Asheville Sports Prop. v. City of Asheville

• Decision Date: 01 September 2009
• Docket Number: No. COA08-1085.,COA08-1085.
• Citation: 683 S.E.2d 217
• Parties: ASHEVILLE SPORTS PROPERTIES, LLC, and Asheville Sports, Inc., also d/b/a Ski Country Sports, Plaintiffs, v. The CITY OF ASHEVILLE, Defendant.
• Court: North Carolina Court of Appeals

683 S.E.2d 217

ASHEVILLE SPORTS PROPERTIES, LLC, and Asheville Sports, Inc., also d/b/a Ski Country Sports, Plaintiffs, v. The CITY OF ASHEVILLE, Defendant.

No. COA08-1085.

Court of Appeals of North Carolina.

September 1, 2009.

Appeal by plaintiffs from order entered 30 June 2008 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 12 February 2009.

Roberts & Stevens, P.A., by Mark C. Kurdys and Ann-Patton Nelson Hornthal, Asheville, for plaintiffs-appellants.

Barbour Law Firm, PLLC, by Frederick S. Barbour; and Assistant City Attorney Martha Walker-McGlohon, for defendant-appellee.

GEER, Judge.

Plaintiffs Asheville Sports Properties, LLC ("ASP") and Asheville Sports, Inc. ("Asheville Sports") appeal the trial court's grant of summary judgment to defendant, the City of Asheville. Two sinkholes developed on plaintiffs' property as a result of the failure of storm water drainage pipes running under plaintiffs' parking lot. Plaintiffs first contend that the City should be liable for the damage because it failed to maintain and repair the pipes. Plaintiffs have, however, failed to establish that the City had a duty to do so with respect to these privately installed and owned storm water drainage pipes. Although plaintiffs alternatively argue that the City should be held liable for having directed an unreasonable volume of water through the private pipes, plaintiffs have failed to present any evidence as to causation with respect to that theory. Because we also find plaintiffs' remaining arguments unpersuasive, we hold that the trial court properly granted summary judgment to the City, and we affirm.

Facts

ASP owns the real property and building located at 1000 Merrimon Avenue in Asheville, North Carolina. ASP leases a portion of the building to Asheville Sports for the operation of Ski Country Sports, a business that sells specialty outdoor equipment and apparel. A storm water drainage system consisting of a series of corrugated metal pipes, each 54 inches in diameter, is buried under the parking lot of the property. The pipes were installed in approximately 1978 by one of the property's previous owners. At the boundaries of the property, the pipes are connected to other storm water drainage pipes that run along Merrimon Avenue, Osborne Road, Lakeshore Drive, Beaverdam Road, and the surrounding areas in Asheville.

On 30 May 2006, a large sinkhole, caused by the collapse of a portion of the pipes underneath plaintiffs' property, formed on the parking lot of the property. When the City refused to repair the damage, plaintiffs paid $94,000.00 to replace 30 or 40 feet of the pipes and to repair the parking lot. On 27 July 2007, another sinkhole formed on the property when a portion of the pipes further downstream failed. After the City again refused to perform the repairs, plaintiffs paid roughly $124,000.00 to have the pipes and property repaired.

On 22 August 2007, plaintiffs filed a verified complaint against the City, asserting three causes of action: (1) negligence, (2) nuisance, and (3) inverse condemnation. Plaintiffs requested a temporary restraining order, a preliminary injunction, and monetary damages. On 12 September 2007, the trial court denied plaintiffs' motion for a temporary restraining order and preliminary injunction. On 20 November 2007, plaintiffs filed an unverified amended complaint in which they withdrew their claims for nuisance and inverse condemnation, leaving only their negligence claim remaining.

On 22 April 2008, the City moved for summary judgment, and on 12 June 2008, plaintiffs filed a cross-motion for partial summary judgment. On 30 June 2008, the trial court entered an order denying plaintiffs' motion for partial summary judgment and granting the City's motion for summary judgment, finding that "there is no genuine issue of material fact and Defendant City is entitled to judgment in its favor as a matter of law." Plaintiffs timely appealed to this Court.

Discussion

This Court reviews the trial court's grant of summary judgment de novo. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004). 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.R. Civ. P. 56(c).

We first make some observations regarding the evidentiary support cited by plaintiffs in their main brief and reply brief. As the Supreme Court explained in Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976), "[t]he purpose of Rule 56 is to prevent unnecessary trials when there are no genuine issues of fact and to identify and separate such issues if they are present." Therefore, Rule 56 "requires the party opposing a motion for summary judgment—notwithstanding a general denial in his pleadings—to show that he has, or will have, evidence sufficient to raise an issue of fact." Id. Thus, "the opposing party may not rest on the mere allegations or denials of his pleading." Gillis v. Whitley's Discount Auto Sales, Inc., 70 N.C.App. 270, 274, 319 S.E.2d 661, 664 (1984). Rather, "the opposing party must set forth specific facts showing that there is a genuine issue for trial, either by affidavits or as otherwise provided in G.S. § 1A-1, Rule 56. . . ." Id.

On many key points in plaintiffs' briefs, instead of citing to evidence, they rely exclusively on citations to their unverified amended complaint. "[T]he trial court may not consider an unverified pleading when ruling on a motion for summary judgment." Allen R. Tew, P.A. v. Brown, 135 N.C.App. 763, 767, 522 S.E.2d 127, 130 (1999), disc. review improvidently allowed, 352 N.C. 145, 531 S.E.2d 213 (2000). See also Hill v. Hill, 11 N.C.App. 1, 10, 180 S.E.2d 424, 430 ("An unverified complaint is not an affidavit or other evidence."), cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971).

We acknowledge that some, but not all, of the amended complaint paragraphs cited in the briefs are repeated in the original verified complaint. "A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein." Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972). Plaintiffs' initial complaint was verified by Craig W. Friedrich, who was identified in the verification as the manager of ASP.

With respect to the allegations relied upon by plaintiffs, the verified complaint does not demonstrate that Mr. Friedrich had personal knowledge of the facts contained in those allegations or that he is competent to testify to those facts. Indeed, some of the paragraphs are asserted "upon information and belief." Our appellate courts have, however, "repeatedly held that statements made `upon information and belief'—or comparable language —`do not comply with the "personal knowledge" requirement. . . .'" Currituck Assocs.—Residential P'ship v. Hollowell, 170 N.C.App. 399, 404, 612 S.E.2d 386, 389 (quoting Hylton v. Koontz, 138 N.C.App. 629, 634, 532 S.E.2d 252, 256 (2000), disc. review denied, 353 N.C. 373, 546 S.E.2d 603 (2001)).

Plaintiffs have also cited to their own response to a request for production of documents. As that response is unsworn, it does not fall within the scope of materials permitted to be considered under Rule 56. See Dixon v. Hill, 174 N.C.App. 252, 262, 620 S.E.2d 715, 721 (2005) (holding defendant's denials in unverified response to plaintiffs' request for admissions could not be considered in summary judgment), disc. review denied, 360 N.C. 289, 627 S.E.2d 619, cert. denied, 548 U.S. 906, 126 S.Ct. 2972, 165 L.Ed.2d 954 (2006).

Finally, plaintiffs have, in other instances, simply made factual assertions with no citations to the record at all. Those assertions in an appellate brief, without evidentiary support, cannot support a reversal of summary judgment. See Morrison-Tiffin v. Hampton, 117 N.C.App. 494, 505, 451 S.E.2d 650, 658 ("An adequately supported motion for summary judgment by the defendant triggers the plaintiff's responsibility to produce facts, as distinguished from allegations, sufficient to show that he will be able to prove his claim at trial. In the present case, plaintiffs rely on mere conjecture and have shown no facts sufficient to support their allegations of a common agreement and objective. Accordingly, the trial court properly entered summary judgment for defendants." (internal citation omitted)), appeal dismissed and disc. review denied, 339 N.C. 739, 454 S.E.2d 654 (1995).

In reviewing the trial court's summary judgment order in this case, we have disregarded those materials cited by plaintiffs that may not properly be considered in connection with a motion for summary judgment. We now address each of plaintiffs' contentions regarding the merits of their claims.

I

Plaintiffs first argue that the trial court erred in granting the City's motion for summary judgment because the City "had an affirmative duty to exercise reasonable care to inspect, maintain, and repair the storm drain pipes buried under plaintiff's [sic] property. . . ." Plaintiffs contend that, even though the pipes were constructed by private parties and are located on their private property, the City adopted the pipes by using them "as integral components of [its] municipal storm water runoff control and drainage system," and the City is, therefore, responsible for their upkeep.

In Johnson v. City of Winston-Salem, 239 N.C. 697, 707, 81 S.E.2d 153, 160 (1954), our Supreme Court held that

a municipality becomes responsible for maintenance, and liable for injuries resulting from a want of due care in respect to upkeep, of drains and culverts constructed by third persons when, and only...