NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
DONALD W. BAKER, NANCY O. BAKER,
MICHAEL W. BEASLEY, TONYA H.
BEASLEY, DAVID LEONARD CHURCHILL,
TIMOTHY WAYNE CHURCHILL, WILLIAM
J. DAUBENMIER, CLAUDE GERALD DIXON,
JEAN B. DIXON, EUGENE F. FLOYD,
ROSE P. FLOYD, ALETHEA M. GIVENS,
DOROTHY UTLEY HACKNEY, LESTER R.
HAMILTON, MARIE C. HAMILTON, JAMES
R. HUDSON, DEBORAH H. HUDSON,
WILLIAM R. JOHNSON, MICHELLE R.
JOHNSON, STEWARD A. JONES, JR.,
GLOIS M. JONES, DINA L. KENNEDY,
JAMES M. LOWE, HELEN B. LOWE,
CHRISTOPHER M. MCGARRAH, KENNETH
LEE OLIVE, BONNIE B. SMITH, ROBERT
LOUIS TROTTER AND MARILYN J.
v. No. 03 CVS 04951
CENTEX REAL ESTATE CORPORATION
d/b/a CENTEX-CROSLAND HOMES, CENTEX
HOMES, A NEVADA GENERAL
PARTNERSHIP AND EAST COAST
DRILLING AND BLASTING, INC.,
Appeal by plaintiffs from judgments entered 25 July 2005 and
24 January 2006 by Judge Orlando F. Hudson, Jr. in Durham County
Superior Court. Heard in the Court of Appeals 19 February 2007.
Robert B. Jervis, P.C., by Robert B. Jervis and Arthur D.
Begun, for plaintiffs-appellants.
Young, Moore & Henderson, P.A., by Jay P. Tobin, for
MARTIN, Chief Judge.
The twenty-nine plaintiffs named above brought this action on
10 October 2003 alleging claims against Centex Real Estate
Corporation d/b/a Centex-Crossland Homes; Centex Homes, a Nevada
General Partnership; and East Coast Drilling and Blasting, Inc.
(defendants) for damages to their residences. Defendants filed
answers denying liability and asserting defenses including, inter
alia, that some or all of plaintiffs' claims were barred by the
three-year statute of limitations.
After conducting discovery, defendants moved for summary
judgment. Briefly summarized as applicable to this appeal, the
materials before the trial court showed that plaintiffs Robert
Louis Trotter, Marilyn J. Trotter, James R. Hudson, Deborah H.
Hudson, James M. Lowe, Helen B. Lowe, David Leonard Churchill and
Timothy Wayne Churchill live in Durham County near a residential
subdivision known as Magnolia Place, which, in August 2000, was
being developed by defendant Centex-Crossland. Defendant Centex-
Crossland hired defendant East Coast Drilling and Blasting, Inc. to
clear the site, including blasting to remove rock and other
materials on the site. Blasting occurred at Magnolia Place between
24 August 2000 and 15 May 2001. Plaintiffs alleged that the
blasting damaged plaintiffs' homes and related structures. The
most noticeable of the blasts occurred on 11 September 2000. In
response to this particular blast, the Lowes and Mr. Trotter
contacted the City of Durham Fire Department, which investigated.
Mr. Trotter also spoke with the Hudsons and the Churchills about
the blast and the resulting damages. Mr. Trotter receivedcorrespondence from the Fire Marshal on 23 October 2000 informing
him that the blasting was occurring with a permit and was in
compliance with the city's regulations. The blasting continued
into 2001 with all plaintiffs discovering damages in and around
their homes as time progressed.
By order filed 25 July 2006, the trial court granted partial
summary judgment in favor of all defendants dismissing all of the
claims of plaintiffs Robert Louis Trotter and Marilyn J. Trotter;
James R. Hudson and Deborah H. Hudson; James M. Lowe and Helen B.
Lowe; David Leonard Churchill; and Timothy Wayne Churchill; and
dismissing the claims of plaintiffs Donald W. Baker and Nancy O.
Baker; Michael W. Beasley and Tonya H. Beasley; Claude Gerald Dixon
and Jean B. Dixon; Eugene F. Floyd and Rose P. Floyd; and Steward
A. Jones, Jr. (now deceased) and Glois M. Jones, against defendant
Centex Homes. The award of summary judgment against plaintiffs
Trotter, Hudson, Churchill, and Lowe was entered as a final
judgment pursuant to N.C.G.S. § 1A-1, Rule 54(b).
Within ten days after entry of judgment, plaintiffs Trotter,
Hudson, Churchill, and Lowe filed a Motion To Amend Judgment
alleging that the order entered by the court was entered as a
result of error in law and should be set aside pursuant to N.C.G.S.
[§] 1A-1, Rule 59(a)(8). By order filed 24 January 2006, the
motion was denied. Plaintiffs Trotter, Hudson, Churchill and Lowe
appeal from the order granting defendants partial summary judgment
and denying their motion to amend the judgment.
Defendants argue that plaintiffs' appeal should be dismissed
for their violation of the North Carolina Rules of Appellate
Procedure in two respects. First, defendants contend that
plaintiffs failed to file a timely notice of appeal. See
App. P. 3(c) (2005) (requiring an appeal from a judgment or order
in a civil action to be taken within thirty days of its entry with
limited exceptions). Specifically, defendants contend that
plaintiffs' motion pursuant to N.C.G.S. § 1A-1, Rule 59(a)(8) was
not a proper motion and did not toll the statute of limitations.
The trial court granted defendants' motion for summary
judgment on 25 July 2005. On 3 August 2005, plaintiffs filed a
motion pursuant to N.C.G.S. § 1A-1, Rule 59(a)(8), to amend
If a party makes a timely motion for relief under Rule
59, the 30-day period for taking appeal is tolled as to all
parties until entry of an order disposing of the motion[.] N.C.R.
App. P. 3(c)(3). The trial court denied plaintiffs' motion on 24
January 2006. Plaintiffs filed a notice of appeal on 23 February
Defendants argue that Rule 59(a)(8) motions apply to errors in
law occurring at trial
and that this motion was not an appropriate
basis for relief from the entry of summary judgment. See
Stat. § 1A-1, Rule 59(a)(8) (granting a new trial when the movant
shows an [e]rror in law occurring at the trial and objected to by
the party making the motion.) The period for appeal is not tolled
when a party makes a motion which it is not entitled to file.
Middleton v. Middleton
, 98 N.C. App. 217, 221, 390 S.E.2d 453, 455(1990). Since plaintiffs' Rule 59(a)(8) motion alleged only that
the order granting summary judgment was erroneous, it stated no
proper ground for relief and was insufficient to toll the thirty
day period for taking an appeal. Plaintiffs' appeal was,
Anticipating our holding that their appeal was untimely,
plaintiffs have also filed a petition for writ of certiorari.
writ of certiorari may be issued in appropriate circumstances by
either appellate court to permit review of the judgments and orders
of trial tribunals when the right to prosecute an appeal has been
lost by failure to take timely action[.] N.C.R. App. P. 21(a)(1)
(2005). In our discretion, we conclude this case is an appropriate
one in which to issue the writ. We choose to allow plaintiffs'
petition for writ of certiorari pursuant to N.C.R. App. P. 21 and
address the merits of their arguments. See State v. McCoy
N.C. App. 636, 638, 615 S.E.2d 319, 320-21 (2005).
Defendants also argue that the assignments of error raised by
plaintiffs violate N.C.R. App. P. 10(c)(1) by either failing to
address a single issue of law or failing to state an appropriate
legal basis upon which error is assigned. This Court has held that
assignments of error related to summary judgment will be heard on
the merits despite technical deficiencies where those deficiencies
do not prevent a review of the issues. Nelson v. Hartford
Underwriters Ins. Co.
, __ N.C. App. __, __, 630 S.E.2d 221, 226-28
(2006) (reviewing a summary judgment order despite an absence of
exceptions or specific assignments of error where the sole questionargued in brief related to the trial court's order granting summary
judgment). An appeal from an order granting summary judgment
raises only the issues of whether, on the face of the record, there
is any genuine issue of material fact, and whether the prevailing
party is entitled to a judgment as a matter of law. Id
. at __,
630 S.E.2d at 226 (quoting Smith-Price v. Charter Behavioral Health
., 164 N.C. App. 349, 353, 595 S.E.2d 778, 782 (2004)). As a
result, a notice of appeal related to a summary judgment order
adequately apprises the opposing party and the appellate court of
the limited issues to be reviewed. Id
. at __, 630 S.E.2d at 227
(quoting Ellis v. Williams
, 319 N.C. 413, 415, 355 S.E.2d 479, 481
(1987)). In the present case, any of the alleged deficiencies in
plaintiffs' assignments of error do not prevent our review of
whether genuine issues of material fact exist.
Turning to the merits of this appeal, plaintiffs contend that
the trial court committed reversible error in granting summary
judgment in favor of defendants as to all of their claims. We
review the grant of summary judgment de novo
. Falk Integrated
Tech., Inc. v. Stack
, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574
(1999). Summary judgment is appropriate only when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). Defendants premised their motion for summary judgment on the
ground that the appealing plaintiffs filed their action outside
the applicable statute of limitations. When dealing with actions
for trespass upon real property, if the trespass is a continuing
one, the action shall be commenced within three years from the
original trespass, and not thereafter. N.C. Gen. Stat. § 1-52(3)
(2005). The cause of action does not accrue until physical damage
to [the claimant's] property becomes apparent or ought reasonably
to have become apparent to the claimant, whichever event first
occurs. N.C. Gen. Stat. § 1-52(16). Plaintiffs argue the blasts
should be considered intermittent rather than continuing for
purposes of assessing the statute of limitations. We agree.
A continuing trespass is a trespass to real property caused
by structures permanent in their nature or where a wrongful act,
being entire and complete, causes continuing damage. Oakley v.
, 236 N.C. 751, 753, 73 S.E.2d 898, 899 (1953). The term
continuing trespass was never intended to apply when every
successive act amounted to a distinct and separate renewal of the
. Such successive acts are more accurately termed
intermittent trespasses. If damages are caused by an
intermittent trespass, a plaintiff may recover for any damages
within three years before the action is filed. Galloway v. Pace
, 62 N.C. App. 213, 214, 302 S.E.2d 472, 473 (1983). We
believe that blasting is an intermittent trespass and should be
treated as such when assessing whether a party complied with the
statute of limitations. See Hanna v. Brady
, 73 N.C. App. 521, 526,327 S.E.2d 22, 24 (1985) (treating blasts as distinct and separate
acts in a challenge to evidence of blasts occurring earlier than
three years before the complaint's filing).
The evidence before the trial court gives rise to genuine
issues as to the severity of blasting occurring within three years
of the complaint's filing and the resulting damages. Robert and
Marilyn Trotter noticed vertical cracks on both sides of their home
caused by the 11 September 2000 blast. Mr. Trotter claimed that
the damage got worse as defendants continued to do the blasting
into 2001 and that each blast created problems. Ms. Trotter was
unsure whether damage in her basement happened on September 11th
or at a later date.
James and Deborah Hudson were at home for the 11 September
2000 blast. Mr. Hudson indicated that the blasts continued for
another 30 or 60 days maybe. In what he believed to be 2001, Mr.
Hudson noticed sheetrock damage in a corner of his garage and two
or three months later he discovered damage in a different area in
the garage. In addition, Mr. Hudson did not notice cracks in his
pool until it was uncovered in the summer of 2001.
Helen and James Lowe also experienced damages from blasts
occurring within three years of the complaint's filing. Helen Lowe
indicated that the blasts were felt beyond September 2000 and into
the following year. As for damages, she made the following
responses during her deposition:
Q: Let's start say October the 15th
forward. Did you observe and discover
additional damage that occurred after that
A: Oh, yes, sir. Through that winter and into
the spring we were continually finding one
thing or the other.
Q: The spring of 2001?
A: And even later. It seemed like through
that summer every time somebody came to take
pictures or check something, something else
would be found[.]
David and Timothy Churchill are brothers prosecuting the
lawsuit on behalf of their deceased parents, Troy and Mae
Churchill. To the best of Timothy Churchill's recollection, the
blasting continued over a six month period after the 11 September
2000 blast. Timothy Churchill stated in his deposition that
significant blasting damage to the home was not discovered until
after his father died, in June 2001.
In this case, we hold genuine issues of material fact exist as
to whether the appealing plaintiffs sustained damage resulting from
the defendants' blasting activities occurring after 10 October
2000. As a result, summary judgment dismissing plaintiffs' claims
for any such damages was error and must be reversed. This cause is
remanded to the trial court for such further proceedings as may be
Reversed and remanded.
Judges HUNTER and STROUD concur.
Report per Rule 30(e).
*** Converted from WordPerfect ***