Whiteside Estates v. Highlands Cove

• Decision Date: 16 October 2001
• Docket Number: No. COA00-1005., No. COA00-1378
• Citation: 146 NC App. 449,553 S.E.2d 431
• Parties: WHITESIDE ESTATES, INC., Plaintiff, v. HIGHLANDS COVE, L.L.C., Defendant.
• Court: North Carolina Court of Appeals

553 S.E.2d 431

146 NC App. 449

WHITESIDE ESTATES, INC., Plaintiff, v. HIGHLANDS COVE, L.L.C., Defendant.

Nos. COA00-1378, COA00-1005.

Court of Appeals of North Carolina.

October 16, 2001.

Roberts & Stevens, P.A., by William Clarke, Asheville, for plaintiff-appellee.

Creighton W. Sossomon, Highlands, and Ogletree, Deakins, Nash, Smoak & Stewart, P.C., by Elizabeth B. Partlow, Columbia, and Keith E. Coltrain, Raleigh, for defendant-appellant. TYSON, Judge.

Highlands Cove, L.L.C. ("defendant") appeals from judgment entered upon the verdict of the jury, the trial court's order denying motion for judgment notwithstanding the verdict and/or new trial, and the trial court's order awarding attorney and expert witness fees. We affirm the judgment and remand for a new trial on damages only, and we affirm the trial court's order awarding fees in part and reverse in part.

At the outset we note that the appeal from the judgment and the trial court's order denying defendant's motion for judgment notwithstanding the verdict and/or new trial, COA00-1378, was filed separate from the appeal of the order awarding attorney and expert witness fees, COA00-1005. These inter-related appeals were consolidated for hearing ex mero motu. See N.C.R.App. P. 40. Both appeals are decided within this opinion.

I. Facts

Defendant purchased approximately 400 acres of real property that adjoins and is upstream from property owned by Whiteside Estates, Inc. ("plaintiff") in March of 1998. Defendant acquired its property to construct residential units and a golf course.

Plaintiff, a corporation whose sole shareholders are O.E. Young, Jr. ("Young"), his wife Mary Lou Young, and their five children, owns approximately 265 acres. Plaintiff's property is directly downstream from defendant's development. In 1957, Young constructed a dam on Grassy Camp Creek ("creek") which ran through the property, forming an eighteen-acre lake known as Young Lake ("lake"). The creek traverses both defendant's and plaintiff's property.

The Land Quality Section of the North Carolina Department of Environment and Natural Resources ("DENR") issued defendant a Sedimentation and Erosion Control permit and approved their plan to develop its property on or about 29 July 1998. Defendant began construction shortly thereafter.

The evidence tended to show that significant rainfall caused sediment from defendant's land-disturbing activities to flow into the creek in October 1998. Plaintiff's lake and creek collected colloidal material after that first rainfall and every subsequent rainfall, impacting the lake water's quality, damaging the creek, and invading plaintiff's use and enjoyment thereof.

The North Carolina Division of Land Resources ("NCDLR") inspected the project almost weekly during defendant's construction, compiling numerous reports. Although no statutory "Notices of Violation" were issued pursuant to G.S. § 113A-61.1, several reports indicated that: (1) defendant's activities utilized "insufficient measures to retain sediment on site," (2) defendant failed "to take reasonable measures," on site during construction, and (3) defendant's site was not in compliance with the Sedimentation Pollution Control Act ("Sedimentation Act").

Plaintiff sought and obtained a temporary restraining order. At the return hearing on the order, plaintiff sought to enjoin defendant's project. The trial court denied the injunction. Plaintiff then filed a complaint seeking damages for nuisance, trespass, and violation of the Sedimentation Act on 31 March 1999. Defendant answered denying all allegations and counterclaimed for abuse of process. At the close of plaintiff's evidence and again at the close of all the evidence, defendant moved for a directed verdict. Both motions were denied. The jury returned a verdict in plaintiff's favor of $500,000.00 on 6 March 2000. The jury's verdict did not segregate the damages between plaintiff's three claims. The trial court entered judgment thereon. Defendant moved for judgment notwithstanding the verdict, or in the alternative, a new trial. The trial court denied the motion on 30 May 2000. Defendant appeals.

Plaintiff's counsel subsequently moved for attorney fees in the amount of $67,246.50, expenses in the amount of $3,500.16, and expert witness fees in the amount of $37,353.13 pursuant to G.S. § 113A-66(c). Copies of counsel's invoices for legal services, an affidavit of William Clarke, plaintiff's counsel, copies of invoices for plaintiff's three expert witnesses, and an affidavit of J. David Young, managing agent for plaintiff, were filed in support of the motion. Plaintiff amended its motion for attorney and expert witness fees by reducing the amount requested for attorney fees by $7,700.00, for work involving the same parties but for another matter, on 8 May 2000. The amendment included a second affidavit of William Clarke setting forth the hourly rates for the legal services rendered, the fact that the hourly rates charged were commensurate with the type of work involved, and are within the range of such fees and charges customarily charged in the community.

On 30 May 2000, the trial court entered an order awarding plaintiff attorney fees in the amount of $58,546.50, less than plaintiff's requested amount, and expert witness fees in the amount of $37,353.13. Defendant appeals.

II. Issues

Defendant assigns the following errors on appeal: (1) the trial court erred in denying defendant's motions for a directed verdict and its motion for judgment notwithstanding the verdict or, alternatively, a new trial because the evidence was insufficient to sustain a judgment on plaintiff's three claims for relief; (2) the trial court erred when it rejected defendant's proposed jury instructions; (3) the jury verdict was excessive and reflected a disregard for the jury instructions and was influenced by passion; (4) the trial court erred by admitting into evidence the testimony of two plaintiff witnesses and certain demonstrative evidence; and (5) the trial court erred in granting plaintiff's attorney and expert witness fees.

III. Sufficiency of the Evidence

A. Nuisance

Defendant argues that plaintiff presented no evidence that it interfered with corporate plaintiff's use and enjoyment of its property.

"To recover in nuisance, plaintiffs must show an unreasonable interference with the use and enjoyment of their property." Jordan v. Foust Oil Co., Inc., 116 N.C.App. 155, 167, 447 S.E.2d 491, 498 (1994) (citation omitted). The interference or invasion which subjects one to liability may be intentional or unintentional. Morgan v. High Penn Oil Co., 238 N.C. 185, 193, 77 S.E.2d 682, 689 (1953).

Unintentional nuisance occurs when defendant's conduct is negligent, reckless, or ultrahazardous. Id. Intentional nuisance, on the other hand, focuses on the unreasonableness of the interference. Watts v. Pama Mfg. Co., 256 N.C. 611, 617, 124 S.E.2d 809, 813 (1962); see also David A. Logan & Wayne A. Logan, North Carolina Torts, § 28.10, at 605 n. 13 (1996) (A private nuisance may be created or maintained without negligence). "A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury." Morgan, 238 N.C. at 194, 77 S.E.2d at 689 (citations omitted); Parker v. Barefoot, 130 N.C.App. 18, 502 S.E.2d 42 (1998), rev. on other grounds, 351 N.C. 40, 519 S.E.2d 315 (1999)(A defendant's use of state-of-the-art technology or the fact that he was not negligent in t he design or construction of his facility are not defenses to a nuisance claim).

An intentional invasion or interference occurs when a person acts with the purpose to invade another's interest in the use and enjoyment of their land, or knows that it will result, or will substantially result. Morgan, 238 N.C. at 194, 77 S.E.2d at 689 (citations omitted).

An intentional invasion or interference, however, is not always unreasonable. Watts, 256 N.C. at 618, 124 S.E.2d at 814. In Watts, our Supreme Court listed factors to be considered in assessing whether an intentional interference is unreasonable:

the surroundings and conditions under which defendant's conduct is maintained, the character of the neighborhood, the nature, utility and social value of defendant's operation, the nature, utility and social value of plaintiffs' use and enjoyment which have been invaded, the suitability of the locality for defendant's operation, the suitability of the locality for the use plaintiffs make of their property, the extent, nature and frequency of the harm to plaintiffs' interest, priority of occupation as between the parties, and other considerations arising upon the evidence. No single factor is decisive; all the circumstances in the particular case must be considered.

Id. (citations omitted); See also Pendergrast v. Aiken 293 N.C. 201, 217, 236 S.E.2d 787, 797 (1977)

.

To be actionable, "[t]he interference must be substantial and unreasonable. Substantial simply means a significant harm to the plaintiff and unreasonably means that it would not be reasonable to permit the defendant to cause such an amount of harm intentionally without compensating for it." W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 88, at 626 (5th ed.1984) (emphasis supplied).

Once plaintiff establishes that the invasion or intrusion is unreasonable, plaintiff must prove the invasion caused substantial injury to its property interest. Watts, 256 N.C. at 619, 124 S.E.2d at 814; Rudd v. Electrolux Corp., 982 F.Supp. 355 (M.D.N.C. 1997) (need to install wells to monitor water quality presented jury question whether defendant's invasion was substantial). "An upper riparian landowner's unreasonable use of water quantity or diminution of its quality permits a lower riparian owner to maintain a civil action in nuisance or trespass to land." Biddix v. Henredon Furniture Industries, Inc., 76...