An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-961

NORTH CAROLINA COURT OF APPEALS

Filed: 17 May 2005

LARRY G. JOHNSON and wife,
NANCY T. JOHNSON,
    Plaintiffs

v .                         Harnett County
                            No. 04 CVS 00111
HARNETT COUNTY PLANNING
BOARD and HARNETT COUNTY,
a body politic,
    Defendants

    Appeal by plaintiffs from judgment entered 24 May 2004 by Judge Frank Floyd in Harnett County Superior Court. Heard in the Court of Appeals 2 February 2005.

    Law Office of L. Holt Felmet, by L. Holt Felmet and Law Office of James M. Johnson, by James M. Johnson, for plaintiffs- appellants.

    Womble, Carlyle, Sandridge & Rice, by Mark A. Davis, for defendants-appellees.

    CALABRIA, Judge.

    Larry G. Johnson and Nancy T. Johnson (“plaintiffs”) appeal the dismissal of their claim against the Harnett County Planning Board and Harnett County (collectively the “county”) for legal expenses, engineering fees, costs, and other expenses incurred in a separate lawsuit against James R. Brafford, Brenda C. Brafford, and Mildred Jeffries (the “developers”). We affirm.
    In July 1999, the developers applied to the county for a permit to develop a manufactured home park on property adjoining plaintiffs' farmland. The Harnett County Manufactured Home ParkOrdinance (the “ordinance”) stated that, prior to permit approval, a developer must submit to the county an application including, inter alia, a site plan showing “water courses” and “[t]he existing and proposed utility system for surface water drainage . . . .” Although the developers' application failed to include site plans showing water courses and drainage systems, on 14 July 1999, the county approved the developers' permit. On 18 August 1999, plaintiffs filed a petition for judicial review of the county's decision. Within days, the developers began developing the manufactured home park.
    On or about 23 August 1999, large volumes of surface water drainage from the developers' property began collecting on plaintiffs' crops, fields, and farm roads. On 30 September 1999, plaintiffs petitioned for an injunction against the developers to prevent further development pending installation of a surface water drainage system. They also filed a complaint against the developers seeking compensatory damages. On 29 August 2001, a judgment was entered against the developers enjoining them from further development pending installation of a drainage system and awarding plaintiffs $3,500.00 in compensatory damages.
    Approximately three and one-half months after the judgment against the developers, the trial court entered an order in plaintiffs' petition for judicial review of the county's decision to issue a permit to the developers. The trial court found the county's approval of the developers' permit was in error and ordered the county to require the developers to submit a site planshowing water courses and drainage systems to be installed on their property.
    On 21 January 2004, plaintiffs filed the instant complaint against the county alleging negligent enforcement of the ordinance and seeking damages for legal expenses, engineering fees, costs, and other expenses incurred in pursuing their claim against the developers. On 24 May 2004, the trial court granted the county's motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief might be granted. Plaintiffs appeal.
    In ruling upon a motion to dismiss made pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2003), the trial court must determine “whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.” Miller v. Nationwide Mut. Ins. Co., 112 N.C. App. 295, 300, 435 S.E.2d 537, 541 (1993). “The trial court may grant this motion if 'there is a want of law to support a claim of the sort made, an absence of facts sufficient to make a good claim, or the disclosure of some fact which will necessarily defeat the claim.'” Cline v. McCullen, 148 N.C. App. 147, 149, 557 S.E.2d 588, 590 (2001) (quoting Garvin v. City of Fayetteville, 102 N.C. App. 121, 123, 401 S.E.2d 133, 135 (1991)).
    Plaintiffs argue their complaint against the county was timely filed and therefore not subject to dismissal for violation of the applicable statute of limitations. Pursuant to N.C. Gen. Stat. § 1-52(16) (2003), a three-year statute of limitations applies to anaction for damage to a claimant's property. The limitations period begins to run after accrual of the action, which occurs when the “physical damage to [the claimant's] property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs.” Id. “[W]here plaintiffs clearly know more than three years prior to bringing suit about damages, yet take no legal action until the statute of limitations has run, the fact that further damage is caused does not bring about a new cause of action.” Robertson v. City of High Point, 129 N.C. App. 88, 91, 497 S.E.2d 300, 302 (1998).
    Plaintiffs' complaint disclosed the following: (1) the negligent act serving as the basis for their claim occurred on 14 July 1999 when the county approved the developers' permit; (2) on or about 23 August 1999, plaintiffs were aware of damage to their farmland due to development on the developers' property; and (3) on 18 August 1999, plaintiffs petitioned for judicial review of the county's decision. Therefore, the face of plaintiffs' complaint revealed that their cause of action against the county accrued on or about 23 August 1999; on that date, they became aware of the damage to their farmland and were aware that the county's decision to approve the developers' permit contributed to the damage, as evidenced by their earlier petition for judicial review of that decision.
    Under the applicable three-year statute of limitations, plaintiffs had until 23 August 2002 to file a complaint against the county for damage to their farmland. However, plaintiffs did notfile the instant complaint until 21 January 2004, approximately one year and five months after the expiration of the statute of limitations. Therefore, even assuming arguendo plaintiffs could recover from the county litigation expenses incurred in their lawsuit against the developers, the statute of limitations period had run for any claim of property damage they may have had against the county. Accordingly, the trial court did not err in granting the county's motion to dismiss because plaintiffs' complaint disclosed facts showing the complaint had not been filed within the applicable three-year statute of limitations.
    Nonetheless, based on Duke University v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36 (1989), plaintiffs contend a cause of action against the county for litigation expenses did not accrue until 29 August 2001, when judgment was entered against the developers and their litigation expenses were fully realized. In Duke, an insurer breached its duty under an insurance policy to pay for the university's defense in a lawsuit apparently covered by the policy. Id., 95 N.C. App. at 671-72, 384 S.E.2d at 42. After considering whether the university's claim against the insurer for legal expenses was barred by the applicable three-year statute of limitations, this Court held the insurer's “duty to defend under the liability policy [was] a continuing obligation[,]” and a new cause of action accrued with “[e]ach legal expenditure incurred [by the insured] as a result of the insurer's refusal to defend . . . .” Id. Therefore, the university could recover legal expenses incurred due to the insurer's breach beginning on the date threeyears prior to the university's filing of its complaint forward. Id., 95 N.C. App. at 672, 384 S.E.2d at 42.
    
In essence, plaintiffs contend that, similar to the insurance company in Duke, the county had a continuing liability to them with respect to litigation expenses. Therefore, a new cause of action against the county accrued when their litigation expenses became due after entry of judgment in their suit against the developers. Contrary to plaintiffs' contention, however, unlike the insurance company in Duke, the county had no contractual obligation to pay the litigation expenses incurred by plaintiffs in their suit against the developers. Accordingly, plaintiffs' reliance on Duke is misplaced, and any damage alleged by plaintiffs that occurred after 23 August 1999 did not bring about a new cause of action.
    For the foregoing reasons, we hold the trial court did not err in dismissing plaintiffs' complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6). Having so held, we need not address plaintiffs' remaining arguments.
    Affirmed.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

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