Coastal Plains v. NEW HANOVER
| Decision Date | 21 September 2004 |
| Docket Number | No. COA03-525.,COA03-525. |
| Citation | 166 NC App. 333,601 S.E.2d 915 |
| Court | North Carolina Court of Appeals |
| Parties | COASTAL PLAINS UTILITIES, INC., Plaintiff, v. NEW HANOVER COUNTY, New Hanover County Board of Commissioners, in their official capacities; The Town of Carolina Beach, a North Carolina Municipal Corporation; The Town of Kure Beach, a North Carolina Municipal Corporation; T.A. Loving, Inc.; and Atlantic Construction, Defendants. |
Hunton & Williams, by Edward S. Finley, Jr., Raleigh, for plaintiff-appellant.
Womble Carlyle Sandridge & Rice, P.L.L.C., by Mark A. Davis, Douglas W. Hanna and Matthew S. Healey, Raleigh, for defendants-appellees New Hanover County and New Hanover County Board of Commissioners.
J. Albert Clyburn, P.L.L.C., by J. Albert Clyburn, Wilmington, for defendant-appellee The Town of Carolina Beach. Andrew A. Canoutas, Wilmington, for defendant-appellee The Town of Kure Beach.
Taylor, Penry, Rash & Riemann, PLLC, by Neil A. Riemann, Raleigh, for defendant-appellee T.A. Loving, Inc.
No brief filed on behalf of defendant-appellee Atlantic Construction.
This appeal arises from the construction of a new water and sewer system in Carolina Beach and Kure Beach alongside existing water lines owned by plaintiff Coastal Plains Utilities, Inc. ("Coastal"). Coastal appeals from orders granting summary judgment on all claims to defendants New Hanover County and the New Hanover County Board of Commissioners ("the County"), Kure Beach, and Carolina Beach and granting partial summary judgment to defendant T.A. Loving, Inc. ("Loving") on its claims for wrongful interference with easement and nuisance. We hold that the evidence failed to establish a genuine issue of material fact regarding the municipal defendants' direct liability for plaintiff Coastal's damages and failed to demonstrate that the contractors involved in the project were agents of the municipal defendants so as to support liability based on respondeat superior. Coastal also failed to present sufficient evidence to warrant reversing the grant of partial summary judgment to Loving. With respect, however, to Coastal's claim of nuisance asserted against Carolina Beach, we hold that the trial court erred in granting partial summary judgment.
The evidence, viewed in the light most favorable to Coastal, tended to show the following. Since 1966, Coastal has provided water service to customers in the Wilmington Beach and Hanby Beach communities, using a system that was originally constructed in the 1950's. In 2000, the Wilmington Beach area was annexed by the neighboring town of Carolina Beach and the Hanby Beach area was annexed by the neighboring town of Kure Beach.
In 1997, New Hanover County entered into an agreement with the towns of Carolina Beach and Kure Beach, under which the County agreed to fund and construct a new sewer system for the towns. The agreement was amended in 1999 to include a water distribution system to be installed at the same time. Upon completion of the construction, the towns would operate and maintain the water and sewer system, charging a usage fee to repay the debt incurred by the County to fund the project. After the debt was satisfied, the County would convey the system to the towns.
Development of the new water and sewer system began in October 2000. The County contracted with Engineering Systems, P.A. to design the system and develop specifications and construction documents for the project. Once the plans were complete, the County contracted with Loving to construct the portion of the system serving Carolina Beach and with Atlantic Construction ("Atlantic") to construct the portion of the system serving Kure Beach.
Actual construction of the system began in late 2000. The plans and specifications prepared by Engineering Services required the contractors to use the "open trench" method of construction, which involves digging an open trench in which the utility lines are installed. During construction of the new system, the contractors inflicted numerous cuts to Coastal's lines. The damage to the lines disrupted service to Coastal customers. In some instances, the contractors repaired the broken steel lines with plastic PVC pipe, which according to Coastal, undermined the mechanical integrity of its lines.
In addition, Carolina Beach had previously begun using two wells close to Coastal's existing wells. During the same period as the construction, Coastal began to suspect that Carolina Beach's wells were adversely affecting its wells. According to Coastal's expert witness, as a result of the Carolina Beach wells, Coastal was able to draw less water from its wells, resulting in water pressure problems for Coastal's customers.
Responding to complaints from Coastal's customers, the North Carolina Utilities Commission began monitoring Coastal's system in 2000. On 13 July 2001, the Utilities Commission issued an order finding that Coastal had "abandoned its system" and that an emergency existed with respect to Coastal's water system. On 16 July 2001, Superior Court Judge Benjamin Alford appointed Carolina Beach and Kure Beach as emergency operators of Coastal's water system and ordered Coastal to deliver all billing information for its customers to the towns. According to the record before this Court, Coastal has not operated its system since.
On 2 July 2001, Coastal filed a complaint asserting claims for wrongful interference with easement, trespass to chattels, and negligence against the County, Carolina Beach, Kure Beach, Loving, and Atlantic.1 In addition to damages, Coastal sought a temporary restraining order, a preliminary injunction, and a permanent injunction preventing defendants from proceeding with the construction. Also on 2 July 2001, Coastal's request for a temporary restraining order and preliminary injunction was granted with the proviso that construction could continue if defendants complied with certain orders of the court. On 4 January 2002, Coastal filed an amended complaint alleging an additional claim against Carolina Beach for nuisance and an injunction preventing Carolina Beach from operating its wells in an unreasonable manner.
All parties filed motions for summary judgment. The matter was heard during the 4 November 2002 civil session of New Hanover County Superior Court. On 2 December 2002, the trial court granted summary judgment in favor of the County, Kure Beach, and Carolina Beach on all claims and entered partial summary judgment in favor of Loving and Atlantic on the claims of wrongful interference with easement and nuisance. The trial court denied Coastal's motion for partial summary judgment on its claim of wrongful interference with easement. From those orders, Coastal filed notice of appeal to this Court on 7 December 2002. Coastal has since settled its claims against Atlantic. At the time of this appeal, Coastal's claims against Loving for trespass to chattels and negligence are still pending.
At the outset, we must address the motions to dismiss this appeal as interlocutory filed by the County, Carolina Beach, and Kure Beach (collectively, "the municipal defendants"). We agree that the appeal is interlocutory, but hold that the appeal involves a substantial right and is, therefore, properly before us.
When an order resolves some, but not all, of the claims in a lawsuit, any appeal from that order is interlocutory. Mitsubishi Elec. & Elecs. USA, Inc. v. Duke Power Co., 155 N.C.App. 555, 559, 573 S.E.2d 742, 745 (2002). Because claims against Loving are still pending, this appeal is interlocutory. An interlocutory appeal is permissible only if (1) the trial court certified the order under Rule 54 of the Rules of Civil Procedure, or (2) the order affects a substantial right that would be lost without immediate review. Embler v. Embler, 143 N.C.App. 162, 164-65, 545 S.E.2d 259, 261 (2001). Since the orders at issue in this appeal do not contain a Rule 54 certification, we must determine whether the orders affect a substantial right of plaintiff that cannot be preserved in the absence of an interlocutory appeal.
290 S.E.2d at 596. This Court has interpreted the language of Green as creating a two-part test "requiring a party to show that (1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists." North Carolina Dep't of Transp. v. Page, 119 N.C.App. 730, 735-36, 460 S.E.2d 332, 335 (1995).
The municipal defendants argue that there is no danger of inconsistent verdicts here because the Coastal and Loving trial would not involve the same factual issues as any subsequent trial against the municipal defendants. They cite Jarrell v. Coastal Emergency Servs. of the Carolinas, Inc., 121 N.C.App. 198, 464 S.E.2d 720 (1995), in which this Court held that because the first trial would be on liability, while the sole issue for the second trial would be whether a master-servant relationship existed such that the defendant could be held...
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