Court Rulings

<bold>Appeal and Error — appellate rules violations</bold> <bold>— failure to limit scope of review — failure to give</bold> <bold>adequate notice</bold> <block_quote> Plaintiff's appeal is dismissed for failure to comply with N.C. R. App. P. 10(c)(1), because: (1) plaintiff's single assignment of error without record references does not set forth a legal issue for determination and does no more than duplicate the notice of appeal which does not serve its function of limiting the scope of<page_number>Page 502</page_number> review; (2) appellee did not receive adequate notice of the basis upon which the appeal might be resolved; and (3) the Court of Appeals cannot invoke N.C.R.App.P. 2 as a means of addressing issues not raised by an appellant.</block_quote> Judge WYNN concurring in the result.

<bold>1. Trespass — failure to show affirmative defense</bold> <bold>— negligence — easement by necessity — easement</bold> <bold>implied from prior use</bold> <block_quote> The trial court did not err by finding that plaintiff established a prima facie case of defendant's trespass for damage caused by the break in a stub-out on plaintiff's property from a water pipe serving defendant's property and that defendant failed to establish<page_number>Page 645</page_number> that it had any affirmative defense to the trespass, because: (1) there was sufficient evidence to support the trial court's finding that defendant owned the water that ran through the water pipe and subsequently flooded plaintiff's property thus causing damage to plaintiff's property; (2) although defendant argues on appeal that plaintiff negligently caused the release of water onto plaintiff's property and that defendant did not intentionally cause the water to enter onto plaintiff's property, at no point in the pleadings did defendant plead plaintiff's negligence as an affirmative defense nor did the trial court make any finding of fact regarding plaintiff's alleged negligence; (3) defendant failed to establish the affirmative defense of easement by necessity since the trial court's findings of fact properly supported the court's conclusions of law that it was not necessary that the pipe or stub-out be located on plaintiff's property in order for defendant to use and enjoy its property; and (4) defendant failed to establish the affirmative defense of easement implied from prior use when defendant did not meet the required test of permanency.</block_quote> <bold>2. Damages and Remedies — reasonableness —</bold> <bold>trespass</bold> <block_quote> The trial court did not err in a trespass case by awarding plaintiff $122, 918.80 for damage caused by the break in a water pipe, because plaintiffs presented sufficient evidence to allow the trial court to calculate the damages to a reasonable deg

<bold>1. Pleadings — Rule 11 sanctions — factual</bold> <bold>investigation</bold> <block_quote> There was sufficient evidence to support the trial court's finding that plaintiff violated the factual certification requirement of N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11, justifying the imposition of sanctions in a case which rose from the division of family assets. An attorney representing the estate made an independent investigation and concluded that there was no factual basis for claims of fraud or undue influence; a similar inquiry by plaintiff would have found ample evidence that his mother was competent and fully involved in managing both her business and personal affairs until her death.</block_quote> <bold>2. Pleadings — Rule 11 sanctions — entire record</bold> <bold>considered</bold> <block_quote> The entire record was before the court at a Rule 11 sanctions hearing, not just plaintiff's testimony that he made a reasonable inquiry, because defendant's motions were explicitly based on the record of the case.</block_quote> <bold>3. Pleadings — frivolous appeals — authority to</bold> <bold>sanction under Rule 11</bold> <block_quote> The authority to sanction frivolous appeals by shifting expenses incurred on appeal is exclusively granted to the appellate courts under Appellate Rule 34. The trial court here abused its discretion by awarding under Rule 11 attorney fees and costs incurred by defendants in defending plaintiff's appeal to the Court of Appeals and his petition to the Supreme Court.</block_quote><page_number>Page 310</page_number> <bold>4. Pleadings — Rule 11 sanctions — discovery</bold> <bold>resulting from complaint</bold> <block_quote> Although plaintiff argues that the proper basis for discovery sanctions is N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 26(g) rather than N.C.G.S. § <cross_reference>1A-1</cross_reference>, Rule 11, the document in issue here is plaintiff's complaint and Rule 11 appl