Appeal by defendant/third party plaintiff from judgment
entered 23 August 2000 and order entered 6 October 2000 by Judge
Gary E. Trawick, and also from order entered 8 February 2002 by
Judge W. Allen Cobb, Jr., in New Hanover County Superior Court.
Heard in the Court of Appeals 14 February 2002.
Hogue Hill Jones Nash & Lynch, L.L.P., by David A. Nash, for
plaintiff-appellees.
Murchison, Taylor & Gibson, L.L.P., by Michael Murchison, for
defendant/third party plaintiff-appellant.
Johnson & Lambeth, by Robert W. Johnson and Anna Johnson
Averitt, for third party defendant-appellees.
MARTIN, Judge.
Plaintiffs brought this action seeking monetary damages and
injunctive relief upon allegations that defendant Baker Precythe
Development Corporation (Baker) had created a private nuisance by
filling in a drainage ditch, resulting in damage to their property.
Defendant Baker denied that any action on its part had damagedplaintiffs, counterclaimed against plaintiffs Roseman for trespass,
and filed a third party complaint against third party defendants
A.V. Saffo and Jack Stocks seeking indemnity for any liability
defendant might have to plaintiffs. Defendant also filed a third
party complaint against University Group, Inc., which it
subsequently dismissed. Defendant Baker appeals (1) from an order
granting summary judgment in favor of third party defendants Saffo
and Stocks, (2) from a judgment, entered upon a jury verdict,
awarding plaintiffs damages for defendant's obstruction of a
drainage ditch and ordering that defendant abate the nuisance by
piping water from the ditch across defendant's property, and (3)
from the order entered denying defendant's motion for judgment
notwithstanding the verdict. For the reasons which follow, we
affirm summary judgment in favor of the third party defendants
Saffo and Stocks, and find no error in the trial of plaintiffs'
claim against defendant Baker.
Briefly summarized, the evidence at trial tended to show that
defendant purchased a 17.472 acre tract (the Baker tract) of land
in New Hanover County in June 1997 from B & D Development
Corporation. The Baker tract was located immediately north of a 12
acre tract belonging to plaintiffs Harold and Eloise Roseman, upon
which was located the Rosemans' residence and a small mobile home
park. Adjacent to, and south of, the Rosemans' property was the
Hidden Valley subdivision, which had been developed in the 1980s by
Hidden Valley Corporation. Hidden Valley Corporation has been
liquidated; its primary shareholders were A.V. (Dokey) Saffo andJack Stocks. Plaintiff BNT Company (BNT) is a partnership composed
of Vassilios A. Saffo, Nicholas A. Saffo, and Anthony A. Saffo.
BNT owns two lots in Hidden Valley subdivision, located at 340
Hidden Valley Road and 400 Hidden Valley Road. At all times
relevant to this action, plaintiff Mark Gilson was the lessee of
the premises at 340 Hidden Valley Road and plaintiffs Zion and
Dorit Kapach were the lessees of the premises located at 400 Hidden
Valley Road.
A drainage ditch crossed the Roseman property from south to
north, which provided drainage from the Hidden Valley subdivision
across the Roseman property into a wetlands area north of the
Roseman property. In the early 1990s, B & D purchased the tract
north of the Roseman property, which included the Baker tract, and
developed the Crosswinds subdivision. In 1997, B & D conveyed the
Baker tract to defendant. The drainage ditch in question crossed
the Baker tract.
In 1998, defendant Baker began development of a subdivision
known as Masonboro Village. On 26 June 1998, Baker closed the
ditch on its property. The ditch closing alleviated flooding
problems on the Baker tract, as well as flooding of the Crosswinds
subdivision, which was adjacent to Baker's tract and north of
plaintiffs' property. However, plaintiffs alleged that since the
closing of the ditch, the properties south of the Masonboro Village
Subdivision experienced repeated flooding resulting in substantial
property damage.
Harold Roseman testified that he never experienced flooding onhis tract of land prior to the closing of the ditch. After
defendant closed the ditch, Roseman stated that his property
flooded “every time it rains.” Roseman testified that he incurred
damages to a mobile home, dogwood trees, azaleas and other plants.
He also lost fish from his fish pond. Bill Saffo, a one-third
interest partner in plaintiff BNT Company, testified that the
partnership rented houses on its lots to plaintiffs Marc Gilson and
the Kapachs. Saffo testified that the lots did not flood following
Hurricane Bertha in July 1996, nor did they flood following
Hurricane Fran in September 1996. Following the closing of the
ditch, however, the lots and homes began experiencing flooding “on
numerous occasions.” Saffo stated that he had not been able to
rent the houses since September 1998 because they “continuously
flood.” Saffo stated that a general contractor estimated repairs
totaling $35,000 to the home previously occupied by Gilson and
$14,000 for the home rented by the Kapachs. In addition, at the
time of trial BNT had lost two years' worth of rental income.
Defendant contended, however, that A.V. Saffo and Jack Stocks
had illegally excavated the ditch across a ridge on the Baker tract
in the 1970s or 1980s in an effort to drain the low lying areas of
the Hidden Valley subdivision. Also, defendant's expert, Everette
Knight, a civil engineer, testified that defendant's “closing of
the ditch had an insignificant effect on [the Saffos'] property
during the major storm events . . . .” He testified that the
Rosemans' property flooded due to low elevation; according to
Knight, the ditch was also clogged with debris which increased therisk of flooding. Knight further testified that, based on
measurements of the elevations of the tracts, the water at one time
flowed from north to south, rather than the current south to north
flow. According to Knight, this change in water flow would have to
have been caused by the digging of a ditch so as to “penetrate the
ridge.” Knight concluded that one of BNT's rental houses was in a
low-lying depression which was the cause of the damage to the home
from flood waters; in a major storm event such as a hurricane, “the
water level is going to get above the finished floor elevation of
this house.” Knight admitted that he was not aware of any flooding
occurring on the Rosemans' property or the BNT lots during
Hurricanes Fran and Bertha, storm events which occurred before
defendant filled in the ditch in June 1998. Although Knight
testified that from the photographs he observed “what looks to be
a ditch that was built in the 1980s,” he also testified that he saw
a feature in a 1938 photograph of the area that could have been a
drainage ditch with a similar configuration as the drainage ditch
observed in the 1984 photograph. Shawn Maxwell, a photogrammatist
and expert witness for plaintiffs, testified that from an analysis
of three photographs from the relevant area, he observed a drainage
ditch present in the same location as far back as 1938.
_______________
I.
Defendant first contends the trial court erred by denying
defendant's motions for directed verdict, made at the close of all
the evidence, and for judgment notwithstanding the verdict on theissue of causation. A motion for directed verdict pursuant to G.S.
§ 1A-1, Rule 50(a) tests the sufficiency of the evidence to support
a verdict for the non-moving party.
Stanfield v. Tilghman, 342
N.C. 389, 464 S.E.2d 294 (1995). A motion for judgment
notwithstanding the verdict pursuant to G.S. § 1A-1, Rule 50(b) is,
in essence, a renewal of an earlier motion for directed verdict.
Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). The same
test is applied when ruling on either motion.
Bryant v. Nationwide
Mutual Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985). On a
defendant's motion for a directed verdict or judgment
notwithstanding the verdict, the plaintiff's evidence must be taken
as true and in a light most favorable to him, and the motion should
be denied only if, as a matter of law, the evidence is insufficient
to justify a verdict for the plaintiff.
Dickinson, 284 N.C. 576,
201 S.E.2d 897.
In considering any motion for directed
verdict, the trial court must view all the
evidence that supports the non-movant's claim
as being true and that evidence must be
considered in the light most favorable to the
non-movant, giving to the non-movant the
benefit of every reasonable inference that may
legitimately be drawn from the evidence with
contradictions, conflicts, and inconsistencies
being resolved in the non-movant's favor.
Bryant at 369, 329 S.E.2d at 337-38 (citation omitted).
Defendant specifically argues that plaintiffs failed to
present necessary expert testimony establishing that the actions of
defendant caused the flooding on plaintiffs' property. Defendant
cites
Davis v. City of Mebane, 132 N.C. App. 500, 512 S.E.2d 450
(1999) for the rule that expert testimony is required to establishproximate causation of flooding. In
Davis, a hydroelectric dam
allegedly caused atypical downstream flooding. Due to the
complexity of the situation, the Court of Appeals held that “expert
testimony is necessary to prove causation
in this case.”
Id. at
504, 512 S.E.2d at 453 (emphasis added).
There are many instances in in [sic] which the
facts in evidence are such that any layman of
average intelligence and experience would know
what caused the injuries complained of . . .
Where, however, the subject matter . . . is
“so far removed from the usual and ordinary
experience of the average man that expert
knowledge is essential to the formation of an
intelligent opinion, only an expert can
competently give opinion evidence as to the
cause of . . . [the] condition.”
Id. (quoting
Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d
753, 760 (1965) (citations omitted)).
Unlike the unusual circumstances in
Davis, the facts of the
instant case are such that a layperson could form an intelligent
opinion about whether the flooding was caused by the closing of the
ditch. Plaintiffs presented specific testimony on causation
similar to that accepted by the North Carolina Supreme Court in the
case of
Cogdill v. Highway Comm. and Westfeldt v. Highway Comm.,
279 N.C. 313, 182 S.E.2d 373 (1971). Harold Roseman, who has owned
his portion of the affected property since 1962, testified that he
had never experienced flooding on his property prior to June 1998,
when defendant closed the ditch. Once the ditch was closed,
according to Roseman, his land flooded every time it rained. He
also stated that when the ditch was not closed, the water flowed
from south to north onto Baker's property. Bill Saffo, a partnerin BNT Company, testified that the BNT properties did not flood
during Hurricanes Bertha and Fran in 1996, but following the
closing of the ditch in June 1998, those properties flooded on
several occasions. Since September 1998, plaintiff BNT has been
unable to rent the houses on its lots due to repeated flooding.
In addition, Dan Dawson, an independent engineer whose firm
was employed by the county and who conducted a comprehensive
drainage study in the Crosswinds/Hidden Valley area, testified that
the closing of the ditch “interrupted the drainage flow in that
area,” which could result in flooding “[i]f the water could not
escape in some alternate manner.” Finally, John Baker, a 50
percent shareholder in defendant company, testified that he
realized, when he filled in the ditch, that he “would be stopping
water that would probably flood [the Rosemans'] ditches.” We hold
that plaintiffs presented sufficient evidence to support the jury's
verdict as to causation, and the trial court did not err in denying
defendant's motions for a directed verdict and for judgment
notwithstanding the verdict. Defendant's assignments of error to
the contrary are overruled.
II.
Defendant next contends the trial court erred by failing to
include defendant's written request for a specific instruction
related to nuisance. Defendant requested that the jury be
instructed to consider, as one of the factors relevant to the
nuisance charge, “plaintiffs' fault or lack of care in creating the
harm sustained.” This request stems from defendant's contentionthat plaintiffs acquiesced in the third party defendants' allegedly
illegal extension of the ditch onto defendant's property. Pursuant
to N.C.R. Civ. P. 51(b), “when a party aptly tenders a written
request for a specific instruction
which is correct in itself and
supported by the evidence, it is error for the court to fail to
give the instruction at least in substance.”
Williams v. Randolph,
94 N.C. App. 413, 425, 380 S.E.2d 553, 561,
disc. review denied,
325 N.C. 437, 384 S.E.2d 547 (1989) (emphasis added) (citing
Bass
v. Hocutt, 221 N.C. 218, 19 S.E.2d 871 (1942)). The instruction
requested by defendant regarding “plaintiffs' fault or lack of
care” is tantamount to a contributory negligence instruction. The
defense of contributory negligence may, in certain circumstances,
be available in a private nuisance action arising from defendant's
alleged negligence in creating the nuisance.
Boldridge v. Crowder
Const. Co., 250 N.C. 199, 203, 108 S.E.2d 215, 218 (1959)
(“whenever a nuisance has its origin in negligence, one may not
avert the consequences of his own contributory negligence by
affixing to the negligence of the wrongdoer the label of a
nuisance.”) (citation omitted).
Neither the allegations of the complaint nor the evidence at
trial supported a negligence theory of liability in this case. The
complaint alleged defendant's actions were “intentional,
unreasonable, reckless and in total disregard to the health and
safety of the plaintiffs.” The evidence showed that defendant
intentionally closed the ditch; defendant contended through the
testimony of its expert witness that the flooding was due to causesother than the ditch closure. Thus, the theory of liability upon
which the case was tried was whether defendant violated the
“reasonable use” doctrine, articulated in
Pendergrast v. Aiken, 293
N.C. 201, 236 S.E.2d 787 (1977), and the trial court correctly
refused to give the requested instruction.
See Youmans v. City of
Hendersonville, 175 N.C. 574, 96 S.E. 45 (1918) (refusing to apply
contributory negligence rule where alleged injuries were in the
nature of nuisance or trespass).
III.
Defendant also assigns error to the denial of its motion for
judgment notwithstanding the verdict and to the entry of judgment
on the verdict on the grounds the evidence was insufficient to
support the jury's damage award. We disagree.
Plaintiffs presented substantial evidence of the losses
incurred as a result of defendant's closing of the ditch. Harold
Roseman testified that he incurred damages to a mobile home, damage
to personal property, damage to his truck as a result of having to
drive over rough terrain because his driveway was flooded, as well
as damage to landscaping on his property. The Rosemans also lost
rental income from their rental mobile homes. Dorit Kapach
testified as to damages to various items of personal property, the
value of frozen food lost when the Kapachs were unable to turn
their electricity on because their rental house was flooded, and
lost wages due to their inability to go to work due to the
flooding. Bill Saffo testified that BNT Company incurred extensive
damage to its rental homes, as well as the loss of rental incomefor two years. Defendant has not brought forward any assignment of
error with respect to the admission of such evidence. Plaintiffs
are entitled to recover all pecuniary losses shown with reasonable
certainty by the evidence to have resulted from defendant's
wrongful act.
Huff v. Thornton, 287 N.C. 1, 213 S.E.2d 198 (1975).
“The determination of such damages is left to the sound judgment
and discretion of the trier of fact.”
Hanna v. Brady, 73 N.C. App.
521, 527, 327 S.E.2d 22, 25,
disc. review denied, 313 N.C. 600, 332
S.E.2d 179 (1985) (citations omitted).
Defendant also contends BNT was impermissibly awarded damages
for lost rentals because its evidence included only evidence of
gross rentals lost during the period, and did not take into account
costs associated with renting the properties. Defendant contends
that BNT is entitled to recover only its net rental loss. We
reject this argument as well.
Bill Saffo testified, without objection, as to monthly rentals
of each of the properties damaged by the flooding. He was cross-
examined extensively by defendant's counsel concerning those
amounts. Mr. Saffo testified that BNT was required to continue
paying the mortgages, taxes, insurance, utilities, and other
expenses associated with the properties during the time when they
could not be rented due to the damage caused by defendant's
blockage of the ditch. He testified that the only expense BNT was
not required to pay was the rental management fee. The trial court
instructed the jury that damages could include “any loss of income,
including rental income, . . . as a result of the defendant'sblocking of the ditch.” Although defendant assigned error to the
trial court's jury instructions regarding damages, the assignment
of error was not brought forward in defendant's brief and is,
therefore, abandoned and not before us. N.C.R. App. P. 28(b)(5).
Our Supreme Court has held that damages in a tort action
include compensation “for all pecuniary losses sustained . . .
which are the natural and probable result of the wrongful act and
which . . . are shown with reasonable certainty by the evidence.”
Champs Convenience Stores v. United Chem. Co., 329 N.C. 446, 462,
406 S.E.2d 856, 865 (1991) (quoting
Huff v. Thornton, 287 N.C. 1,
8, 213 S.E.2d 198, 204 (1975)). Pointing out that the scope of
recovery in a tort action, i.e., whether the damages were the
natural and probable consequence of the wrong, is more liberal than
in a contract action, where the recovery is based upon whether the
damages were within the legal contemplation of the parties, the
Court held that a plaintiff was entitled to recover not only lost
profits but also reasonable overhead expenses incurred during the
period when the plaintiff was unable to operate the business.
Id.
The same principle is applicable here. As a result of defendant's
act, BNT was unable to rent the houses, losing rentals, but
continued to accrue and pay expenses such as mortgage payments,
taxes, utilities, and insurance. Thus, BNT was not limited to
recovery of the net rentals. Defendant's assignments of error
regarding the sufficiency of the evidence to support the damage
awards are overruled.
IV.
Finally, defendant Baker, as third party plaintiff, contends
the trial court erred by granting the motion of the third party
defendants Saffo and Stocks for summary judgment, and dismissing
its claim against them for indemnity. We disagree.
The burden is on the party moving for summary judgment to show
the absence of any genuine issue of material fact and that party's
entitlement to judgment as a matter of law.
Lyles v. City of
Charlotte, 120 N.C. App. 96, 461 S.E.2d 347 (1995). That burden
may be met by showing that an essential element of the opposing
party's claim is either nonexistent or that evidence is not
available to support it; the burden may also be met by showing that
the opposing party cannot overcome an affirmative defense raised in
bar of its claim.
Id.
In its third party complaint, defendant Baker alleged that
A.V. Saffo and Jack Stocks were the principals in Hidden Valley
Corporation, “a defunct corporation,” which was the developer of
Hidden Valley subdivision. As to those third party defendants,
Baker alleged
4. In the late 1970' [sic] or early 1980's,
third party defendants Saffo and Stocks
improperly ordered the enlargement of and
excavation of a ditch extending from the
northerly boundary of the Hidden Valley
subdivision across property of plaintiff
Roseman into property currently being
developed by third party plaintiff Baker
Precythe Development Company as the Masonboro
Village subdivision, without first procuring
the consent of the then owner of the property.
5. To the extent defendant/third party
plaintiff Baker Precythe Development Company
is liable to plaintiffs in conjunction with
the closure of the aforesaid ditch, whichliability is expressly denied, third party
defendants Saffo and Stocks are liable to
defendant/third party plaintiff Baker Precythe
Development Company for all or part of
plaintiffs' claim against it by reason of the
aforesaid actions.
Defendant, as third party plaintiff, sought as relief:
judgment against the third party defendants
A.V. (Dokey) Saffo, Jack Stocks . . . for all
sums that may be adjudged against defendant
Baker Precythe Development Company in favor of
plaintiffs.
Third party defendant Saffo testified that he, third party
defendant Stocks, and A. L. McCarley were equal shareholders in
Hidden Valley Corporation, which developed Hidden Valley
subdivision. He testified that in the early 1980s the corporation,
which is no longer in existence, contracted with Phil Jernigan, a
contractor, to clean out the ditch, but that Mr. Jernigan did not
widen or deepen the ditch. Defendant/third party plaintiff made no
showing to the contrary. Except under circumstances not shown by
the evidence to be applicable here,
see,
for example, G.S. § 55-14-
08, shareholders are not personally liable for the acts of the
corporation.
N.C. Gen. Stat. § 55-6-22(b). Thus, third party
defendants Saffo and Stocks can have no personal liability and are
entitled to judgment as a matter of law.
In addition, even if Saffo and Stocks could be personally
liable for the acts of the corporation as alleged in the third
party complaint, the claim is barred by the statute of limitations.
To the extent the allegations of the third party complaint can be
construed to allege a trespass by reason of the enlargement of the
ditch, the act occurred, according to the allegation of the thirdparty complaint and the testimony of A.V. Saffo, no later than the
early 1980s. The statute of limitations for trespass is three
years from the date of the original trespass. N.C. Gen. Stat. § 1-
52(3). Though defendant Baker argues that the flooding resulting
from the excavation and diversion of the water is an intermittent
trespass, its assertions are of no avail. Even if we were to
agree, the party charged with liability for trespass must have had
control over the conditions causing the trespass within three years
preceding the injury.
Hooper v. Lumber Co., 215 N.C. 308, 311, 1
S.E.2d 818, 820 (1939) (“in order to repel the bar of the statute
of limitations it must affirmatively appear from the evidence that
these conditions were under control of the defendant, and the
breach of duty with reference thereto had taken place sometime
within the period of three years preceding the injury.”). Summary
judgment in favor of third party defendants Saffo and Stocks is
affirmed.
Trial of plaintiffs' claim against defendant - No Error.
Summary judgment dismissing the third party action -Affirmed.
Judges HUDSON and CAMPBELL concur.
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