An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-16


Filed: 21 January 2003



v .                         Cumberland County
                            No. 99 CVS 8752


    Appeal by defendants from judgment entered 15 June 2001 by Judge Wiley F. Bowen in Cumberland County Superior Court. Heard in the Court of Appeals 19 September 2002.

    Rose, Ray, O'Connor, Manning & McCauley, P.A., by Steven J. O'Connor, for plaintiff appellee.

    Cooper, Davis & Cooper, by William R. Davis, for defendants appellants.

    Timothy Foley, Curtis Powell, Stan Hales, and Walter E. Thomas, Sr., (hereinafter collectively, “defendants”) appeal from a judgment in favor of Jacqualine M. Cox (“plaintiff”). For the reasons set forth herein, we affirm the judgment of the trial court.
    The relevant factual and procedural background is as follows: On 29 June 1995, plaintiff purchased two tracts of real property(“Cox Property”) totaling approximately thirty acres from Marcus Carter (“Carter”). Cox Property is located in Cedar Creek Township, Cumberland County, North Carolina. Plaintiff cleared approximately ten (10) acres on Cox Property and placed a mobile home on the cleared portion. Plaintiff and her husband, Terry Cox (“Terry”), moved onto Cox Property in October 1995. The remaining twenty (20) acres consisted of dense wooded area with several trees and a small creek (“Cedar Creek Stream”). Carter testified that Cedar Creek Stream was a natural stream.
    On 23 December 1995, plaintiff discovered “ditching and timber activity” on the wooded portion of her property, which consisted of a strip of “pushed down” trees and the bed of Cedar Creek Stream had been enlarged. Plaintiff testified that prior to the damage, Cedar Creek Stream was a “couple of feet” wide and a “couple of feet” deep. Plaintiff further testified that after the damage, Cedar Creek Stream was approximately twelve to fifteen feet wide and five to six feet deep. Terry testified that the damage to Cedar Creek Stream caused water from “hard rains” to pond and spread to plaintiff's cleared property.
    Marshall Hartsfield, Jr. (“Hartsfield”), a professional forester, testified that he was hired by plaintiff to assess the damage to her property. According to Hartsfield, the trees were “pushed over,” “plowed [onto] the ground,” or “pulled up” in conjunction with “backhoe” work. Hartsfield further testified that a total of 152 trees were damaged. Two additional expertstestified on plaintiff's behalf and gave substantially the same testimony as Hartsfield.
    On 13 January 1995, Timothy Foley (“Foley”) purchased 225 acres of real property (“Foley Property”) in Cedar Creek Township, Cumberland County, North Carolina. On 27 January 1995, a deed was prepared whereby Foley divided his interest in Foley Property with the three remaining defendants. According to defendants, the land was purchased to harvest timber. In November 1995, defendants hired Christopher Shane Harrelson (“Harrelson”) to perform ditch cleaning services on Foley Property. Harrelson testified that he used a backhoe and cleared the area specified by defendants. Harrelson further testified that defendants “put up flagging” to direct his crew to the area where the ditch cleaning was to take place, and that he did not backhoe beyond the area “flagged” by defendants. According to defendants, they were not aware that Harrelson damaged Cox Property until plaintiff filed a complaint.     Plaintiff filed a complaint on 18 December 1998 and the action was dismissed without prejudice on 2 December 1999. Pursuant to Rule 41(a)(1) of the North Carolina Rules of Civil Procedure, on 20 December 1999, plaintiff filed this action again within one year of the dismissal of the original complaint. Plaintiff's complaint was to recover damages to Cox Property caused by defendants, Delcoy Properties, Inc. (“Delcoy”), and C&P Logging Company, trading as C&P Timber Company (“C&P”). The complaint alleged trespass, continuing trespass, and nuisance. On 1 September 2000, defendants filed a motion for summary judgment. Following a hearing on 22September 2000, an order was entered allowing the motion as to the defendant Delcoy, but denying the motion as to the remaining defendants. In May 2001, this case was tried before a jury. Upon completion of the evidence, defendants moved for directed verdicts and to dismiss plaintiff's claims. The motion of C&P was allowed, but the motions of the remaining defendants were denied.
    The jury subsequently returned a verdict in favor of plaintiff and awarded damages in the amount of $40,000.00 for trespass and $3,000.00 for nuisance. From this judgment, defendants appeal.


    The issues raised by defendants are whether the trial court erred in (1) denying defendants' motion for summary judgment, (2) denying defendants' motion to dismiss and motion for directed verdict; (3) instructing the jury on the statute of limitations; and (4) denying defendants' motions to set aside the verdict and for a new trial. Each assignment of error raised by defendants contends that plaintiff's claims for trespass, continuing trespass, and nuisance are barred by the statute of limitations pursuant to North Carolina General Statutes § 1-52. Therefore, the dispositive issue before this Court is whether plaintiff's claims are barred by the statute of limitations.
    Defendants argue that any damage to plaintiff's property occurred in the month of November 1995. Defendants contend that since plaintiff's lawsuit was not filed within three years from the actual trespass and nuisance by Harrelson, the suit is barred by the statute of limitations. We disagree.
    This Court has held that there is no difference between a cause of action for negligent damage to property and one for negligent injury to person insofar as the time of accrual of the cause of action for commencement of the running of the statute of limitations is concerned. Land v. Pontiac, Inc., 6 N.C. App. 197, 199, 169 S.E.2d 537, 538-39 (1969). “'[W]here bodily injury to the person or a defect in property is an essential element of the cause of action,' the three-year statute of limitations found in [N.C. Gen. Stat. § 1-52] should be utilized.” McCarver v. Blythe, 147 N.C. App. 496, 498, 555 S.E.2d 680, 682 (2001) (quoting Hanover Insurance Co. v. Amana Refrigeration, Inc., 106 N.C. App. 79, 82, 415 S.E.2d 99, 101, disc. review denied, 332 N.C. 344, 421 S.E.2d 147 (1992)). Under North Carolina General Statutes § 1-52(16), a cause of action for personal injury or physical property damage “shall not accrue until bodily harm to the claimant or physical damage to his property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” N.C. Gen. Stat. § 1-52(16) (2001). “The primary purpose of the discovery rule set forth in N.C. Gen. Stat. § 1-52(16) 'is that it is intended to apply to plaintiffs with latent injuries.'” McCarver, 147 N.C. App. at 499, 555 S.E.2d at 682-83 (quoting Robertson v. City of High Point, 129 N.C. App. 88, 91, 497 S.E.2d 300, 302, disc. review denied, 348 N.C. 500, 510 S.E.2d 654 (1998)).    
        In applying the discovery rule, it must be determined when defendant knew or should have known the cause of action accrued. Under common law, [w]hen the right of the party isonce violated, even in ever so small a degree, the injury, in the technical acception of that term, at once springs into existence and the cause of action is complete. G.S. § 1-52(16) modifies [the common law] rule in the case of latent damage only to the extent that it requires discovery of physical damage before a cause of action can accrue. However, [i]t does not change the fact that once some physical damage has been discovered, the [damage or] the injury springs into existence and completes the cause of action.
Id. at 499, 555 S.E.2d at 683 (citations omitted) (alterations in original).
    In Crawford v. Boyette, 121 N.C. App. 67, 464 S.E.2d 301 (1995), cert. denied, 342 N.C. 894, 467 S.E.2d 902 (1996), the Court applied N.C. Gen. Stat. § 1-52(16). In Crawford, plaintiff filed an action in 1992 for nuisance, trespass, and strict liability. The plaintiff alleged that his well water was contaminated with petroleum. The plaintiff contended that the three-year statute of limitations did not accrue until he received official notification by letter dated 6 April 1989 from the State that his well was contaminated with petroleum. The Crawford Court determined the action accrued when the plaintiff's bodily harm became apparent or ought reasonably to have become apparent. Id. at 70, 464 S.E.2d at 303. In so deciding, the Court used the date the plaintiff received “official notification” of contamination as the date the cause of action accrued and thereby concluded that the plaintiff was entitled to the protection of the discovery rule outlined in N.C. Gen. Stat. § 1-52(16). Id. at 72, S.E.2d at 304.
    Similarly, in the case sub judice, plaintiff is entitled to the protection of the discovery rule in N.C. Gen. Stat. § 1-52(16). The evidence tended to show that plaintiff became aware of the property damage on 23 December 1995 when Terry walked the property, noticed several trees were “pushed down,” found that Cedar Creek Stream was not in its natural state, and reported this information to plaintiff. Upon receiving the report from Terry, plaintiff then walked Cox Property and discovered the same damage. Further evidence tended to show that the portion of Cox Property damaged consisted of dense woodlands which was not regularly traveled by plaintiff and which could not be seen from plaintiff's cleared portion of property. Defendants presented no evidence that plaintiff had actual knowledge of the trespass and nuisance damage before 23 December 1995. Defendants presented evidence that the damage to Cox Property occurred in November 1995, but failed to present evidence that plaintiff knew or should have known of the damage before 23 December 1995. By instituting this action within three years of discovering the property damage, plaintiff was not barred by the statute of limitations. Plaintiff was therefore entitled to the protection of the discovery rule outlined in N.C. Gen. Stat. § 1-52(16).
    Additionally, defendants argue that they were entitled to a directed verdict because the evidence tended to show that Harrelson was not defendants' agent or employee. Under section 1A-1, Rule 50(a) of our Rules of Civil Procedure, “a motion for a directed verdict shall state the specific grounds therefor.” N.C. Gen.Stat. § 1A-1, Rule 50(a) (2001). The record reflects that defendants' motion for directed verdict was predicated on the grounds of the statute of limitations and not on agency. Therefore, defendants failed to properly preserve this assignment of error.     
    In light of the foregoing, we decline to address defendants' remaining assignments of error.
    Judge HUDSON concurs.
    Judge CAMPBELL concurred in this opinion prior to 31 December 2002.
    Report per Rule 30(e).

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