Lakeview Condominium Association v. Village of Pinehurst, No. COA06-1001 (N.C. App. 8/7/2007)
| Decision Date | 07 August 2007 |
| Docket Number | No. COA06-1001,COA06-1001 |
| Court | North Carolina Court of Appeals |
| Parties | LAKEVIEW CONDOMINIUM ASSOCIATION, an unincorporated association; LYNNE GILBERT; ROSEMARY CLEAR; PAM PALLADINO; THOMAS E. ROGERS; and MALLORY HICKEY, in their capacity as the LAKEVIEW CONDOMINIUM ASSOCIATION BOARD OF DIRECTORS; and JOAN FROST, Plaintiff, v. THE VILLAGE OF PINEHURST, a municipal corporation, Defendant. |
Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp, Esq., and Evelyn J. Mackrella, Esq., for plaintiffs-appellees.
Cranfill, Sumner & Hartzog, L.L.P., by Norwood P. Blanchard, III, for defendant-appellant.
Where plaintiff landowner alleged that defendant municipality negligently maintained culverts and drainage pipes in defendant's right-of-way, such that plaintiff's property was damaged, the reasonable use doctrine and the doctrine of riparian rights did not apply. The appropriate measure of damages caused to plaintiff's property was the reasonable cost of repair, not the diminution of the property's value.
Factual Background:
Lake view Condominium Association ("plaintiff"), an association of property owners in Pinehurst, North Carolina, owned a pond adjacent to Lake Pinehurst, into which the storm water from a culvert and a drainage pipe emptied from the right-of-way maintained by the Village of Pinehurst ("defendant"). On two occasions in April 2003, large deposits of sand washed into plaintiff's pond from the culvert and drainage pipes. After the rains in April, plaintiff contacted Roto-Rooter to remove the sand deposit from the pond and the drainage pipe. Roto-Rooter removed seven loads of sand per day for two weeks, at a cost to plaintiff of $16,480.85. In August 2003, plaintiff had Roto-Rooter remove sand from its pond again, at a cost of $9,303.93. Plaintiff alleged that its total cost of repair to the pond, including the bills from Roto-Rooter, was $50,890.53.
On 26 May 2004, plaintiff filed this action against defendant, seeking monetary damages based upon claims of negligence, trespass, and nuisance. The negligence claim asserted that defendant was negligent in its maintenance of the storm water drainage system, causing sand to accumulate in plaintiff's pond.
On 14 November 2005, plaintiff took a voluntary dismissal of its claims for trespass and nuisance.
On 13 January 2006, defendants filed a motion for summary judgment, which was denied on 23 January 2006. The case went to trial before a jury at the 23 January 2006 session of civil Superior Court for Moore County.
On 26 January 2006, the jury returned a verdict finding that defendant was negligent in causing damages to plaintiff, and awarding damages in the amount of $40,000.00. In its judgment, the trial court awarded costs and attorney's fees to plaintiff pursuant to Rule 37 of the Rules of Civil Procedure based upon defendant's refusal to admit certain facts in response to plaintiff's requests for admission. The trial court denied defendant's motions for judgment notwithstanding the verdict, for a new trial, and for attorney's fees based upon alleged discovery violations by plaintiff.
From the judgment and the two orders entered by the trial court, defendant appeals.
I: Directed Verdict and Judgment Notwithstanding the Verdict
In its first argument, defendant contends that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdict. We disagree.
"A motion for directed verdict tests the legal sufficiency of the evidence to go to the jury[.]" Munie v. Tangle Oaks Corp., 109 N.C. App. 336, 341, 427 S.E.2d 149, 152 (1993) (citing Goodwin v. Investors Life Insurance Co. of North America, 332 N.C. 326, 329, 419 S.E.2d 766, 767 (1992)). "A motion for judgment notwithstanding the verdict is essentially a renewal of an earlier motion for a directed verdict[,]" and the standards of review are the same. Drain v. United Services Life Ins. Co., 85 N.C. App.174, 176, 354 S.E.2d 269, 272 (1987) (citing Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974)). A motion for directed verdict and for judgment notwithstanding the verdict "should be granted only where the evidence, construed in the light most favorable to plaintiff, is insufficient to support a verdict for the plaintiff." Maintenance Equipment Co. v. Godley Builders, 107 N.C. App. 343, 348, 420 S.E.2d 199, 201-02 (1992). "In ruling on the motion the judge must consider the evidence in the light most favorable to the non-moving party and give him the benefit of every reasonable inference to be drawn in his favor." Id.
The standard is high for the moving party as the motion should be denied if there is more than a scintilla of evidence to support the plaintiff's prima facie case. . . . The evidence supporting the plaintiff's claims must be taken as true, and all contradictions, conflicts, and inconsistencies must be resolved in the plaintiff's favor, giving the plaintiff the benefit of every reasonable inference.
Alexander v. Alexander, 152 N.C. App. 169, 170-71, 567 S.E.2d 211, 213 (2002) (quotation omitted). Because the judgment notwithstanding the verdict is essentially a renewal of the motion for directed verdict, we need only review the court's ruling as to defendant's motion for judgment notwithstanding the verdict. Zubaidi v. Earl L. Pickett Enters., Inc., 164 N.C. App. 107, 119, 595 S.E.2d 190, 197 (2004).
In the instant case, defendant's written motion for judgment notwithstanding the verdict asserted the following:
1. The Village cannot be held responsible for any storm drainage problems (including sedimentation) originating outside of its property. The Village is only required to refrain from unreasonably altering or augmenting the flow of surface water running across its property, and is not required to prevent or remedy any defective or harmful conditions (including sedimentation) existing on land which it did not possess or control.
2. Plaintiffs cannot recover for damages or repairs to any easement or other property which they do not own.
3. Diminution of value, not repair cost, is the proper measure of damages. Plaintiffs failed to offer any evidence of diminution of value. (R248)
In addition to these three assertions in defendant's motion, defendant makes additional arguments on appeal. Defendant cannot create new grounds for his motion on appeal, having "failed to raise [the] issue[s] before the trial court[.]" Crist v. Crist, 145 N.C. App. 418, 423, 550 S.E.2d 260, 264 (2001). Therefore, we review the merits of defendant's motion as to the three contentions raised in defendant's motion for judgment notwithstanding the verdict before the trial court.
III: Negligence
In its first argument, defendant contends that plaintiff's negligence claim must fail because plaintiff did not show any duty that was breached by defendant. We disagree.
Defendant cites White Estates, Inc., v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431 (2001), and Huberth v. Holly, 120 N.C. App. 348, 462 S.E.2d 239 (1995), to specifically contend that no duty existed because the sedimentation "originat[ed] outside of [defendant's] property." Defendant argues that it can be held liable "only if the defendant's acts or omissions caused sediment to be in the water, not merely because sediment-laden water flowed through the defendant's property." (emphasis added) We disagree, and find that the cases cited by defendant are not applicable to the instant case.
"The first prerequisite for recovery of damages for injury by negligence is the existence of a legal duty, owed by the defendant to the plaintiff, to use due care." Meyer v. McCarley & Co., 288 N.C. 62, 68, 215 S.E.2d 583, 587 (1975). Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 68, 376 S.E.2d 425, 428 (1989).
The duty of care with regard to private property owners as to damage caused by surface water is governed by the reasonable use doctrine, as set forth in Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977):
Each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface water is altered thereby and causes some harm to others, but liability is incurred when his harmful interference with
the flow of surface waters is unreasonable and causes substantial damage.
Id. at 216, 236 S.E.2d at 796.
The Court in Pendergrast further stated:
Analytically, a cause of action for unreasonable interference with the flow of surface water causing substantial damage is a private nuisance action, with liability arising where the conduct of the landowner making the alterations in the flow of surface water is either (1) intentional and unreasonable or (2) negligent, reckless or in the course of an abnormally dangerous activity.
The North Carolina Supreme Court and this Court have limited the application of Pendergrast. See Board of Transportation v. Warehouse Corp., 300 N.C. 700, 268 S.E.2d 180 (1980); Woodward v. Cloer, 68 N.C. App. 331, 334, 315 S.E.2d 335, 338 (1984). In Warehouse Corp., the Court held that the doctrine of reasonable use was inapplicable in an eminent domain action, reasoning that:
Pendergrast . . . was a dispute between private landowners[.] . . . In the instant case, however, the interference with the drainage of surface waters is attributed not to a private landowner but to an entity possessing the power to appropriate private property for public use. Where the interference with surface waters is effected by such an entity, the principle of...
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