An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 plaintiffappellant.

DAVIS, Judge.
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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.
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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 
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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
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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). 
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“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 
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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 
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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.
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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 
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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).