Cape Fear Pub. Util. Auth. v. Costa, COA09-798.

• Decision Date: 20 July 2010
• Docket Number: No. COA09-798.,COA09-798.
• Citation: 697 S.E.2d 338
• Parties: CAPE FEAR PUBLIC UTILITY AUTHORITY, Plaintiff,v.Jonathan COSTA, Defendant.
• Court: North Carolina Court of Appeals

697 S.E.2d 338

CAPE FEAR PUBLIC UTILITY AUTHORITY, Plaintiff,v.Jonathan COSTA, Defendant.

No. COA09-798.

Court of Appeals of North Carolina.

July 20, 2010.

Appeal by Defendant from Order entered 20 March 2009 by Judge Paul G. Gessner in Superior Court, New Hanover County. Heard in the Court of Appeals 5 November 2009.

Bruce Robinson, Wilmington, for defendant-appellant.

Ward and Smith, P.A., New Bern, by Cheryl A. Marteney, for plaintiff-appellee.

STROUD, Judge.

I. Factual Background and Procedural History

Defendant Jonathan B. Costa (“Costa”) is the owner of certain property in New Hanover County which is designated as “Tract 3” in the deed from James Henry Hobbs, Jr. and Evelyn Hobbs to Costa and his wife, Jessica A. Costa. The Recorded Plat (as shown by the map marked as Plaintiff's Exhibit 1; hereinafter referred to as “the Easement Map”) shows a 30-foot wide sewer easement and a 30-foot wide access and utility easement that run along the northern side of Costa's property. The Easement Map reflects that “all sewer easements are public” and are dedicated for public use.

In November and December 2006, the New Hanover County Water and Sewer District authorized the installation of and installed a sewer line and related sewer system components within the 30-foot sewer easement. On 23 August 2007, Costa brought suit against Coastal Colorado Development, LLC, the developer of a nearby subdivision, and New Hanover County, alleging negligence and seeking declaratory judgment and monetary damages related to the installation of the sewer line and components. On 12 February 2008, Costa voluntarily dismissed, without prejudice, New Hanover County from the Coastal Colorado Development lawsuit. Thereafter, a handwritten document titled “Memo of Judgement” [sic] was filed stating that there was no utility, sewer, or access easement on Costa's property. At the time the “Memo of Judgement” was filed, New Hanover County was no longer a party to the lawsuit. New Hanover County did not receive proper notice of the hearing at which the “Memo of Judgement” was entered, and New Hanover County did not participate in the hearing.

On 1 July 2008, through a merger of the New Hanover County Water and Sewer District, Plaintiff Cape Fear Public Utility Authority (“the Authority”) became the owner of the easement rights over Costa's property. Because of the “Memo of Judgement,” Costa contended that he had the right to remove the Authority's sewer line and sewer system components from the easement over his property. On 12 November 2008, the Authority filed a complaint alleging that a 30-foot wide sewer easement and a 30-foot wide access and utility easement run along the north side of Costa's property. The Authority also sought and was granted a temporary restraining order and preliminary injunction against Costa to prevent him from interfering with the Authority's easements.

In response to the Authority's complaint, Costa filed an answer and counterclaim alleging that he owns the land over which the Authority claims an easement; that the map upon which the Authority is relying does not pertain to his property; and that the Authority is without authority to install sewer lines on Costa's property. Costa counterclaimed for continuing trespass and inverse condemnation.

On 19 February 2009, Costa filed a motion for partial summary judgment alleging that no genuine issue of material fact existed as to whether an easement exists on his property. In support of his motion, Costa submitted affidavits from D. Robert Williams, Jr., a North Carolina real estate attorney, and Arnold Carson, a licensed North Carolina surveyor. In their identical affidavits, Costa's affiants stated that the map under which the Authority claims its easement does not pertain to the Costa property.

In opposition to Costa's motion for partial summary judgment, the Authority filed the affidavit of Mark A. Stocks, the surveyor who performed the original survey at issue in this case, along with copies of the relevant deeds and map. The Authority also filed an objection to the affidavits submitted by Costa because Costa's affidavits were “nothing more than a legal opinion of the legal effect of the map” at issue.

On 20 March 2009, the trial court entered an Order denying Costa's motion for summary judgment, entering summary judgment in favor of the Authority, and striking the affidavits submitted by Costa because these constituted inadmissible “legal conclusions[.]” From this Order, Costa appeals.

II. Discussion

In his sole argument on appeal, Costa contends “that the [trial] court erred in granting summary judgment in favor of the plaintiff because there are genuine issues of material fact with respect to whether the court should have considered the affidavits of Costa's tendered expert witnesses.” We disagree.

Our Court reviews the trial court's ruling on the admissibility of affidavits for an abuse of discretion. Blair Concrete Servs., Inc. v. Van-Allen Steel Co., 152 N.C.App. 215, 219, 566 S.E.2d 766, 768 (2002) (“We review the trial court's ruling on the motion to strike the affidavit for abuse of discretion.”). “Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)).

N.C. R. Evid. 702 permits expert witnesses to testify when such testimony “will assist the trier of fact to understand the evidence or to determine a fact in issue[.]” N.C. R. Evid. 704 provides that “[t]estimony in the form of an opinion or inference is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” However, there are limitations to this principle. The official commentary following Rule 704 provides a helpful example of these limitations:

[T]he question “Did T have capacity to make a will?” would be excluded, while the question, “Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution?” would be allowed.

N.C. R. Evid. 704 (Commentary).

Opinions of experts or other witnesses must not usurp the province of the court and jury by drawing conclusions of law or fact upon which the decision of the case depends, the test being

whether additional light can be thrown on the question under investigation by a person of superior learning, knowledge or skill in the particular subject, one whose opinion as to the inferences to be drawn from the facts observed or assumed is deemed of assistance to the jury under the circumstances.

Patrick v. Treadwell, 222 N.C. 1, 4-5, 21 S.E.2d 818, 821-22 (1942). The intent of the parties to an easement agreement is a question of law for the court. See

Biggers v. Evangelist, 71 N.C.App. 35, 40, 321 S.E.2d 524, 527-28 (1984) (intent of parties to a contract regarding the conveyance of an easement was question of law for the court to decide). Thus, we must decide if Costa's witnesses' testimony was helpful to the trial court or if it decided a question of law which could only be decided by the trial court. For the following reasons, we conclude that the affidavits of Defendant's witnesses usurped the province of the trial court and, accordingly, were incompetent.

In Williams v. Sapp, 83 N.C.App. 116, 349 S.E.2d 304 (1986), this Court held that it was reversible error to permit an attorney appearing as an expert witness to testify that an easement by implication existed under the circumstances of that case. Id. at 120, 349 S.E.2d at 306. The Williams Court explained that:

[Plaintiff's expert's] opinion merely tells the jury the result that they should reach and, therefore, is not helpful to their determination of a fact in issue, as required by G.S. 8C-1, Rules 701 and 702. See, Commentary, G.S. 8C-1, Rule 704. The attorney's testimony regarding his opinion amounts to instructions to the jury on easements by implication. This testimony does not invade the province of the jury, which plaintiff argues is permissible, but invades the province of the court and should not have been admitted. See, Board of Transportation v. Bryant, 59 N.C.App. 256, 296 S.E.2d 814 (1982). This error was clearly prejudicial to defendants, because the jury was required to answer the same question asked of plaintiff's expert witness. We hold, therefore, that defendants are entitled to a new trial on the issue of easement by implication.

Id.

In the present matter, Costa's witnesses made the following pertinent statements in their identical affidavits:

4. ... [T]here is a clearly defined 30 foot sewer easement, 30 foot access and utility easement that pertain to Tracts A, C, D, and E, and a 30 foot sewer easement that pertains to Tracts A, C, D, and E.

5. The James Henry Hobbs, Jr. parcel is an uplands parcel, also known in this case as a remnant parcel, with no tract letter and this parcel is explicitly excluded from the acreage definition of the Map.

6. The solid lines drawn on the map are drawn around Tracts A, B, C, D, and E, but not around the James Henry Hobbs, Jr. tract.

7. This map, by its own definition, is a map that pertains to Tracts A, B, C, D and E, all as shown with setback requirements and total acreage and specifically excludes the remainder tract or remnant tract known as the James Henry Hobbs, Jr. Tract, owned by the plaintiff.

8. My conclusion, based upon my training and experience, examination of the public records, and the documents referred to in the complaint and in this affidavit, is that there is no dedicated easement other than the 15 foot roadway easement on the James Henry Hobbs, Jr. parcel.

Of these statements, the first four are not helpful to the trier of fact, as they merely describe the obvious...