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McCarver v. Blythe12/4/2001
Appeal by defendant, William Henry Blythe, Jr., from judgment entered 6 April 2000 by Judge Michael E. Beale in Union County Superior Court. Heard in the Court of Appeals 20 August 2001.
William Henry Blythe, Jr. ("defendant") appeals from an order of the trial court granting summary judgment in favor of Robert Sharon McCarver ("plaintiff"), executor of the estate of Robert Alexander McCarver.
The relevant factual and procedural background is as follows: In 1960, Lena Blythe ("Lena") inherited a life estate in land located at 2002 Billy Howie Road in Waxhaw, North Carolina. Lena's nephews, defendant and Larry F. Blythe ("Larry"), acquired the remainder interest with each owning a one-half interest in the property. The property consisted of 29.5 acres of land, a two-story house and three outbuildings. On 13 April 1964, defendant and Larry executed a deed conveying a life estate in the property to Lena's husband, Robert Alexander McCarver ("decedent"), retaining the remainder in fee simple. The conveyance was subject to the life estate held by Lena. Lena died in 1992, and Robert continued to occupy the property until his death in 1999.
In his deposition, defendant testified that he visited the property several times over the two months following Lena's death in 1992. During his visits, defendant stated that he observed deterioration in the home and indicated that the porches were "getting in bad shape." Defendant did not visit the property again until 1999 and at that time, defendant testified, the property was in "total disrepair."
Plaintiff commenced an action to recover personal property belonging to decedent's estate on 12 April 1999. Subsequently, defendant filed a counterclaim on 15 March 2000 requesting damages for permissive waste alleging that decedent failed to exercise reasonable precautions to preserve the property. Additionally, defendant alleged that decedent failed to act with due regard toward the rights of the remaindermen. The failure to act, defendant asserted, extensively and permanently destroyed the estate.
Plaintiff filed a motion for summary judgment regarding defendant's counterclaim. In support of the motion, plaintiff offered the affidavit of Warren Carter Plyler ("Plyler") who visited the home on a regular basis for over thirty years. Plyler indicated that he noticed a slow deterioration in the property for many years prior to Lena's death. He indicated that the property was in "poor condition" at Lena's death and that the value of the property did not "appreciably change" between 1992 and 1999. On 22 June 2000 the trial court entered an order granting summary judgment in favor of plaintiff.
Defendant's sole contention on appeal is that summary judgment was improper because the trial court erred in finding that his claim for waste against a life tenant, was barred by the statute of limitations.
It is well established that " ummary judgment is proper `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.'" Thompson v. Three Guys Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583, 585 (1996) (quoting N.C. Gen. Stat. ยง 1A-1, Rule 56 (c) (1999)). The moving party has the burden of "positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law." James v. Clark, 118 N.C. App. 178, 180, 454 S.E.2d 826, 828, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995). All the evidence presented is "viewed in the light most favorable
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