IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-1014

Filed 05 July 2023

Watauga County, No. 20-CVS-396

THOMAS A. FOXX and wife, VIRGINIA A. FOXX, Plaintiffs,

v.

WALTER GLEN DAVIS, JR., Trustee of the WALTER GLEN DAVIS, JR. 

REVOCABLE LIVING TRUST dated the 9th day of June, 2005 and FLORENCE S. 

DAVIS, Defendants.

Appeal by Plaintiffs and cross-appeal by Defendants from orders entered 19 

January 2021 by Judge R. Gregory Horne, 5 January 2022 by Judge Nathaniel J. 

Poovey, and 11 May 2022 and 18 May 2022 by Judge Kimberly Y. Best, and judgment 

entered 8 June 2022 by Judge Kimberly Y. Best in Watauga County Superior Court. 

Heard in the Court of Appeals 25 April 2023.

Miller & Johnson, PLLC, by Nathan A. Miller, for Plaintiffs-Appellants/CrossAppellees.

Moffatt & Moffatt, PLLC, by Tyler R. Moffatt and Joseph T. Petrack, for 

Defendants-Appellees/Cross-Appellants.

COLLINS, Judge.

This appeal arises from a dispute between the parties involving paving a road 

running through an easement. Plaintiffs appeal from orders granting Defendants’

motion for partial summary judgment on their declaratory judgment action; 

Defendants’ motion for summary judgment on their reformation claim (“Reformation 
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Opinion of the Court

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Order”); and Defendants’ motion to amend the Reformation Order.

Plaintiffs also appeal, and Defendants cross-appeal, the trial court’s judgment 

entered after a bench trial. Plaintiffs argue that the trial court erred by concluding 

that Defendants were not liable for a portion of the cost of paving the road under a 

theory of unjust enrichment and by concluding that Defendants were liable only in 

the amount of $9,900 for breach of contract. Defendants argue that the trial court 

erred by concluding that they were liable for breach of contract.

1

We hold as follows: The trial court did not err by granting Defendants’ motion 

for partial summary judgment on their declaratory judgment action. However, the 

trial court erred by granting Defendants’ motion for summary judgment on their

reformation claim and their subsequent motion to amend the Reformation Order.

The trial court did not err in its judgment by concluding that Defendants were 

not liable for a portion of the cost of paving the road under a theory of unjust 

enrichment. Furthermore, the trial court did not err by concluding that Defendants 

were liable for breach of contract. However, the trial court erred by concluding that 

Defendants were liable for the breach in the amount of $9,900.

Accordingly, we affirm in part, reverse in part, and remand.

1 Plaintiffs’ notice of appeal includes the trial court’s order setting aside an entry of default 

against Defendants. However, Plaintiffs make no argument pertaining to this order on appeal and 

any issue pertaining to this order is abandoned. See N.C. R. App. P. 28(a); N.C. R. App. P. 28(b)(6).
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Opinion of the Court

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I. Background

Plaintiffs Thomas Foxx and Virginia Foxx owned multiple tracts of real 

property in Watauga County. Plaintiffs entered into a contract with Defendants 

Walter Glen Davis, Jr., and Florence Davis in February 1997 for the purchase of a 

10-acre tract of Plaintiffs’ property (the “Davis Property”).

2 In May 1997, Plaintiffs 

conveyed to Defendants by general warranty deed the Davis Property and an 

easement across an adjoining tract of Plaintiffs’ property to access the Davis 

Property. Concerning the easement, the deed stated, in relevant part:

There is also conveyed herewith a perpetual, non-exclusive 

right-of-way and easement for purposes of ingress, egress 

and regress 50 feet in width leading from N.C. Highway 

105 to the [Davis Property] . . . .

By acceptance of this deed, Grantees . . . hereby agree to 

share in the maintenance and repair of the road to be 

constructed by Grantors from N.C. Highway 105 to the 

[Davis Property] . . . . Until such time as Grantors convey 

property to third parties together with an easement to use 

said road, Grantors shall pay 20% of the cost of 

maintenance and repair of said road and Grantees shall 

pay 80% of the cost of maintenance and repair of said road. 

Grantors hereby covenant and agree to obligate each 

additional property owner who is conveyed an easement to 

use said road to share equally in Grantees’ 80% obligation 

for maintenance and repair.

A 12-foot-wide gravel road leading from NC Highway 105 to the Davis Property was 

constructed by Plaintiffs in 1997 and is known as Rime Frost.

2 Walter Glen Davis, Jr., conveyed by quitclaim deed his one-half undivided interest in the 

Davis Property to himself as trustee of the Walter Glen Davis, Jr., Revocable Living Trust in August 

2005, and he is therefore a party to this action in his capacity as trustee.
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Opinion of the Court

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In April 2016, Plaintiffs conveyed a 55.225-acre tract of their property to the 

Blue Ridge Conservancy by warranty deed (“Conservancy Deed”). Thereafter, 

Plaintiffs and Defendants entered into a contract which essentially relieved Blue 

Ridge Conservancy of any obligation to contribute to maintenance or repair of Rime 

Frost. The contract between Plaintiffs and Defendants stated, in relevant part:

WHEREAS, the deed from FOXX to DAVIS . . . contained 

provisions whereby FOXX agreed to pay a portion of the 

cost of maintenance and repair of a road leading from U.S. 

Highway 105 to the property conveyed to DAVIS and to 

obligate additional property owners who may be conveyed 

an easement to use said road to share in DAVIS’ obligation 

for maintenance and repair of the road. . . .

. . . .

WHEREAS, FOXX, DAVIS and the DAVIS TRUST, each 

desire to (i) terminate the provisions contained in the deeds 

requiring road maintenance contribution . . . as those 

provisions may apply because of the conveyance of the . . . 

55.225 acres, and (ii) to release Blue Ridge Conservancy, 

its successors and assigns, as owners of the 55.225 acre 

tract from the aforesaid responsibilities as contained in the 

deed . . . . Except for the specific release of Blue Ridge 

Conservancy, its successors and assigns, as owners of the 

55.225 acre tract, from the responsibilities contained in the 

above referenced deeds, the obligations of FOXX, DAVIS 

AND the DAVIS TRUST in all other respects remain 

unchanged.

Plaintiffs obtained a proposal from Moretz Paving on 4 September 2019 to pave 

Rime Frost from the point where it crosses the Watauga River to the point where it 

splits near the parties’ driveways. Moretz Paving’s total estimate was $64,900 and 

was broken down as follows: the preparation of the stone base for paving totaled 
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Opinion of the Court

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$19,800, and the application of the asphalt totaled $45,120. Mr. Foxx met with Mr. 

Davis to discuss the proposal, and Mr. Davis stated that he would discuss the 

proposal with Mrs. Davis. Plaintiffs did not receive any further response from 

Defendants regarding the proposal.

Plaintiffs sent Defendants a letter on 8 November 2019, which stated:

After talking with Glen and sending you both a copy of the 

paving proposal over 6 weeks ago, we have not heard from 

you. I also left [Mrs. Davis] a recorded message on her 

phone on Monday, November 4. However, we could not 

wait longer to hear from you if we were to get on the 

spring/summer schedule for 2020 and, therefore, we have 

submitted the signed contract for the work to be done.

Based upon your General Warranty Deed of May 7, 1997, 

but adjusted in your favor since we now live here on the 

property, we would share equally in the cost of this section 

of road work.

Defendants sent an email to Plaintiffs on 13 November 2019, which stated, “[we] have 

both reviewed the proposal and discussed it, and we do not wish to participate in the 

paving of the farm road.” Plaintiffs had Rime Frost paved by Moretz Paving in July 

2020 for a total cost of $64,900.

Plaintiffs filed suit against Defendants in August 2020, asserting claims for 

breach of contract, termination of easement, and unjust enrichment/quantum meruit. 

Defendants moved to dismiss Plaintiffs’ termination of easement claim, which was 

granted by written order entered 19 January 2021. On 8 February 2021, Defendants 

filed an answer and counterclaims for declaratory judgment, accounting, and 
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recoupment. Defendants’ declaratory judgment action asked the trial court to decide

the following:

a. Does the Easement prohibit Plaintiffs from placing any 

impediments within the 50-foot easement area shown on 

the plat recorded in Plat Book 13, Page 179, Watauga 

County, North Carolina Public Registry?

b. What activities are included within the scope of the 

terms “maintenance” and “repair” as those terms are used 

in the Easement?

c. Does paving Rime Frost from the point where Rime Frost 

crossed the Watauga River to the point where Rime Frost 

splits near the driveways between the Plaintiffs’ and 

Defendants’ respective properties constitute an 

“improvement,” rather than “maintenance” or “repair” of 

the road, and, thus, fall outside the scope of the Easement?

d. What portion of purported funds that were paid for the 

work Plaintiffs allege in their Complaint was for 

“improvements” to Rime Frost?

e. What portion of purported funds that were paid for the 

work Plaintiffs allege in their Complaint was for 

“maintenance” and “repair” of Rime Frost as those terms 

are used in the Easement?

f. Was the obligation to pay for maintenance and repairs to 

Rime Frost contained in the Easement (i.e., ‘Grantors shall 

pay 20% of the cost of maintenance and repair of said road 

and Grantees shall pay 80% of the cost of maintenance and 

repair of said road’) modified by the Conservancy Deed?

g. Did the Conservancy Deed violate Plaintiffs’ covenant to 

obligate each additional property owner who is conveyed 

an easement to use Rime Frost to share equally in 

Defendants’ 80% obligation for maintenance and repair?

h. Was the obligation to pay for maintenance and repairs 

to Rime Frost contained in the Easement (i.e., ‘Grantors 

shall pay 20% of the cost of maintenance and repair of said 

road and Grantees shall pay 80% of the cost of maintenance 

and repair of said road’) modified by the November 8, 2019 
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Opinion of the Court

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letter from Plaintiffs to Defendants?

Defendants filed amended counterclaims, asserting an additional claim for 

reformation of the easement based on mutual mistake. Defendants alleged, in part, 

that “[t]he shared mutual understanding of Plaintiffs and Defendants at the time of 

entering into the [purchase contract] was that Plaintiffs would sell additional tracts 

of land from the Plaintiffs’ Property and with each sale, Defendants’ obligation to pay 

for road maintenance would be reduced proportionately[.]”

Defendants moved for partial summary judgment on their declaratory 

judgment action. The trial court granted the motion by order entered 5 January 2022, 

declaring that:

a. Resurfacing of the gravel roadway within the Easement 

with asphalt, concrete, or other hot-mix or non-gravel 

compacted material constitutes an improvement and 

therefore does not fall within the scope of the terms 

“maintenance” and “repair,” as used in the Easement;

b. In the present action, Plaintiffs’ asphalt paving over the 

existing gravel roadway in the Easement from the point 

where the Easement crosses the Watauga River to the 

point of intersection of the Easement and Plaintiffs’

driveway constituted an improvement and therefore fell 

outside of the scope of the terms “maintenance” and 

“repair,” as used in the Easement; and

c. The terms “maintenance” and “repair,” as used in the 

Easement, do not include the maintenance or repair (as 

herein interpreted) of the asphalt paving over the existing 

gravel roadway in the Easement from the point where the 

Easement crosses the Watauga River to the point of 

intersection of the Easement and Plaintiffs’ driveway.

The parties filed competing motions for summary judgment on Defendants’ 
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Opinion of the Court

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reformation claim. The trial court denied Plaintiffs’ motion and granted Defendants’

motion for summary judgment.

3 In its Reformation Order, the trial court reformed 

the easement to read, in pertinent part: “Until such time as Grantors convey[]

property to third parties together with an easement to use said road, Grantors shall 

pay 50% of the cost of maintenance and repair of said road and Grantees shall pay 

50% of the cost of maintenance and repair of said road.”

Defendants voluntarily dismissed the portion of their declaratory judgment

action, which petitioned the trial court to decide whether the easement was modified 

by the Conservancy Deed, and whether the Conservancy Deed violated Plaintiffs’

covenant to obligate each additional property owner to share equally in Defendants’

80% obligation for maintenance and repair. Additionally, Defendants moved to 

amend the Reformation Order to further state: “Grantors hereby covenant and agree 

to obligate each additional property owner who is conveyed an easement to use said 

road to share equally in Grantees’ 50% obligation for maintenance and repair.” The 

trial court granted Defendants’ motion by written order entered 18 May 2022. That 

same day, Defendants voluntarily dismissed the remainder of their declaratory 

judgment action, as well as their claims for accounting and recoupment.

A bench trial was held on 18 May 2022 on Plaintiffs’ remaining claims for 

unjust enrichment and breach of contract. The trial court entered a written judgment 

3 The parties also filed competing motions for partial summary judgment on Defendants’ 

declaratory judgment action, but the trial court did not rule on the motions.
FOXX V. DAVIS

Opinion of the Court

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on 8 June 2022, concluding, in relevant part, that Defendants were not liable to 

Plaintiffs under the theory of unjust enrichment, but that Defendants were liable to 

Plaintiffs in the amount of $9,900 for breach of contract.

Plaintiffs filed a timely notice of appeal from the trial court’s orders and 

judgment. Defendants filed a timely notice of appeal from the trial court’s judgment.

II. Discussion

A. Summary Judgment

Plaintiffs argue that the trial court erred by granting Defendants partial 

summary judgment on their declaratory judgment action and summary judgment on 

their reformation claim.

1. Standard of Review

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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2022). “In ruling 

on a motion for summary judgment, the trial court must view the evidence in the light 

most favorable to the non-moving party.” Keller v. Deerfield Episcopal Ret. Cmty., 

Inc., 271 N.C. App. 618, 622, 845 S.E.2d 156, 160 (2020) (quotation marks and citation 

omitted).

“The party moving for summary judgment bears the burden of establishing 

that there is no triable issue of material fact.” Badin Shores Resort Owners Ass’n v. 
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Opinion of the Court

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Handy Sanitary Dist., 257 N.C. App. 542, 549, 811 S.E.2d 198, 204 (2018) (citation 

omitted). “This burden can be met by proving: (1) that an essential element of the 

non-moving party’s claim is nonexistent; (2) that discovery indicates the non-moving 

party cannot produce evidence to support an essential element of his claim; or (3) that 

an affirmative defense would bar the claim.” CIM Ins. Corp. v. Cascade Auto Glass, 

Inc., 190 N.C. App. 808, 811, 660 S.E.2d 907, 909 (2008) (citation omitted).

When the movant properly supports its motion for summary judgment 

pursuant to this rule, “an adverse party may not rest upon the mere allegations or 

denials of his pleading, but his response, by affidavits or as otherwise provided in this 

rule, must set forth specific facts showing that there is a genuine issue for trial.” N.C. 

Gen. Stat. § 1A-1, Rule 56(e) (2022). Furthermore, affidavits, both supporting and 

opposing, must be made “on personal knowledge, . . . set forth such facts as would be 

admissible in evidence, and . . . show affirmatively that the affiant is competent to 

testify to the matters stated therein.” Merritt, Flebotte, Wilson, Webb & Caruso, 

PLLC v. Hemmings, 196 N.C. App. 600, 604-05, 676 S.E.2d 79, 83 (2009) (quotation 

marks and citation omitted).

We review a trial court’s order granting summary judgment de novo. Forbis v. 

Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). “Under de novo review, this 

Court considers the matter anew and freely substitutes its own judgment for that of 

the lower [court].” Archie v. Durham Pub. Sch. Bd. of Educ., 283 N.C. App. 472, 474, 

874 S.E.2d 616, 619 (2022) (quotation marks and citation omitted).
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Opinion of the Court

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2. Declaratory Judgment

Plaintiffs contend that the trial court erred by declaring that paving Rime 

Frost “constituted an improvement and therefore fell outside of the scope of the terms

‘maintenance’ and ‘repair,’ as used in the Easement” and that “[t]he terms 

‘maintenance’ and ‘repair,’ as used in the Easement, do not include the maintenance 

or repair . . . of the asphalt paving over the existing gravel roadway[.]”

An easement created by a deed is a contract and is therefore interpreted in 

accordance with general principles of contract law. Weyerhaeuser Co. v. Carolina 

Power & Light Co., 257 N.C. 717, 719, 127 S.E.2d 539, 541 (1962). “The controlling 

purpose of the court in construing a contract is to ascertain the intention of the parties 

as of the time the contract was made[.]” Id. “If the plain language of a contract is 

clear, the intention of the parties is inferred from the words of the contract.” Walton 

v. City of Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411 (1996) (citation omitted). 

“In construing contracts[,] ordinary words are given their ordinary meaning unless it 

is apparent that the words were used in a special sense. The terms of an 

unambiguous contract are to be taken and understood in their plain, ordinary and 

popular sense.” Badin Shores Resort Owners Ass’n, 257 N.C. App. at 557, 811 S.E.2d 

at 208 (quotation marks and citation omitted). “When the language of a contract is 

plain and unambiguous then construction of the agreement is a matter of law for the 

court.” RME Mgmt., LLC v. Chapel H.O.M. Assocs., LLC, 251 N.C. App. 562, 567, 

795 S.E.2d 641, 645 (2017) (quotation marks and citation omitted).
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Here, the deed creating the easement states, in pertinent part:

By acceptance of this deed, Grantees . . . hereby agree to 

share in the maintenance and repair of the road to be 

constructed by Grantors from N.C. Highway 105 to the 

[Davis Property] . . . . Until such time as Grantors convey 

property to third parties together with an easement to use 

said road, Grantors shall pay 20% of the cost of 

maintenance and repair of said road and Grantees shall 

pay 80% of the cost of maintenance and repair of said road. 

Grantors hereby covenant and agree to obligate each 

additional property owner who is conveyed an easement to 

use said road to share equally in Grantees’ 80% obligation 

for maintenance and repair.

The deed does not define the terms “maintenance” or “repair,” and we therefore 

interpret these terms in their plain, ordinary, and popular sense in construing the 

contract. Badin Shores Resort Owners Ass’n, 257 N.C. App. at 557, 811 S.E.2d at 208. 

“Maintenance” is defined as “to keep in an existing state (as of repair)[.]” The 

Merriam-Webster Dictionary 431 (2016). “Repair” is defined as “to restore to good 

condition[.]” Id. at 613. Paving Rime Frost did not constitute maintenance or repair 

because it did not keep the gravel road in an existing state or restore the gravel road 

to good condition. Rather, paving Rime Frost constituted an improvement because it 

enhanced the quality of the road. See id. at 361 (defining “improve” as “to enhance 

or increase in value or quality”). Thus, under the plain language of the easement, 

paving Rime Frost was not maintenance or repair, but rather was an improvement.

Furthermore, the road Plaintiffs constructed from N.C. Highway 105 to the 

Davis Property in 1997 was “a gravel road . . . 12 feet wide with probably six inches 
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Opinion of the Court

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of gravel on it.” The easement thus indicates that the parties’ intent was for 

Defendants to share in the maintenance and repair of Rime Frost as a gravel road.

Accordingly, the trial court did not err by granting Defendants partial 

summary judgment on their declaratory judgment claim.

3. Reformation

Plaintiffs contend that the trial court erred by reforming the deed to reduce 

Defendants’ road maintenance and repair obligation from 80% to 50% based on 

mutual mistake. Plaintiffs specifically argue that Defendants’ reformation claim is 

barred by the statute of limitations.

“Reformation is a well-established equitable remedy used to reframe written 

instruments where, through mutual mistake or the unilateral mistake of one party 

induced by the fraud of the other, the written instrument fails to embody the parties’

actual, original agreement.” Branch Banking & Trust Co. v. Chi. Title Ins. Co., 214 

N.C. App. 459, 463, 714 S.E.2d 514, 517-18 (2011) (quotation marks and citation 

omitted). “A mutual mistake is one common to both parties to a contract . . . wherein 

each labors under the same misconception respecting a material fact, the terms of the 

agreement, or the provisions of the written instrument designed to embody such 

agreement.” Id. (quotation marks and citation omitted). When a party seeks to 

reform a contract based on mutual mistake, the burden of proof lies with the moving 

party to prove the mutual mistake by clear, cogent, and convincing evidence. Smith 

v. First Choice Servs., 158 N.C. App. 244, 250, 580 S.E.2d 743, 748 (2003).
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Opinion of the Court

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Under N.C. Gen. Stat. § 1-52, an action for relief on the ground of mistake must 

be brought within three years of “the discovery by the aggrieved party of the facts 

constituting the . . . mistake.” N.C. Gen. Stat. § 1-52(9) (2022). “A plaintiff ‘discovers’

the mistake–and therefore triggers the running of the three-year limitations period–

when he actually learns of its existence or should have discovered the mistake in the 

exercise of due diligence.” Wells Fargo Bank, N.A. v. Coleman, 239 N.C. App. 239, 

244, 768 S.E.2d 604, 608 (2015) (citation omitted).

Here, the purchase contract, dated 5 February 1997, states, in relevant part:

4

Davis will agree to share in a percentage of the road 

maintenance until further development occurs, at which 

time a POA will be formed. This percentage will be 80% 

Davis, and 20% Foxx. Each new homeowner will share 

equally in the 80% share. Foxx will not share in the 

maintenance after five (5) homeowners are present or no 

longer uses the road for farming or residential use.

Likewise, the deed creating the easement, dated 7 May 1997, states:5

By acceptance of this deed, Grantees . . . agree to share in 

the maintenance and repair of the road to be constructed 

by Grantors from N.C. Highway 105 to the property 

conveyed herein as shown on the above-referenced plat. 

Until such time as Grantors convey property to third 

parties together with an easement to use said road, 

Grantors shall pay 20% of the cost of maintenance and 

repair of said road and Grantees shall pay 80% of the cost 

of maintenance and repair of said road.

Furthermore, on 17 August 2005, Walter Glen Davis, Jr., conveyed by 

4 The Davises are Defendants in this case and the Foxxes are Plaintiffs.

5 Grantees are Defendants in this case and Grantors are Plaintiffs.
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quitclaim deed his one-half undivided interest in the Davis Property to himself as 

trustee of the Walter Glen Davis, Jr., Revocable Living Trust. The quitclaim deed 

included the verbiage from the 7 May 1997 deed regarding maintenance and repair 

of the road. Defendants also entered into an agreement with Plaintiffs on 15 April 

2016 to “terminate the provisions contained in the deeds requiring road maintenance 

contribution” as to Blue Ridge Conservancy, and to “release Blue Ridge 

Conservancy, . . . as owners of the 55.225 acre tract from the aforesaid responsibilities 

as contained in the deed[.]”

Defendants should have discovered any mutual mistake by 15 April 2016 at 

the latest, after entering into the agreement with Plaintiffs to exempt Blue Ridge 

Conservancy from any road maintenance obligations. Because Defendants did not 

file their reformation claim until 3 August 2021, more than five years later, it is 

barred by the statute of limitations, and the trial court erred by granting Defendants’

motion for summary judgment. Furthermore, the trial court erred by granting 

Defendants’ motion to amend the Reformation Order to add that Plaintiffs “agree to 

obligate each additional property owner who is conveyed an easement to use said road 

to share equally in Grantees’ 50% obligation for maintenance and repair” because 

Defendants’ reformation claim is barred by the statute of limitations.

B. Judgment

Plaintiffs and Defendants argue that the trial court made erroneous 

conclusions of law in its judgment entered after a bench trial on Plaintiffs’ remaining 
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claims for unjust enrichment and breach of contract.

1. Standard of Review

“The standard of review on appeal from a judgment entered after a non-jury 

trial is whether there is competent evidence to support the trial court’s findings of 

fact and whether those findings support the conclusions of law and ensuing 

judgment.” Ward v. Ward, 252 N.C. App. 253, 256, 797 S.E.2d 525, 528 (2017) 

(citation omitted). “Findings of fact by the trial court in a non-jury trial have the 

force and effect of a jury verdict and are conclusive on appeal if there is evidence to 

support those findings.” Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 

S.E.2d 841, 845 (1992) (citation omitted). The trial court’s conclusions of law are 

reviewable de novo on appeal. Donnell-Smith v. McLean, 264 N.C. App. 164, 168, 825 

S.E.2d 672, 675 (2019).

2. Unjust Enrichment

Plaintiffs argue that the trial court erred by concluding that Defendants were 

not liable for a portion of the cost of paving the road under a theory of unjust 

enrichment.

A prima facie claim for unjust enrichment has five elements: (1) “one party 

must confer a benefit upon the other party”; (2) “the benefit must not have been 

conferred officiously, that is it must not be conferred by an interference in the affairs 

of the other party in a manner that is not justified in the circumstances”; (3) “the 

benefit must not be gratuitous”; (4) “the benefit must be measurable”; and (5) “the 
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Opinion of the Court

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defendant must have consciously accepted the benefit.” JPMorgan Chase Bank, Nat’l 

Ass’n v. Browning, 230 N.C. App. 537, 541-42, 750 S.E.2d 555, 559 (2013) (quotation 

marks, emphasis, and citations omitted).

“Not every enrichment of one by the voluntary act of another is unjust.” Wright 

v. Wright, 305 N.C. 345, 350, 289 S.E.2d 347, 351 (1982). “Where a person has 

officiously conferred a benefit upon another, the other is enriched but is not 

considered to be unjustly enriched. The recipient of a benefit voluntarily bestowed 

without solicitation or inducement is not liable for [its] value.” Rhyne v. Sheppard, 

224 N.C. 734, 737, 32 S.E.2d 316, 318 (1944).

Here, the trial court made the following pertinent findings of fact:

21. In 2019, the Plaintiffs asked Moretz Paving, Inc. to give 

them a proposal for paving Rime Frost from where the 

pavement ends just after the bridge crossing the Watauga 

River to where the Plaintiffs’ driveway intersects with 

Rime Frost.

22. Moretz Paving, Inc. dispatched Robert Stroup, an 

estimator with Moretz Paving, Inc. to estimate the cost and 

prepare the proposal for the paving of Rime Frost for the 

Plaintiffs.

. . . .

24. Mr. Stroup prepared an estimate on September 4, 2019 

for the total amount of $64,900.00. . . .

. . . . 

34. Plaintiffs notified Defendants of their desire to pave 

Rime Frost and of the costs and asked Defendants to 

participate by sharing equally in the cost of the paving of 

Rime Frost.

35. On November 13, 2019, Defendants informed the 
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Plaintiffs via email that they were not going to participate 

in the paving. . . .

36. In July of 2020, Plaintiffs had Moretz Paving, Inc., 

repair[] and prepare[] the gravel base and pave[] Rime 

Frost from where the pavement ended after the Watauga 

River bridge to Plaintiffs’ driveway.

. . . .

39. There was never an agreement between the parties to 

share in the asphalt costs.

. . . .

42. Defendants did not voluntarily accept the paving of 

Rime Frost, and in fact refuse[d] the paving before the 

work commenced.

These findings of fact are supported by competent evidence, including, inter alia, 

Defendants’ lack of response after Mr. Foxx met with Mr. Davis to discuss the 

proposal, and Defendants’ email to Plaintiffs specifically declining to participate in 

the paving of Rime Frost.

Plaintiffs contend that Defendants voluntarily accepted the paving of Rime 

Frost because Defendants “never stated they weren’t going to voluntarily accept the 

paving and find another way to reach their home[,]” and Defendants “continue to 

utilize the pavement more than once a day.” However, Defendants affirmatively 

rejected Plaintiffs’ proposal to pave Rime Frost and Defendants’ continued use of 

Rime Frost to access their property does not constitute a voluntary acceptance of the 

paving. See Rhyne, 224 N.C. at 737, 32 S.E.2d at 318. The findings of fact support 

the trial court’s conclusion of law that Plaintiffs failed to prove that Defendants “are 
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Opinion of the Court

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liable to Plaintiffs for the asphalt under the legal theory of quantum meruit[

6]/unjust 

enrichment because Defendants did not voluntarily accept the paving of Rime Frost, 

and in fact refused the paving before the work commenced.”

Accordingly, the trial court did not err by concluding that Plaintiffs could not 

recover under a theory of unjust enrichment.

3. Breach of Contract

Defendants argue that the trial court erred by concluding that they were liable 

for breach of contract and awarding Plaintiffs $9,900, one-half of the cost of preparing 

Rime Frost for paving. Plaintiffs assert that the trial court correctly concluded that 

Defendants were liable for breach of contract, but erred by only awarding them 

one-half of the cost of preparing Rime Frost for paving based upon the reformed deed.

The trial court made the following pertinent findings of fact:

26. The preparation of the stone base for the paving of Rime 

Frost was $19,800.00.

27. The application of the asphalt, including all materials 

and labor cost $45,120.00.

28. Mr. Stroup determined that 660 tons of gravel would be 

needed to repair and prepare Rime Frost for paving as the 

road had 2 to 3 inches of gravel in most places and 6 inches 

in some places.

29. Mr. Stroup testified that the industry standard for a 

gravel road is 6 inches of gravel and if you are going to do 

the work right then you would need to compact it.

6

“Quantum meruit is a measure of recovery for the reasonable value of services rendered in 

order to prevent unjust enrichment.” Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414 (1998)

(citations omitted).
FOXX V. DAVIS

Opinion of the Court

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. . . .

31. Heather Isaacs with Moretz Paving, Inc. as a Senior 

Administrative Assistant noted in her testimony that you 

might not wet a gravel road as a repair.

. . . .

33. The [c]ourt finds that the testimony of Robert Stroup 

and Heather Isaacs aren’t inconsistent and that to repair 

and maintain a gravel road it requires adding the base 

gravel to depth of 6 inches, to compact it and to wet it.

Robert Stroup with Moretz Paving testified, in relevant part, as follows:

Q. How much gravel base was there on the road?

A. Gravel base applied was 600, I mean, yeah, 660 tons.

Q. I understand that. How much on the road already 

existed, if you know?

A. Well I can’t answer that. You know, two to three inches 

in places, and then there might be five, six in another.

. . . .

Q. What exactly goes into the prepped to pave? What 

exactly consists of that work?

A. Stone is added and bladed with a mower grader, and 

then to prep it, to pave, you add water to it and take a 

laboratory roller and compact it and it’s ready to pave. The 

prep to pave is the compaction process of getting it ready to 

pave it.

. . . .

Q. Have you ever outside of Moretz Paving, have you ever 

worked on repairing a gravel road without paving it?

A. Yes, sir, but not to the extent of compacting it like you 

are. It’s a whole different process, prepping to paving, just 

getting it down on your driveway where you can drive over 

it.

Q. If someone had a gravel road, driveway, and simply 

wanted it to be repaired on an annual basis, do you know 
FOXX V. DAVIS

Opinion of the Court

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what type of work would go into that?

A. Yes, sir. As a general rule you would, in most cases in 

this country people just take their farm tractor and put a 

blade on it and drag it and that’s the end of it. To do it 

properly it needs to be bladed and get the proper elevations 

on it to where the water would run to where it’s supposed 

to go and then compact it. But very seldom does that 

happen. It’s an expense that as a general rule folks don’t 

want to go to.

Q. So there’s a difference between preparing a road to pave 

it compared to repairing a gravel road?

A. Yes, sir, very definitely.

Heather Isaacs with Moretz Paving testified, in relevant part, as follows:

Q. Mr. Stroup testified earlier, I asked him about whether 

there was any difference in preparing a road to pave it 

versus maintaining and repairing an existing gravel road. 

And I’ll represent to you, I believe as you were in the 

courtroom, that he said that there was a difference. Would 

you agree that there’s a difference between those two 

things?

A. Yes, absolutely.

Q. What do you believe the difference would be between 

those two things?

A. Besides cost --

. . . .

Q. When you said besides cost, what would be the 

difference in cost?

A. Well if you’re just repairing a gravel road, you’re not 

going to have as much man hours. You’re not going to 

have -- if you’re doing a repair, sometimes you can get away 

with a little bit less material as well. But to repair 

something correctly as far as just repairing just a gravel 

road, if I’m just going to repair a gravel road, I would go in 

with a motor grader, I would lay the stone down, and then 

I would roll it. But you know, whenever you’re prepping it 
FOXX V. DAVIS

Opinion of the Court

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to pave it you have to actually wet that. And you’re 

probably not going to take the time to wet just a repair 

gravel [sic]. . . .

Stroup’s testimony indicates that maintaining a gravel road involves adding stone 

and “[t]o do it properly it needs to be bladed . . . and then compact[ed].” Isaacs’

testimony indicates that maintaining a gravel road involves laying stone, using a 

motor grader, and rolling the gravel. Although Isaacs testified that “you’re probably 

not going to take the time to wet just a repair gravel[,]” the trial court determined the 

credibility of the witnesses and the weight to be given their testimony in making its 

findings of fact. See Kirkhart v. Saieed, 98 N.C. App. 49, 54, 389 S.E.2d 837, 840 

(1990) (“The trial court is in the best position to weigh the evidence, determine the 

credibility of witnesses and the weight to be given their testimony, and draws the 

reasonable inferences therefrom.” (quotation marks and citation omitted)). 

Therefore, the trial court’s findings of fact are supported by competent evidence and 

are conclusive on appeal. Shear, 107 N.C. App. at 160, 418 S.E.2d at 845.

The trial court’s findings of fact support the trial court’s following conclusions 

of law:

11. The [c]ourt concludes that [Defendants], breached its 

obligation under the Easement to pay their share of 

maintenance and repair of Rime Frost.

12. That Rime Frost is a private road for which the 

Plaintiffs and Defendants are to share in the repair and 

maintenance of Rime Frost in the same manner as it was 

initially constructed . . . .

13. That the preparation work and materials to rebuild the 
FOXX V. DAVIS

Opinion of the Court

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gravel base as performed by Moretz Paving, Inc. 

constitutes repair and maintenance as set forth in the 

Easement.

14. The total cost of the repair and maintenance of the 

gravel base of Rime Frost, as performed by Moretz Paving, 

Inc., was $19,800.00.

However, because the trial court erred by reforming the deed to reduce 

Defendants’ maintenance and repair obligation from 80% to 50%, the trial court 

erroneously concluded that “Defendants are responsible for 50% of the cost of the 

repair and maintenance of the gravel base of Rime Frost, as performed by Moretz 

Paving, Inc. which totals $9,900.00.” Thus, although the trial court did not err by 

awarding Plaintiffs a portion of the costs associated with preparing Rime Frost for 

paving, the trial court erroneously calculated the costs based upon the reformed deed. 

Accordingly, we reverse and remand to the trial court for recalculation of damages 

based upon the original deed.

III. Conclusion

We affirm the trial court’s order granting Defendants’ motion for partial 

summary judgment on their declaratory judgment action because paving Rime Frost 

did not constitute maintenance or repair. However, we reverse the trial court’s orders

granting Defendants’ motion for summary judgment on their reformation claim and 

their subsequent motion to amend the Reformation Order because Defendants’

reformation claim is barred by the statute of limitations. Furthermore, we affirm the 

part of the trial court’s judgment concluding that Defendants were not liable for a 
FOXX V. DAVIS

Opinion of the Court

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portion of the cost of paving the road under a theory of unjust enrichment because 

Defendants did not voluntarily accept the benefit. Finally, we reverse the part of the 

trial court’s judgment concluding that Defendants were liable for breach of contract

in the amount of $9,900 and remand to the trial court to recalculate damages based 

upon the original deed.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

Judges TYSON and RIGGS concur.