Appeal by defendant from judgment entered 6 March 2000 and
order entered 30 May 2000 by Judge J. Marlene Hyatt in Jackson
County Superior Court. Both appeals heard in the Court of Appeals
15 August 2001.
Roberts & Stevens, P.A., by William Clarke, for plaintiff-
appellee.
Creighton W. Sossomon, and Ogletree, Deakins, Nash, Smoak &
Stewart, P.C., by Elizabeth B. Partlow and Keith E. Coltrain,
for defendant-appellant.
TYSON, Judge.
Highlands Cove, L.L.C. (“defendant”) appeals from judgment
entered upon the verdict of the jury, the trial court's order
denying motion for judgment notwithstanding the verdict and/or new
trial, and the trial court's order awarding attorney and expert
witness fees. We affirm the judgment and remand for a new trial on
damages only, and we affirm the trial court's order awarding fees
in part and reverse in part.
At the outset we note that the appeal from the judgment and
the trial court's order denying defendant's motion for judgment
notwithstanding the verdict and/or new trial, COA00-1378, was
filed separate from the appeal of the order awarding attorney and
expert witness fees, COA00-1005. These inter-related appeals were
consolidated for hearing ex mero motu. See N.C.R. App. P. 40. Both appeals are decided within this opinion.
I. Facts
Defendant purchased approximately 400 acres of real property
that adjoins and is upstream from property owned by Whiteside
Estates, Inc. (“plaintiff”) in March of 1998. Defendant acquired
its property to construct residential units and a golf course.
Plaintiff, a corporation whose sole shareholders are O.E.
Young, Jr. (“Young”), his wife Mary Lou Young, and their five
children, owns approximately 265 acres. Plaintiff's property is
directly downstream from defendant's development. In 1957, Young
constructed a dam on Grassy Camp Creek (“creek”) which ran through
the property, forming an eighteen-acre lake known as Young Lake
(“lake”). The creek traverses both defendant's and plaintiff's
property.
The Land Quality Section of the North Carolina Department of
Environment and Natural Resources (“DENR”) issued defendant a
Sedimentation and Erosion Control permit and approved their plan
to develop its property on or about 29 July 1998. Defendant began
construction shortly thereafter.
The evidence tended to show that significant rainfall caused
sediment from defendant's land-disturbing activities to flow into
the creek in October 1998. Plaintiff's lake and creek collected
colloidal material after that first rainfall and every subsequent
rainfall, impacting the lake water's quality, damaging the creek,
and invading plaintiff's use and enjoyment thereof.
The North Carolina Division of Land Resources (“NCDLR”)
inspected the project almost weekly during defendant'sconstruction, compiling numerous reports. Although no statutory
“Notices of Violation” were issued pursuant to G.S. § 113A-61.1,
several reports indicated that: (1) defendant's activities utilized
“insufficient measures to retain sediment on site,” (2) defendant
failed “to take reasonable measures,” on site during construction,
and (3) defendant's site was not in compliance with the
Sedimentation Pollution Control Act (“Sedimentation Act”).
Plaintiff sought and obtained a temporary restraining order.
At the return hearing on the order, plaintiff sought to enjoin
defendant's project. The trial court denied the injunction.
Plaintiff then filed a complaint seeking damages for nuisance,
trespass, and violation of the Sedimentation Act on 31 March 1999.
Defendant answered denying all allegations and counterclaimed for
abuse of process. At the close of plaintiff's evidence and again
at the close of all the evidence, defendant moved for a directed
verdict. Both motions were denied. The jury returned a verdict in
plaintiff's favor of $500,000.00 on 6 March 2000. The jury's
verdict did not segregate the damages between plaintiff's three
claims. The trial court entered judgment thereon. Defendant moved
for judgment notwithstanding the verdict, or in the alternative, a
new trial. The trial court denied the motion on 30 May 2000.
Defendant appeals.
Plaintiff's counsel subsequently moved for attorney fees in
the amount of $67,246.50, expenses in the amount of $3,500.16, and
expert witness fees in the amount of $37,353.13 pursuant to G.S. §
113A-66(c). Copies of counsel's invoices for legal services, an
affidavit of William Clarke, plaintiff's counsel, copies ofinvoices for plaintiff's three expert witnesses, and an affidavit
of J. David Young, managing agent for plaintiff, were filed in
support of the motion.
Plaintiff amended its motion for attorney and expert witness
fees by reducing the amount requested for attorney fees by
$7,700.00, for work involving the same parties but for another
matter, on 8 May 2000. The amendment included a second affidavit
of William Clarke setting forth the hourly rates for the legal
services rendered, the fact that the hourly rates charged were
commensurate with the type of work involved, and are within the
range of such fees and charges customarily charged in the
community.
On 30 May 2000, the trial court entered an order awarding
plaintiff attorney fees in the amount of $58,546.50, less than
plaintiff's requested amount, and expert witness fees in the amount
of $37,353.13. Defendant appeals.
II. Issues
Defendant assigns the following errors on appeal: (1) the
trial court erred in denying defendant's motions for a directed
verdict and its motion for judgment notwithstanding the verdict or,
alternatively, a new trial because the evidence was insufficient to
sustain a judgment on plaintiff's three claims for relief; (2) the
trial court erred when it rejected defendant's proposed jury
instructions; (3) the jury verdict was excessive and reflected a
disregard for the jury instructions and was influenced by passion;
(4) the trial court erred by admitting into evidence the testimonyof two plaintiff witnesses and certain demonstrative evidence; and
(5) the trial court erred in granting plaintiff's attorney and
expert witness fees.
III. Sufficiency of the Evidence
A. Nuisance
[1]Defendant argues that plaintiff presented no evidence that
it interfered with corporate plaintiff's use and enjoyment of its
property.
“To recover in nuisance, plaintiffs must show an unreasonable
interference with the use and enjoyment of their property.”
Jordan
v. Foust Oil Co., Inc., 116 N.C. App. 155, 167, 447 S.E.2d 491, 498
(1994) (citation omitted). The interference or invasion which
subjects one to liability may be intentional or unintentional.
Morgan v. High Penn Oil Co., 238 N.C. 185, 193, 77 S.E.2d 682, 689
(1953).
Unintentional nuisance occurs when defendant's conduct is
negligent, reckless, or ultrahazardous.
Id. Intentional
nuisance, on the other hand, focuses on the unreasonableness of the
interference.
Watts v. Pama Mfg. Co., 256 N.C. 611, 617, 124
S.E.2d 809, 813 (1962);
see also David A. Logan & Wayne A. Logan,
North Carolina Torts, § 28.10, at 605 n.13 (1996) (A private
nuisance may be created or maintained without negligence). “A
person who intentionally creates or maintains a private nuisance is
liable for the resulting injury to others regardless of the degree
of care or skill exercised by him to avoid such injury.”
Morgan,
238 N.C. at 194, 77 S.E.2d at 689 (citations omitted);
Parker v.Barefoot, 130 N.C. App. 18, 502 S.E.2d 42 (1998),
rev. on oth
er
grounds, 351 N.C. 40, 519 S.E.2d 315 (1999)( A defendant's use of
state-of-the-art technology or the fact that he was not negligent
in the design or construction of his facility are not defenses to
a nuisance claim).
An intentional invasion or interference occurs when a person
acts with the purpose to invade another's interest in the use and
enjoyment of their land, or knows that it will result, or will
substantially result.
Morgan, 238 N.C. at 194, 77 S.E.2d at 689
(citations omitted).
An intentional invasion or interference, however, is not
always unreasonable.
Watts, 256 N.C. at 618, 124 S.E.2d at 814.
In
Watts, our Supreme Court listed factors to be considered in
assessing whether an intentional interference is unreasonable:
the surroundings and conditions under which
defendant's conduct is maintained, the
character of the neighborhood, the nature,
utility and social value of defendant's
operation, the nature, utility and social
value of plaintiffs' use and enjoyment which
have been invaded, the suitability of the
locality for defendant's operation, the
suitability of the locality for the use
plaintiffs make of their property, the extent,
nature and frequency of the harm to
plaintiffs' interest, priority of occupation
as between the parties, and other
considerations arising upon the evidence. No
single factor is decisive; all the
circumstances in the particular case must be
considered.
Id. (citations omitted);
See also Pendergrast v. Aiken 293 N.C.
201, 217, 236 S.E.2d 787, 797 (1977).
To be actionable, “[t]he interference must be substantial andunreasonable.
Substantial simply means a
significant harm to the
plaintiff and
unreasonably means that it would not be reasonable to
permit the defendant to cause such an amount of harm intentionally
without compensating for it.” W. Page Keeton et al.,
Prosser and
Keeton on the Law of Torts, § 88, at 626 (5th ed. 1984) (emphasis
supplied).
Once plaintiff establishes that the invasion or intrusion is
unreasonable, plaintiff must prove the invasion caused substantial
injury to its property interest.
Watts, 256 N.C. at 619, 124
S.E.2d at 814;
Rudd v. Electrolux Corp., 982 F.Supp. 355 (M.D.N.C.
1997) (need to install wells to monitor water quality presented
jury question whether defendant's invasion was substantial). “An
upper riparian landowner's unreasonable use of water quantity or
diminution of its quality permits a lower riparian owner to
maintain a civil action in nuisance or trespass to land.”
Biddix
v. Henredon Furniture Industries, Inc., 76 N.C. App. 30, 35, 331
S.E.2d 717, 721 (1985) (citations omitted). “The sedimentation of
streams, lakes and other waters of this State constitutes a major
pollution problem.” N.C. Gen. Stat. § 113A-51 (1975). “'The
ownership or rightful possession of land necessarily involves the
right not only to the unimpaired condition of the property itself,
but also to some reasonable comfort and convenience in its
occupation.'"
Kaplan v. Prolife Action League of Greensboro, 111
N.C. App. 1, 21, 431 S.E.2d 828, 838 (1993) (quoting Prosser,
supra, § 87, at 619 (footnote omitted)). Here, it is uncontroverted that the plaintiff is the owner of
the property, and that defendant engaged in land-disturbing
activity. Plaintiff presented evidence that defendant began
clearing its property in July of 1998. The evidence tended to show
that after significant rainfall, sediment from those activities
flowed into plaintiff's creek and lake, despite defendant's State-
approved erosion control measures. Plaintiff entered into evidence
numerous photographs of the lake's condition before and after
defendant's land-disturbing activity. Before defendant's
development began the lake was crystal clear. After defendant's
development commenced the lake had the appearance of coffee with
cream. There is substantial evidence that defendant's activities
were the major, if not the sole, source of the runoff.
Plaintiff offered expert testimony that described the
decreased level of water quality in the lake as well as increased
levels of erosion and sediment in its creek. Water sampling test
results tended to show that turbidity levels (a measurement of the
amount of light bouncing off suspended particles in water)
dramatically increased. Dr. Ken Wagner (“Wagner”) also testified
that defendant's sedimentation and erosion control plan was
inadequate, “causing high turbidity” in plaintiff's creek and lake.
He also described the harm caused to aquatic life in the lake.
Inspector Mike Goodson (“Goodson”) inspected defendant's
project for compliance with its plan, and testified as defendant's
witness that sedimentation had left the site and entered into the
creek. Goodson also testified that although he did inspect
defendant's property, he never “walk[ed] to the property boundary”to see if the sediment that left defendant's property damaged
plaintiff's property. He further testified that he never sampled
the water quality in plaintiff's lake.
Plaintiff's shareholders testified that for forty years the
lake and creek had been used for fishing, swimming, boating, and
other recreational uses. After defendant's land-disturbing
activities started, the water became polluted with sediment and the
lake was unfit for such activities. Defendant contends that
corporate plaintiff presented no evidence of harm to the
corporation: “Plaintiff offered no testimony of impairment of
business relationships, lost rentals, lost sales, or lost revenues
of any kind . . . Plaintiff put forth no evidence that the fair
market value of its asset had depreciated because of the alleged
injuries.” Defendant asserts that the evidence failed to support
a corporate nuisance claim. We disagree.
Plaintiff's corporate charter lists as one of its purposes and
objects to “buy, sell, exchange . . . water rights and privileges;
to build, construct, operate, maintain, . . . reservoirs to impound
water, . . . .” Sedimentation deposits and collodial suspended
material substantially damage water quality and impact the above
mentioned corporate use.
A plaintiff need not establish loss of fair market value in
the property or lost rentals, sales, or revenues to show sufficient
injury to support damages in nuisance. These items are one method
of measuring damages after substantial injury is proven, not a
method for determining injury. Plaintiff must show that the injury
was substantial or significant.
Watts, 256 N.C. at 619, 124 S.E.2dat 814. Here, plaintiff's shareholders testified that the injury
to its lake and creek was substantial and significant.
The record supports the jury's finding that substantial
evidence exists that defendant intentionally caused and allowed
colloidal material to flow into plaintiff's creek and lake to such
a degree as to substantially and unreasonably interfere with
plaintiff's use and enjoyment of its land. The evidence was also
sufficient for the jury to conclude that the injury to plaintiff's
property was substantial and significant to recover damages.
B. Trespass
[2]Defendant argues that the evidence failed to support a
claim for trespass because no suspended solids were deposited on
the land, “but rather continued downstream as water in the lake was
released.” Defendant asserts that since there was no evidence that
sediment settled in the lake, and that “there is no property right
in any particular particle of water or in all of them put together”
there can be no trespass.
Smith v. Town of Morganton, 187 N.C.
801, 802, 123 S.E.2d 88, 89 (1924). Defendant also contends that
if there is sediment on plaintiff's property there is no evidence
that defendant caused it.
A fuller contextual quotation from
Smith v. Town of Morganton
reveals defendant's error with respect to property rights in water.
the right to have a natural water course
continue its physical existence upon one's
property is as much property as is the right
to have the hills and forests remain in place,
and while there is no property right in any
particular particle of water or in all of them
put together, a riparian proprietor has theright of their flow past his lands for
ordinary domestic, manufacturing, and other
lawful purposes, without injurious or
prejudicial interference by an upper
proprietor. (citation omitted) . . . [A]
riparian proprietor is entitled to the natural
flow of a stream running through or along his
land in its accustomed channel, undiminished
in quantity and unimpaired in quality, except
as may be occasioned by the reasonable use of
the water by other like proprietors.
(citations omitted).
Id. at 803, 123 S.E.2d at 89.
Defendant's argument that since there was no evidence that any
suspended material in the lake settled bars recovery in trespass is
misplaced. First it fails to address the evidence that there was
sediment in and about plaintiff's creek caused by defendant's land-
disturbing activity. Second, Wagner testified that “there is a
fine coating of sediment on the bottom [of the lake]. It's not
much . . . but that fine stuff could get resuspended by wind . . .
and cause high turbidity.”
“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.” Foust Oil Co., Inc., 116 N.C. App.
at 166, 447 S.E.2d at 498 (citing Matthews v. Forrest, 235 N.C.
281, 283, 69 S.E.2d 553, 555 (1952)).
Viewing the evidence in the light most favorable to the
plaintiff, we hold that there is sufficient evidence for the jury
to conclude that defendant's land disturbing activities caused
sediment to unlawfully enter upon plaintiff's property causingdamage and injury.
C. Sedimentation Pollution Control Act
[3]Although we find that the nuisance and trespass claims are
sufficient to show damages, we address defendant's assignment of
error regarding the statutory claim. The Sedimentation Act
contains an attorney fee and expense shifting clause. N.C. Gen.
Stat. § 113A-66(a)(4)(1999). The trial court awarded plaintiff
attorney and expert witness fees following the jury's finding that
defendant violated the Sedimentation Act.
Defendant argues that it did not violate the Sedimentation Act
nor did it cause damage or injury to plaintiff's property. We
disagree.
The act expressly authorizes a private action for damages:
“[a]ny person injured by a violation of [the
Sedimentation Act] . . . or by the initiation
or continuation of a land-disturbing activity
for which an erosion control plan is required
other than in accordance with the terms,
conditions, and provisions of an approved
plan, may bring a civil action [seeking
damages] against the person alleged to be in
violation . . . .”
N.C. Gen. Stat. § 113A-66(a)(1999).
Defendant correctly argues that “[t]o be recoverable, the
damages sought by the plaintiffs must be 'caused by the
violation.'” Huberth v. Holly, 120 N.C. App. 348, 353, 462 S.E.2d
239, 243 (1995). This Court in Holly found no violation of the
Sedimentation Act because there was no evidence that the violation
caused the loss of trees or groundcover. Id. (emphasis supplied).
Here, we find there was sufficient evidence for the jury toconclude that defendant's violation of the Sedime
ntation Act caused
sediment to damage plaintiff's creek and lake. Although no
statutory “Notices of Violation” were issued and Inspector Goodson
testified that defendant had “done as good a job as they can do,”
substantial evidence proves that sediment left defendant's site and
caused injury to plaintiff.
Goodson testified that “there were times when I felt like they
weren't meeting the plan and steps were taken to correct that.”
Goodson stated that he would “scream and yell” at the contractors
to correct the problems. Goodson also testified that during at
least one inspection a “basin had filled up and some sediment had
gone . . . into grassy camp [creek].” He further testified that he
never walked to the plaintiff's property to see if sediment that
migrated into the creek on defendant's property traveled through
the creek or lake onto plaintiff's property.
An inspection report dated 6 October 1998 stated that there
were “[i]nsufficient measures to retain sediment on site, G.S.
113A-57(3).” This report also cited defendant's “[f]ailure to take
all reasonable measures, 15A NCAC 4B.0005” and that the site was
not in compliance with the Sedimentation Act and the rules.
Goodson noted defendant's need to “install measures to retain
sediment within property boundaries. Install silt fence per
approved plan.” The report stated that “access bridges across 13
& 14 fairways are not adequately protected and stabilized, silt
fence . . . not properly toed in, sediment is leaving site at end
of #15 fairway.” The report concluded that these items must be
addressed immediately. A report on 7 December 1998 noted that the site is not
currently in compliance with the Sedimentation Act and the rules.
The development had failed “to follow approved plan, G.S. 113A-
61.1.” The report required defendant to “install measures per
approved plan” as corrective actions needed. Additional comments
noted that “[s]ediment trap #SP18FR2 has not been installed per
plan . . . Areas in PH.I have not been stabilized per construction
schedules discussed on 12/4/98.”
Another report dated 16 December 1998 also concluded that the
development was not in compliance with the Sedimentation Act and
rules. The report found that (1) the site had an “inadequate
buffer zone, G.S 113A-57(1);” (2) it failed “to maintain erosion
control measures, 15A NCAC 4B.0013;” (3) there were “insufficient
measures to retain sediment on site, G.S. 113A-57;” (3) and that
sedimentation damage has occurred since the last inspection. The
report required the defendant to “re-install buffer-zone at bridge
site on #10.” The report noted that the “silt fence . . . is in
disrepair at #10 bridge site. Need to seed and mulch around this
area to reestablish buffer.”
Viewed in the light most favorable to the plaintiff, we hold
that there was sufficient evidence to find defendant violated the
Sedimentation Act and damaged plaintiff.
IV. Verdict Amount
[4]Defendant argues that the $500,000.00 jury verdict was
excessive, reflected a disregard for the trial court's jury
instructions, and based on passion or prejudice. Defendant
contends that evidence of the cost of repair was speculative,conjectural, and lacked reasonable certainty. Defendant requests
that we modify the judgment to $20,000.00, “the maximum amount that
could properly have been awarded.” Alternatively, defendant
requests that we reverse judgment and order a new trial.
The trial court's jury instruction included the following:
“In this case you will determine actual damages by determining the
reasonable costs to the plaintiff of expenses shown by the evidence
necessary for repairing or restoring the plaintiff's property. You
may not speculate in regard to future damages, if any.”
Once liability is established for an abatable or temporary
nuisance, the remedy includes money damages.
Phillips v. Chesson,
231 N.C. 566, 569-70, 58 S.E.2d 343, 346 (1950). For an abatable
nuisance, plaintiff may only recover damages up to the time of the
complaint or trial.
Id.; see also Webb v. Virginia-Carolina
Chemical Co., 170 N.C. 662, 666, 87 S.E. 633, 635 (1916). Future
damages must be recovered in successive actions.
Id. “The
continued migration of contaminants remains a nuisance and when
each contaminant crosses onto an adjoining property, there is a new
trespass and injury.”
Electrolux Corp., 982 F.Supp at 369. “The
kinds of damages recoverable include: diminished rental value;
reasonable costs of replacement or repair; restoration of the
property to its pre-nuisance condition; and other added damages for
incidental losses.”
Id. at 372 (citing
Phillips, 231 N.C. at
571-72, 58 S.E.2d at 348). “Some commentators indicate that
incidental losses might include, under appropriate circumstances,
recovery of plaintiff's reasonable costs incurred to prevent futureinjury or abate the nuisance or its harmful effects.”
Id. a
t n.12
(citing Prosser,
supra, § 89 at 640). “Where the nuisance is the
kind that does more or less tangible harm to the premises, the cost
of repair or restoration may be the appropriate measure of damages,
. . . .” Prosser,
supra, § 89, at 639 (quoting Dobbs,
Remedies,
1973, 332-335).
Plaintiff is entitled to compensation to the extent that he
has established damages “'with as much certainty as the nature of
the tort and the circumstances permit.'”
Largent v. Acuff, 69 N.C.
App. 439, 444, 317 S.E.2d 111, 114 (1984) (citation omitted).
Proof of damages requires “'that the plaintiff adduce some relevant
datum from which a 'just and reasonable' estimate of the amount
might be drawn . . . [This] does not require proof of damages with
mathematical precision.'”
Id.
At bar, plaintiff offered expert testimony of the cost to
repair and restore its creek and lake. All of the approaches
assumed that the source, defendant's activities, would be
adequately controlled. If not controlled, repairing and restoring
plaintiff's property would be ineffective.
Wagner testified that cleaning the lake would cost $20,000.00.
He explained that “of course, you only want to do that once you've
controlled the source.”
Controlling the source involved repairing and restoring the
creek and controlling the amount of sedimentation emanating from
defendant's property. Wagner discussed two procedures to restore
the creek. One approach would cost between $75,000.00 and$150,000.00. The other approach would “be, roughly, double the
cost of the other approach.” The evidence adduced to repair and
restore the lake and creek on plaintiff's property ranged from
$95,000.00 to $320,000.00. We conclude that plaintiff's evidence
has failed to establish, with as much certainty as the nature of
the circumstances permit, the reasonable estimate of the cost to
repair and restore plaintiff's lake and creek to its pre-nuisance
condition.
Wagner testified concerning the cost of adequate detention to
control the erosion coming off defendant's property. He testified
that adequate detention would cost between $1,400,000.00 and
$4,000,000.00. Defendant argues that Wagner's testimony about
controlling and detaining the source on defendant's property was
evidence of defendant's preventing injuries or “at most evidence of
costs defendant should have incurred” and “irrelevant to the issue
of how much plaintiff was entitled to recover” in damages. We
agree that Wagner's testimony about the cost of controlling the
sedimentation coming off defendant's property was evidence of
defendant's costs on his property. We note that the evidence about
controlling the erosion coming off defendant's property, however,
was not irrelevant to the determination of plaintiff's damages.
Plaintiff was entitled to the cost to control that source only if
necessary to repair and restore the creek and lake. No evidence at
trial established with reasonable certainty plaintiff's costs to
control, on plaintiff's property, the source of sediment coming off
defendant's property.
Wagner testified that defendant's sedimentation and erosioncontrol plan was inadequate. He also testified that if
nothing
were done to prevent and control sediment coming down the creek
from defendant's property, the repairs of the lake and creek on
plaintiff's property would be ineffective. The jury could have
reasonably concluded that in order to restore and repair
plaintiff's lake and creek, plaintiff would have to take adequate
and reasonable measures to control the source on its property.
The only testimony regarding the cost to control the source of
sedimentation was testimony by Wagner. He testified that “they
[defendant] need a lot more detention and they need some sort of
auxiliary system to remove the colloidal material that are causing
high turbidity.” He estimated defendant's cost between
1,400,000.00 and 4,000,00.00.
We hold that there is insufficient evidence in the record of
the reasonable estimate of costs to repair and restore the creek
and lake to its pre-nuisance condition with as much certainty as
the circumstances require. The record contains no evidence
regarding the plaintiff's cost to control the source on its
property. We remand for a new trial on damages only. N.C. Gen.
Stat. § 1-297 (1969).
V. Jury Instructions
Defendant contends the trial court erred by refusing to give
defendant's four additionally requested jury instructions. We
disagree.
When a party's requested jury instruction is correct and
supported by the evidence, the trial court is required to give the
instruction. The instructions need not be given exactly assubmitted, but they must be given in substance.
State v. Davis,
291 N.C. 1, 229 S.E.2d 285 (1976);
Haymore v. Thew Shovel Co., 116
N.C. App. 40, 49, 446 S.E.2d 865, 871 1994 (citation omitted). The
trial court has discretion to refuse instructions based on
erroneous statements of the law.
State v. Agnew, 294 N.C. 382,
395-96, 241 S.E.2d 684, 692 (citations omitted),
cert denied, 439
U.S. 830, 58 L. Ed. 2d 124 (1978).
A. Corporate Plaintiff
[5]Defendant asked the trial court to instruct the jury as
follows:
there has also been evidence offered by the
individuals O.E. Young, David Young and Mary
Lou Young tending to show that they have lost
the use of the lake for swimming, fishing,
frogging, boating and the general pleasure of
enjoying the view of the lake and its use by
themselves and their friends, relatives and
guests. I charge you in this regard that the
corporation may not recover for any personal
loss by these individuals, or any other
individuals. Their testimony should be
considered by you only in connection with the
history of the lake or its general fitness for
use for these purposes, if at all, unless they
were, in so using the lake, doing so in
pursuit of some corporate purpose.
The trial court did not give this instruction. Defendant
argues that any evidence from plaintiff's shareholders regarding
the condition of the lake was not evidence of damage sustained by
the plaintiff. This argument is without merit. Plaintiff's
shareholder's testimony about the condition of the lake goes
directly to the question of injury sustained to the property. Any
relevant evidence establishing injury to the plaintiff's property
was appropriate.
B. Preventive Measures by Defendant
[6]Defendant requested the trial court charge the jury that
“preventive measures may not be considered by you as any measure of
damage suffered by plaintiff.” The trial court's instruction
included the following: “In this case you will determine actual
damages by determining the reasonable costs to the plaintiff of
expenses shown by the evidence necessary for repairing or restoring
the plaintiff's property. You may not speculate in regard to
future damages, if any.”
Any evidence offered by the plaintiff
with respect to adequately detaining the source of sediment leaving
defendant's property is not necessarily evidence of preventive
measures. Plaintiff would be entitled to costs for controlling the
source of sediment on defendant's property when it impacts
plaintiff's property if necessary to repair and restore the creek
and lake. If defendant does not adequately detain sediment from
leaving its property or prevent injury to plaintiff's property,
plaintiff can take reasonable measures to protect its property in
order to repair and restore its lake and creek.
C. Aesthetic Damages
Defendant requested that the trial court instruct the jury in
part that “I charge you that there has been no evidence of a
valuation or amount of damage caused by this [aesthetic] injury.”
Whether evidence has been presented or not is a question for the
jury. This requested instruction was erroneous. There was
sufficient evidence of plaintiff's injury to sustain an award for
damages.
D. Increase Sedimentation Charge
Defendant requested the additional instruction that “sediment
being deposited now [on plaintiff's property] is no more than, or
not measurable more than in the past.” Both sides presented their
evidence. It was for the jury, as fact finder, to determine from
the evidence the volume of sediment that flowed onto plaintiff's
property. The amount of sediment affecting plaintiff's property
goes to the issue of reasonableness of the interference or invasion
and the significance of the injury.
The trial court's instructions to the jury sufficiently
defined the law and were supported by the evidence with respect to
every substantive element of the case. Defendant's assignments of
error are overruled.
VI. Testimony and Demonstrative Evidence
[7]Defendant contends that the introduction of turbidity
samples from the lake and creek water into evidence was error.
Defendant claims that the instrument used by plaintiff's expert
witness John Boaze (“John”) was not properly calibrated.
The admissibility of scientific evidence is governed by Rules
702 and 703 of the North Carolina Rules of Evidence. N.C. Gen.
Stat. § 8C-1, Rule 702-703 (1999). “Whether scientific opinion
evidence is sufficiently reliable and relevant is a matter
entrusted to the sound discretion of the trial court.”
State v.
Spenser, 119 N.C. App. 662, 664, 459 S.E.2d 812, 814 (1995)
(citation omitted). After a
voir dire hearing,
the trial court
determined that John's testimony about turbidity sampling was
reliable. Sufficient evidence in the record supports the trialcourt's finding.
John testified that he has twenty-eight years experience
taking water samples after obtaining his master's degree. He had
prepared annual reports of water quality for the Army Corps of
Engineers investigating impacts on stream water. At the time of
trial, John was monitoring turbidity levels during the construction
of state route 52 in Tennessee.
Additionally, defense counsel cross-examined John. Defendant
offered no evidence of turbidity readings. Nor did defendant offer
any evidence that the measurements were inaccurate. Accordingly,
we find no abuse of discretion.
Defendant also argues that five jars of water with different
turbidity levels should have been excluded because no one
authenticated the evidence as being the water in plaintiff's lake.
After
voir dire of plaintiff's expert witness Pam Boaze (“Pam”),
the trial court allowed the five jars into evidence for
illustrative purposes only to demonstrate what various levels of
turbidity look like. Pam authenticated the evidence not as water
from the lake, but as demonstrative evidence to assist the jury in
determining different levels of turbidity. The exhibits were not
introduced as substantive evidence. This assignment of error is
overruled.
VII. Attorney and Expert Witness Fees
Defendant argues on appeal that the trial court's granting of
attorney and expert witness fees: (1) erroneously included expenses
incurred in prosecuting its common law claims and defending its
counterclaim, (2) were not supported by the evidence and findingsof fact, and (3) the court improperly awarded expert witness fees
without proof that the witnesses were subpoenaed.