NO. COA02-493
Appeal by defendant from order and judgment entered 18 January
2002 by Judge Laurie L. Hutchins in Forsyth County District Court.
Heard in the Court of Appeals 29 January 2003.
Hunter, Elam, Benjamin & Tomlin, by Jason A. Knight, for
plaintiff-appellee.
Hatfield, Mountcastle, Deal, Van Zandt & Mann, LLP, by Marc
Hunter Eppley, for defendant-appellant.
MARTIN, Judge.
Plaintiff filed a complaint in this action alleging that it
purchased a townhouse on a parcel of real property located in the
Heather Hills subdivision in September 1999. At that time, and
since 1974, defendant was the owner of all common areas in the
subdivision. Plaintiff alleged that as early as July 1997,
defendant was aware that water from the common areas flowed into
the basements of various townhouses in the subdivision, including
the townhouse eventually purchased by plaintiff. Following
plaintiff's purchase of the property, an inspection revealed
standing water and flood damage inside the townhouse allegedly
caused by the flow of water from the subdivision's common areas.
An attorney for plaintiff notified defendant of the flood problems
in October 1999. Following a meeting of defendant's members,defendant informed plaintiff it would not pay for any repairs or
prevention related to the flood problems. As a result, plaintiff
paid $2,480 for waterproofing to remedy the problem.
Plaintiff asserted claims for trespass to real property and
for private nuisance. The complaint alleged plaintiff was the
owner of the property, that defendant voluntarily caused water from
the common areas of the subdivision to flow onto plaintiff's
property, and that plaintiff sustained damages as a result. The
complaint also alleged that defendant “substantially interfered
with [plaintiff's] use and enjoyment of its property by causing
water to flow into the property which resulted in flooding or
caused a significant annoyance, material physical discomfort and
injury to the property” and that defendant's interference was
unreasonable and resulted in damage to plaintiff.
Defendant answered and moved to dismiss the complaint for
failure to state a claim upon which relief could be granted.
Following arbitration resulting in an award in favor of defendant,
plaintiff appealed to the district court for a trial de novo. The
trial court heard the matter sitting without a jury. The trial
court entered judgment in which it found that defendant owned and
was responsible for maintenance and upkeep of the subdivision
common areas; that water flowed downhill from the common areas and
damaged plaintiff's property; that in 1996, defendant employed a
contractor in an attempt to remedy the water flow problem by
installing a new drainage system adjacent to plaintiff's property;
that the new system in fact exacerbated the water flow problem andactually caused water to flow onto plaintiff's property and through
the sliding glass doors; that plaintiff did not authorize defendant
to cause the water to flow onto its property; and that defendant
substantially interfered with plaintiff's enjoyment of the property
by failing to stop the water from flowing from the common areas
onto plaintiff's property. The trial court awarded plaintiff
damages in the amount of $2,480.00. Defendant appeals.
_________________
Defendant's first assignment of error is to the denial of its
G.S. § 1A-1, Rule 12(b)(6) motion to dismiss the complaint for its
failure to state a claim upon which relief can be granted.
However, it is well established that the denial of a Rule 12(b)(6)
motion to dismiss is not reviewable upon an appeal from a final
judgment on the merits.
Berrier v. Thrift, 107 N.C. App. 356, 359,
420 S.E.2d 206, 208 (1992) (
citing
Concrete Service Corp. v.
Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755,
cert.
denied, 317 N.C. 333, 346 S.E.2d 137 (1986)),
disc. review denied,
333 N.C. 254, 424 S.E.2d 918 (1993). Thus, the assignment of error
is dismissed.
Defendant's second assignment of error is to the trial court's
finding of fact that defendant “substantially interfered with
Plaintiff's use and enjoyment of the property by failing to stop
the water to flow into the property from the common areas into
Plaintiff's townhouse.” Defendant asserts this finding is
unfounded, as “nothing in the pleadings or the facts before the
trial court showed that Defendant interfered with Plaintiff atall.”
When a trial court sits as the finder of fact, its findings of
fact are conclusive on appeal where supported by competent
evidence, even where the evidence would support a finding to the
contrary.
Creekside Apartments v. Poteat, 116 N.C. App. 26, 446
S.E.2d 826,
disc. review denied, 338 N.C. 308, 451 S.E.2d 632
(1994).
In order to establish a claim for nuisance, a plaintiff must
show the existence of a substantial and unreasonable interference
with the use and enjoyment of its property.
Whiteside Estates,
Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431
(2001),
disc. review denied, 356 N.C. 315, 571 S.E.2d 220 (2002).
In this context, our Supreme Court has interpreted substantial
interference to mean a “substantial annoyance, some material
physical discomfort . . . or injury to [the plaintiff's] health or
property.”
Duffy v. Meadows, 131 N.C. 31, 34, 42 S.E. 460, __
(1902). The pattern jury instruction for private nuisance
instructs that “[i]nterference is substantial when it results in
significant annoyance, material physical discomfort or injury to a
person's health or property. A slight inconvenience or a petty
annoyance is not a substantial interference.” N.C.P.I. Civil
805.25. Moreover, one's action in interfering with the flow of
water resulting in damage to another's property can constitute a
private nuisance.
See Pendergrast v. Aiken, 293 N.C. 201, 236
S.E.2d 787 (1977).
In the present case, the parties stipulated that defendantowned and was responsible for the common areas within the
subdivision, that water flowed from those areas onto plaintiff's
property, that defendant exacerbated the water flow onto
plaintiff's property beginning in 1996 when it undertook to repair
the problem, and that this flow of water damaged plaintiff's
property. These stipulations are sufficient to support the trial
court's finding that the circumstances gave rise to more than a
slight inconvenience or petty annoyance to plaintiff and that
defendant substantially interfered with plaintiff's use and
enjoyment of its property.
Defendant next argues the trial court's findings were
insufficient to support its conclusion of law that defendant
“caused the entry of water from the common areas and the drainage
system into the property.” However, as noted previously, defendant
stipulated, and the trial court found, that defendant undertook to
repair the water flow problem, but that its repairs, which included
the installation of a drainage system adjacent to plaintiff's
property, only exacerbated the problem. These findings support the
trial court's conclusion of law that defendant's actions not only
failed to address the water flow problem, but actually contributed
to the flow of water onto plaintiff's property. This assignment of
error is overruled.
In support of its fourth assignment of error, defendant argues
there were insufficient findings of fact to support the trial
court's conclusion of law that defendant's actions amounted to a
trespass.
In order to establish a trespass to real property, aplaintiff must show: (1) his possession of the property at the time
the trespass was committed; (2) an unauthorized entry by the
defendant; and (3) resulting damage to the plaintiff.
Ammons v.
Wysong & Miles Co., 110 N.C. App. 739, 745, 431 S.E.2d 524, 528,
disc. review denied, 334 N.C. 619, 435 S.E.2d 332 (1993). One's
action of causing water to flow onto another's property can
constitute such a trespass.
See,
e.g.,
Wilson v. McLeod Oil Co.
Inc., 327 N.C. 491, 398 S.E.2d 586 (1990),
reh'g denied, 328 N.C.
336, 402 S.E.2d 844 (1991).
The trial court found that defendant's action in attempting to
remedy the water flow problem in 1996 actually exacerbated the flow
of water onto plaintiff's property from the common areas, that this
problem continued after plaintiff's purchase of the property, that
defendant did not stop the flow of water onto plaintiff's property,
that plaintiff did not authorize defendant to cause water to flow
onto its property, and that plaintiff spent $2,480 to remedy the
problem. These findings are supported by competent evidence and
are sufficient to establish each necessary element of a claim for
trespass.
Moreover, even though defendant's initial exacerbation of the
water flow onto plaintiff's property was alleged to have occurred
prior to plaintiff's ownership of the property, because the nature
of the water flow was recurrent, every subsequent incidence of
water flowing onto the property after plaintiff's possession could
constitute a trespass in and of itself.
See Ivester v.
Winston-Salem, 215 N.C. 1, 1 S.E.2d 88 (1939) (causes of actionexist for all consequential and successive damages for a recurring
injury resulting from a condition wrongfully created and
maintained, such as a recurrent nuisance or trespass);
Roberts v.
Baldwin, 151 N.C. 407, 66 S.E. 346 (1909) (water flowing from
defendant's land onto plaintiff's land constitutes recurring
trespass, as opposed to continuing trespass, because although the
condition which allows for the water to flow onto plaintiff's
property exists continuously, the actual flow of water is irregular
and variable in frequency of occurrence depending upon rainfall and
other factors). Accordingly, this assignment of error is
overruled.