencement of the 

action a defendant, as a third-party plaintiff, may cause a 

summons and complaint to be served upon a person not a party to 

the action who is or may be liable to him for all or part of the 

plaintiff’s claim against him.” N.C. Gen. Stat. § 1A-1, Rule 

14(a) (2013). Since Bruton’s third-party complaint specifically 

alleges “that the third-party defendants are liable to Bruton 

Cable for all or part of [Duke’s] claims against Bruton Cable,”
-15-

Bruton’s third-party complaint alleges indemnity with language 

mirroring in part that of Rule 14(a).

Defendants also contend that Bruton’s negligent 

misrepresentation claim is inappropriate because a third-party 

plaintiff may only assert derivative damages against a thirdparty defendant. However, Rule 18 of the North Carolina Rules 

of Civil Procedure states that “[a] party asserting a claim for 

relief as an original claim, counterclaim, cross claim, or 

third-party claim, may join, either as independent or alternate 

claims, as many claims, legal or equitable, as he has against an 

opposing party.” N.C. Gen. Stat. § 1A-1, Rule 18(a) (2013). 

Since Bruton properly alleges indemnification pursuant to Rule 

14 in the third-party complaint, the joinder of claims is 

permissible pursuant to Rule 18. 

V. Conclusion

Bruton’s third-party complaint alleged negligent 

misrepresentation for justifiably relying to its detriment on 

defendants’ misrepresentation of the accurate width of the Duke 

easement in the recorded plat. As a result, Bruton suffered 

physical damage and economic or monetary loss. Because N.C. 

Gen. Stat. § 1-47(6) applies pursuant to Fowler, Bruton was 

required to file its third-party complaint within 10 years of 
-16-

the last act or omission giving rise to the cause of action. 

Bruton’s third-party complaint was properly filed pursuant to

the North Carolina Rules of Civil Procedure within 10 years of

both Summers’ visit to the property in October 2006 and the 

official letter from Duke in February 2007. In the light most 

favorable to Bruton as the nonmoving party, defendants are not 

entitled to judgment as a matter of law. For these reasons, 

summary judgment should have been denied. We reverse.

Reversed.

Judges HUNTER, Robert C. and HUNTER, JR., Robert N. concur.