Real Property – Tenants in Common – Landlord/Tenant – Exclusion & Rent – Tort/Negligence – Trespass – Civil Practice – Necessary Party

Henderson v. Garcia Motorrad, LLC (Lawyers Weekly No. 012-132-16, 18 pp.) (Linda McGee, C.J.) Appealed from Wake County Superior Court (Shannon Joseph, J.) N.C. App. Unpub.

Holding: Where one tenant in common leased land to commercial lessees, and where there is a genuine issue of material fact as to whether the lessees excluded the other tenant in common from the land, the excluded tenant in common may be entitled to a portion of the fair rental value for the lease term.

We affirm summary judgment for the defendant-lessees as to plaintiff’s claims of trespass, quantum meruit, quantum valebant (referring to a defendant who was unjustly enriched by the receipt of goods from a plaintiff without compensating him for the value of those goods), and implied contract. We reverse the trial court’s dismissal (1) for failure to join a necessary party and (2) of plaintiff’s claim for a portion of the property’s fair rental value. Remanded.

The trial court dismissed the plaintiff-tenant in common’s complaint pursuant to N.C. R. Civ. P. 12(b)(7), but the order does not say who the necessary party is or why the absent party could not have been brought into the action. Further, the record does not indicate that the trial court granted a continuance for the necessary party to be added to the litigation. If the trial court found the lessor/tenant in common to be a necessary party, and if the trial court was correct, the court did not indicate why she could not have been joined as a party. On remand, the trial court should consider who may be a necessary party and whether such party, if necessary, may or may not be joined to this action.

Since the lessees leased the real property from a tenant in common, they did not unlawfully enter the property, as their leases were valid and effectual to the extent of the lessor/tenant in common’s interest. Therefore, plaintiff cannot establish an element of his trespass claim: unauthorized entry on the land.

Plaintiff did not render any service to defendants, nor did defendants receive any goods from plaintiff without compensation. Therefore, the trial court properly dismissed plaintiff’s causes of action based on quantum meruit and quantum valebant.

Because defendants were on the property without plaintiff’s permission or consent, defendants did not have any agreement-in-fact with plaintiff to occupy the real property that would have created an obligation between them. Accordingly, plaintiff’s implied contract claim could not withstand summary judgment.

Affirmed in part, reversed in part, and remanded.