Kochilla v. Mattamy Carolina Corp.
| Decision Date | 15 March 2022 |
| Docket Number | COA21-410 |
| Citation | 2022 NCCOA 180 |
| Court | North Carolina Court of Appeals |
| Parties | JOHN R. KOCHILLA, HELEN BISHOP ALLISON TRUST, KELKE FAMILY TRUST Stephen Michael Kelke and Ruth Anna Kelke, Trustees, Plaintiffs, v. MATTAMY CAROLINA CORPORATION and MATTAMY CAROLINA BUILDING CORPORATION, Defendants. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
Heard in the Court of Appeals 12 January 2022.
Appeal by Plaintiffs from orders entered 11 September 2020 and 22 March 2021 by Judge Lisa C. Bell in Mecklenburg County Superior Court, No. 19 CVS 21763.
Vann Law Firm, P.A., by Christopher M. Vann, for plaintiffs-appellants.
Offit Kurman, P.A., by Amy P. Hunt & Robert B. McNeill, for defendants-appellees.
¶ 1 When a party brings an action for a violation of the Sedimentation Pollution Control Act ("SPCA"), it must allege in the pleadings that the defendant has been cited for a violation of a law, rule, ordinance, order, or erosion and sedimentation control plan. If the pleadings do not contain this allegation, then the party does not have standing to bring the claim. However, when a claim is dismissed for a lack of standing, it must be dismissed without prejudice.
¶ 2 Here, Plaintiffs did not have standing to bring a claim for a violation of the SPCA because they did not allege in their pleadings that Defendants were cited by the City of Charlotte for a violation of the City's Soil Erosion and Sedimentation Control Ordinance. This claim must be dismissed, but without prejudice.
¶ 3 Under South Carolina law, an action for civil trespass must allege the trespass was intentional. As Plaintiffs did not allege in their pleadings that Defendants' alleged trespass was intentional, dismissing Plaintiffs' trespass claim was proper.
¶ 4 Additionally, under South Carolina law, a nuisance must be continuous over a period of time in order to be actionable. As the alleged nuisance here was "a single isolated occurrence or act," the trial court did not err by granting summary judgment on Plaintiffs' nuisance claim in favor of Defendants.
¶ 5 Further, a trial court does not abuse its discretion when it denies a motion to strike an affidavit if the movant does not argue they were prejudiced by the consideration of the affidavit. Here, because Plaintiffs did not argue they were prejudiced, the trial court did not abuse its discretion in denying the motion to strike the affidavit.
¶ 6 Finally, the trial court lacked jurisdiction to enter one of the orders at issue in this case. The order entered after Plaintiffs gave notice of appeal is void for lack of jurisdiction and must be vacated.
¶ 7 Plaintiffs-Appellants John R. Kochilla, the Helen Bishop Allison Trust, and the Kelke Family Trust each own houses in Fort Mill, South Carolina on a cove of Lake Wylie, which is owned by Duke Energy. In 2017, Defendants-Appellees Mattamy Carolina Corporation and Mattamy Carolina Building Corporation[1] were constructing a housing development near Lake Wylie in Charlotte, North Carolina. Defendants were required to have a plan in place to manage stormwater, and this plan involved the construction of certain retention points that collect stormwater and allow sediment to settle into the pond. This retention pond is referred to as a best management practice ("BMP") to contain sediment and debris from stormwater runoff.
¶ 8 On 20 August 2017, the retention pond's dam failed causing water, sediment, and debris to run off into the cove of Lake Wylie, though nothing crossed onto Plaintiffs' properties. As a result, on 22 August 2017, Defendants were cited by the City of Charlotte for a violation of the City's Soil Erosion and Sedimentation Control Ordinance. Defendants were assessed a civil penalty of $68, 000.00 by the City of Charlotte on 9 November 2017.
¶ 9 Plaintiffs commenced this lawsuit against Defendants on 12 November 2019, seeking redress for alleged injuries caused by sedimentation pollution from the retention pond's dam failure. Plaintiffs' Complaint asserted claims for violation of the SPCA, trespass, and nuisance. According to Plaintiffs, the sediment and debris has turned the bottom of the cove into muck such that they and their families can no longer swim in the cove. Plaintiffs also claim boating has become difficult because of the shallowing caused by the debris buildup that had made the water by the docks unnavigable. Specifically, one of the Plaintiffs does not use his jet ski since the dam failure because he does not want the muck in the cove to destroy the motor or impeller. To support their claims, Plaintiffs offered the opinion of Dr Brad Johnson, a professor of environmental studies at Davidson College. Plaintiffs also retained Robert Wilson of Rowboat Dock and Dredge as an expert on their damages, who estimated that his company could dredge the cove to remove the sediment for $200, 290.00-the cost of removing 4, 250 cubic feet of material from the cove to provide eight-and-a-half feet of depth, restoring the original pond elevation.
¶ 10 Defendants filed a motion to dismiss and answer on 17 January 2020. Defendants also filed a motion for judgment on the pleadings on 28 January 2020. In an order entered 11 September 2020 ("September 2020 Order"), the trial court granted in part and denied in part Defendants' motion for judgment on the pleadings. The trial court dismissed Plaintiffs' claims for violation of the SPCA and trespass with prejudice; it denied the motion with respect to the nuisance claim.
¶ 11 Defendants subsequently filed a motion for summary judgment and a supporting affidavit from Mike McElroy as to Plaintiffs' nuisance claim on 21 January 2021. Plaintiffs filed a Motion to Strike Affidavit of Mike McElroy on 19 February 2021, arguing Defendants failed to identify McElroy as an individual with knowledge of the facts and circumstances of this case. On 26 February 2021, Plaintiffs filed a Motion to Amend Complaint to add claims for interference with littoral rights and public nuisance. Plaintiffs also filed a Motion for Relief Pursuant to Rule 60, arguing they were entitled under Rule 60 of the North Carolina Rules of Civil Procedure to pursue a claim for the damages they have sustained under the SPCA.
¶ 12 On 22 March 2021, the trial court entered an order denying Plaintiffs' Motion to Strike Affidavit of Mike McElroy ("Affidavit Order") and a separate Order Granting Defendants' Motion for Summary Judgment ("Summary Judgment Order"). On 20 April 2021, Plaintiffs filed a Notice of Appeal, appealing from the September 2020 Order, the Affidavit Order and the Summary Judgment Order. On 3 June 2021, the trial court entered an order ("June 2021 Order") denying Plaintiffs' Motion for Relief Pursuant to Rule 60 and Motion to Amend Complaint. Plaintiffs filed another Notice of Appeal on 14 June 2021, appealing from the June 2021 Order.
¶ 13 Plaintiffs argue that (A) the trial court erred by granting Defendants' motion for judgment on the pleadings with respect to the claims for violation of the SPCA and trespass; (B) the trial court erred by granting summary judgment as to the nuisance claim; (C) the trial court erred by refusing to strike the affidavit of Mike McElroy; and (D) the June 2021 Order is void for lack of jurisdiction.
¶ 14 As a preliminary matter, we note that Defendants argue because Plaintiffs do not own the cove, they do not have property rights in the cove and therefore their trespass and nuisance claims must fail. We do not address whether Plaintiffs have the right to the use and enjoyment of the cove because, assuming, arguendo, they do have those rights, their claims fail under South Carolina law for the reasons set forth below.
¶ 15 Pursuant to Rule 12(c) of our Rules of Civil Procedure, "[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings." N.C. G.S. § 1A-1, Rule 12(c) (2021). "The movant is held to a strict standard and must show that no material issue of facts exists and that he is clearly entitled to judgment." Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). "The function of Rule 12(c) is to dispose of baseless claims or defenses when the formal pleadings reveal their lack of merit." Benigno v. Sumner Constr., Inc., 278 N.C.App. 1, 2021-NCCOA-265, ¶ 8 (citations omitted).
¶ 16 "We consider whether [P]laintiffs asserted the claim in their complaint with sufficient specificity to withstand judgment on the pleadings, and review the trial court's order granting a motion for judgment on the pleadings de novo." Newman v. Stepp, 267 N.C.App. 232, 234, 833 S.E.2d 353, 356 (2019) (marks and citations omitted), aff'd, 376 N.C. 300, 852 S.E.2d 104 (2020). In considering a motion for judgment on the pleadings, "[t]he trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party." Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499. "All well pleaded factual allegations in the nonmoving party's pleadings are taken as true and all contravening assertions in the movant's pleadings are taken as false." Id. "When the pleadings do not resolve all the factual issues, judgment on the pleadings is generally inappropriate." Id.
1. Violation of the SPCA
¶ 17 Plaintiffs argue that the trial court erred by partially granting Defendants' motion for judgment on the pleadings and thereby dismissing the claim for violation of the SPCA because they "pled all of the elements of a...
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