IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-941
Filed: 2 April 2019
Wake County, No. 17 CVD 6088
DENNIS T. BROWN and RAQUEL HERNANDEZ, Plaintiffs,
v.
LATTIMORE LIVING TRUST dated August 3, 2011, by and through its Trustees,
WILLIAM TIMOTHY LATTIMORE and PAX MILLER LATTIMORE; and
PROLAND DEVELOPMENT, INC., Defendants.
Appeal by plaintiffs from order entered 16 May 2018 by Judge Ned W.
Mangum in Wake County District Court. Heard in the Court of Appeals
13 March 2019.
Harris & Hilton, P.A., by Nelson G. Harris, for plaintiff-appellants.
Burns, Day & Presnell, P.A., by James J. Mills, for defendant-appellees.
ARROWOOD, Judge.
Dennis T. Brown (“Brown”) and Raquel Hernandez (“Hernandez”) (together
“plaintiffs”) appeal from order granting summary judgment in favor of the Lattimore
Living Trust (the “trust”), trustees William Timothy Lattimore and Pax Miller
Lattimore (the “trustees”), and Proland Development, Inc. (“Proland”) (together
“defendants”). For the following reasons, we affirm in part and reverse in part.
I. Background
BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
Plaintiffs initiated this action against defendants with the filing of a summons
and a complaint in Wake County District Court on 17 May 2017. The complaint
alleged that plaintiffs and the trust own adjacent property along Eton Road in
Raleigh. Beginning in 2013, the trust made improvements to its property, “including
installation of a brick wall and a metal fence along the property line separating the
[properties].” Proland was hired by the trustees as the contractor for the wall.
Plaintiffs alleged that during the installation of the brick wall, Proland came onto
and damaged their property, and then failed to restore their property to its original
condition as was agreed upon. Plaintiffs further alleged that the metal fence crosses
a drainage ditch and, during heavy rains, causes debris to accumulate in the ditch
and divert water, causing erosion on plaintiffs’ property. Based on these allegations,
plaintiffs asserted claims against defendants for (1) trespass, (2) breach of contract,
and (3) nuisance.
After Proland filed its initial response on 12 June 2017 denying the material
allegations, on 7 July 2017, plaintiffs filed a motion for summary judgment as to
Proland with an attached affidavit of Brown. Proland filed an amended answer on
20 July 2017, in which it asserted various affirmative defenses. The trust and the
trustees filed an answer with affirmative defenses and counterclaims on
27 July 2017. On 14 August 2017, Proland’s president filed an affidavit.
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Opinion of the Court
Plaintiffs’ motion for summary judgment was set to be heard on
17 August 2017; but when no one appeared for the hearing, the trial court dismissed
the motion without prejudice. Later that afternoon, plaintiffs filed a withdrawal of
their motion for summary judgment as to Proland, which appears to have been signed
two days prior. Plaintiffs subsequently filed a response to the trust’s counterclaims
on 25 August 2017.
On 20 March 2018, defendants filed a motion for summary judgment asserting
that summary judgment was proper because “(a) [p]laintiffs’ claims are barred, as a
matter of law, by the applicable statutes of limitations, and/or (b) there is no genuine
issue of material fact as to [p]laintiffs’ claims and [d]efendants are entitled to
summary judgment as a matter of law.” A second affidavit of Brown was filed with
exhibits on 7 May 2018 and defendants filed plaintiffs’ depositions for the trial court’s
consideration.
Defendants’ motion for summary judgment was heard in Wake County District
Court before the Honorable Ned W. Mangum on 10 May 2018. On 16 May 2018, the
trial court entered an order granting defendants’ motion for summary judgment.
Defendants then filed a notice of voluntary dismissal dismissing their counterclaims
against plaintiffs without prejudice on 27 June 2018. Plaintiffs filed notice of appeal
from the 16 May 2018 summary judgment order on 16 July 2018.
II. Discussion
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
On appeal, plaintiffs contend the trial court erred by entering summary
judgment on each of their three claims: trespass, breach of contract, and nuisance.
“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, 524, 649 S.E.2d 382, 385 (2007)).
“When considering a motion for summary judgment, the trial judge must view
the presented evidence in a light most favorable to the nonmoving party. Moreover,
the party moving for summary judgment bears the burden of establishing the lack of
any triable issue.” Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001)
(citations omitted). The moving party may meet that burden by showing “either that
(1) an essential element of the non-movant’s claim is nonexistent; (2) the non-movant
is unable to produce evidence which supports an essential element of its claim; or, (3)
the non-movant cannot overcome affirmative defenses raised in contravention of its
claims.” Anderson v. Demolition Dynamics, Inc., 136 N.C. App. 603, 605, 525 S.E.2d
471, 472, disc. review denied, 352 N.C. 356, 544 S.E.2d 546 (2000).
Ordinarily, the question of whether a cause of action is
barred by the statute of limitations is a mixed question of
law and fact. However, when the bar is properly pleaded
and the facts are admitted or are not in conflict, the
question of whether the action is barred becomes one of
law, and summary judgment is appropriate. Further,
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
when the party moving for summary judgment pleads the
statute of limitations, the burden is then placed upon the
[non-movant] to offer a forecast of evidence showing that
the action was instituted within the permissible period
after the accrual of the cause of action.
Pharmaresearch Corp. v. Mash, 163 N.C. App. 419, 424, 594 S.E.2d 148, 151-52
(quotation marks and citations omitted), disc. review denied, 358 N.C. 733, 601 S.E.2d
858 (2004).
1. Trespass
Plaintiffs first take issue with the trial court’s grant of summary judgment on
their trespass claim. Plaintiffs’ trespass claim sought $1,100.00 from defendants,
jointly and severally, for damages to plaintiffs’ property resulting from Proland’s
alleged entry onto, and grading of plaintiffs’ property to facilitate installation of the
wall without plaintiffs’ consent.
Plaintiffs contend that the evidence, viewed in the light most favorable to
them, is sufficient to support a claim for trespass. However, plaintiffs acknowledge
that N.C. Gen. Stat. § 1-52(3) provides a three year statute of limitations for trespass
running from the original trespass, and plaintiffs admit in their brief that “Proland’s
initial trespass occurred no later than April 25, 2014, which is more than three (3)
years prior to May 17, 2017 (the date [p]laintiffs filed the [c]omplaint commencing
this action).” [Brief 11] In fact, Brown’s own deposition testimony was that Proland
first came onto his property without permission in August 2013. Brown further
testified that Proland last came onto his property without permission in
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
February 2014; but then contradicted himself by stating Proland returned to dump
dirt at a later time that he was unable to specify.
Despite conceding the complaint was filed more than three years after the
original trespass, plaintiffs argue the statute of limitations was tolled to a later date
because Proland promised to repair the damage caused by the trespass, began
restoration work, and continued to promise additional restoration work until
2 June 2014. Thus, because the complaint was filed within three years of 2 June 2014
on 12 May 2017, plaintiffs contend the complaint was timely. Plaintiffs, however,
acknowledge that they cannot find a case to support their tolling argument. Plaintiffs
instead simply assert “there is no case saying that such tolling is not appropriate; and
there are cases with respect to other claims where promises to perform, and partial
performance, have been held to toll the applicable statute of limitations.”
We are not persuaded the tolling of the statutes of limitations for other types
of claims applies to the tolling of the statute of limitations for a continuing trespass.
We also could not find any case providing for the tolling of the limitations period for
trespass. Instead, we are guided by the plain language of the statute, which provides
a three year statute of limitations for trespass upon real property and explicitly
states, “[w]hen the trespass is a continuing one, the action shall be commenced within
three years from the original trespass, not thereafter.” N.C. Gen. Stat. § 1-52(3)
(2017).
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
Because plaintiffs’ trespass claim was filed more than three years after
Proland’s first unauthorized entry and grading of plaintiffs’ property, the trespass
claim was time barred. Consequently, the trial court did not err in granting summary
judgment in favor of defendants on plaintiffs’ trespass claim.
2. Breach of Contract
Plaintiffs also challenge the trial court’s entry of summary judgment on count
two for breach of contract. Plaintiffs presented their breach of contract claim for
$1,100.00 in damages in the alternative to their trespass claim. Plaintiffs specifically
alleged that “[they] permitted Proland to finish their work [on the wall] on the
promise to repair [their property]; Proland breached their promise; and [p]laintiffs
are entitled to recover damages for Proland’s breach of contract.”
Although not explicitly alleged in the complaint, plaintiffs now clearly assert
that a contract was formed when they allowed Proland to continue its work on the
wall from their property in exchange for Proland’s promise to restore their property
after completion of the wall. Plaintiffs acknowledge that the contract did not specify
a date for the completion of Proland’s restorative work, but rely on International
Minerals & Metals Corp. v. Weinstein, 236 N.C. 558, 561, 73 S.E.2d 472, 474 (1952),
for the proposition that the law requires performance of an obligation within a
reasonable time in the absence of a specified time.
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
Plaintiffs’ argument on appeal is that there is sufficient evidence, when viewed
in the light most favorable to them, that “Proland breached its contractual obligations
by failing to restore [their property] within a reasonable amount of time, and by never
proposing a scope of work that would, in fact, have restored [their property].”
Like with their trespass claim, plaintiffs acknowledge that their breach of
contract claim is limited by a three year statute of limitations provided in N.C. Gen.
Stat. § 1-52(1). Plaintiffs, however, again contend the time to bring the claim did not
begin to run until 2 June 2014, when they determined a reasonable amount of time
had ended. Specifically, plaintiffs argue “the reasonable time for Proland to perform
its contractual obligations ended on June 2, 2014; the date that Plaintiffs determined
that a reasonable amount of time had passed; and that Proland had breached its
contractual obligations.” Based on their determination that a reasonable amount of
time expired for Proland’s performance on 2 June 2014, plaintiffs contend that the
complaint filed on 17 May 2017 was timely. However, even if the breach occurred
prior to 2 June 2017, plaintiffs contend the statute of limitations was tolled because
Proland continued to promise restorative work.
This Court has made clear that, pursuant to N.C. Gen. Stat. § 1-52(1), “[t]he
statute of limitations for a breach of contract action is three years. The claim accrues
at the time of notice of the breach.” Henlajon, Inc. v. Branch Highways, Inc., 149 N.C.
App. 329, 335, 560 S.E.2d 598, 603 (2002); see also Harrold v. Dowd, 149 N.C. App.
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
777, 781, 561 S.E.2d 914, 918 (2002) (“The statute of limitations for a breach of
contract claim begins to run on the date the promise is broken.”). The question here
is when the breach occurred to commence the running of the statute of limitations.
We are not persuaded by plaintiffs’ assertion that they are entitled to
determine what constitutes a reasonable amount of time and thereby independently
determine when a breach of contract occurs. If the issue came down to
reasonableness, it would be an issue of fact that precludes summary judgment.
However, email correspondence between plaintiffs and Proland entered into evidence
in this case shows that the breach occurred at an earlier time.
That email correspondence shows that Proland had begun, and continued
restoration efforts to appease plaintiffs. However, an email from 24 April 2014 shows
that plaintiffs were pondering legal action if Proland did not return their property to
its original condition; and Proland’s response shows that it was unable to return the
property to its original condition. Specifically, plaintiffs wrote to Proland, in
pertinent part, as follows:
Do you intend to comply with our demand that our property
be restored to its original contours.. [Sic] It seems clear
that when you took this job that you knew you would have
to remove part of our property to build the brick wall on the
property line . . . . You made no attempt to discuss this
with us or to try to make an arrangement with us that
would have been acceptable to us. You just did it. We need
to know your intent to determine if we need to take legal
action.
Proland responded, in pertinent part, as follows:
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
After we took the large tree down at the front corner of the
property, you and I met at the site and I explained how I
wanted to slope the severe cut back to make it look right
but I didn’t want to grade your property without your
consent. You were in agreement at that time. . . . I am not
sure what you mean by original condition because I can’t
replant the 60ft. tree that we removed. Even though the
tree was on [the trust’s property], the root ball of the tree
was what disturbed your property when the tree was
removed.
Even though the email correspondence shows that Proland intended to
continue restoration efforts until plaintiffs wrote them on 2 June 2014, “[d]on’t bother
we have hired a landscaper and we will take care of it[,]” it is clear from the email
exchange on 24 April 2014 that Proland was not able to meet plaintiffs’ demands.
The breach of any agreement for Proland to restore the property to the original
condition occurred at that time, and it is from that day, 24 April 2014, that the statute
of limitations began to run. Accordingly, the claim for breach of contract in the
complaint filed on 17 May 2017, more than three years after the cause of action
accrued, was not timely. Therefore, the trial court did not err by entering summary
judgment in favor of defendants on the breach of contract claim.
3. Nuisance
In plaintiffs’ final claim for nuisance, plaintiffs alleged that the metal fence
installed on the property line causes debris to accumulate and obstructs the flow of
water in a drainage ditch that runs across the properties, resulting in unwanted
erosion on plaintiffs’ property. Plaintiffs further alleged that the accumulation of
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
debris and redirection of the water “causes an unreasonable interference with [their]
enjoyment and use of their property[.]” Plaintiffs sought damages or, alternatively,
an injunction requiring the trust to move the fence.
Plaintiffs now contend summary judgment on the nuisance claim was improper
because, when the facts are construed in their favor, genuine issues of material fact
exist. Defendants simply respond that there are no material issues of fact.1 We agree
with plaintiffs that material issues of fact preclude summary judgment on this claim.
Our Supreme Court addressed the required showing for a nuisance claim
brought by a private property owner against an adjacent private property owner who
improperly diverted surface waters onto the plaintiff’s property causing damage in
Pendergrast v. Aiken, 293 N.C. 201, 236 S.E.2d 787 (1977). In that case, the Court
adopted “the rule of reasonable use with respect to surface water drainage” and
expressed the rule as follows: “[e]ach 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
1 Although our courts have held the statute of limitations for nuisance is the same as for
trespass under N.C. Gen. Stat. § 1-52(3), see James v. Clark, 118 N.C. App. 178, 184, 454 S.E.2d 826,
830, disc. review denied, 340 N.C. 359, 458 S.E.2d 187 (1995), our courts have also long held that the
diversion onto, or the pooling of water onto another’s property is a recurring or renewing trespass, as
opposed to a continuing trespass; therefore, the three year statute of limitations does not begin to run
from the initial trespass. See Id. at 184-85, 454 S.E.2d at 830-31; Roberts v. Baldwin, 151 N.C. 407,
66 S.E. 346 (1909); Duval v. Atlantic Coast Line R. Co., 161 N.C. 448, 77 S.E. 311 (1913); Whitfield v.
Winslow, 48 N.C. App. 206, 268 S.E.2d 245, disc. rev denied, 301 N.C. 405, 273 S.E.2d 451 (1980),
Wilson v. McLeod Oil Co., 327 N.C. 491, 398 S.E.2d 586 (1990), reh’g denied, 328 N.C. 336, 402 S.E.2d
844 (1991). Thus, there is no statute of limitations argument with respect to the nuisance claim in
this case based on the recurring trespass alleged in the complaint.
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
interference with the flow of surface waters is unreasonable and causes substantial
damage.” Id. at 216, 236 S.E.2d at 796. The Court further explained the rule in
Board of Transp. v. Terminal Warehouse Corp., 300 N.C. 700, 268 S.E.2d 180 (1980):
the doctrine of reasonable use adopted in Pendergrast
defines the extent to which a private landowner may
interfere with the flow of surface water on the property of
another. This doctrine presupposes that all private
landowners must accept a reasonable amount of
interference with the flow of surface water by other private
landowners if a fair and economical allocation of water
resources is to be achieved. The conclusion reached in
Pendergrast is that a rule of reasonable use with respect to
water rights is the best way to promote the orderly
utilization of water resources by private landowners.
Id. at 705, 268 S.E.2d at 184.
In addition to announcing the reasonable use rule, the Court in Pendergrast
described the inquiry that must be made, explaining that
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.
....
Regardless of the category into which the defendant’s
actions fall, the reasonable use rule explicitly, as in the
case of intentional acts, or implicitly, as in the case of
negligent acts, requires a finding that the conduct of the
defendant was unreasonable. This is the essential inquiry
in any nuisance action.
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Opinion of the Court
Pendergrast, 293 N.C. at 216-17, 236 S.E.2d at 796-97 (citations omitted).
Most importantly to this case when reviewing a grant of summary judgment,
the Court explained that “[r]easonableness is a question of fact to be determined in
each case by weighing the gravity of the harm to the plaintiff against the utility of the
conduct of the defendant.” Id. at 217, 236 S.E.2d at 797 (emphasis added). The court
listed considerations in determining the gravity of the harm to the plaintiff and the
utility of the conduct of the defendant, and then emphasized that,
even should alteration of the water flow by the defendant
be “reasonable” in the sense that the social utility arising
from the alteration outweighs the harm to the plaintiff,
defendant may nevertheless be liable for damages for a
private nuisance if the resulting interference with
another’s use and enjoyment of land is greater than it is
reasonable to require the other to bear under the
circumstances without compensation. The gravity of the
harm may be found to be so significant that it requires
compensation regardless of the utility of the conduct of the
defendant.
Id. at 217-18, 236 S.E.2d at 797 (quotation marks and citations omitted).
Plaintiffs argue the proper balancing could not be accomplished on defendants’
motion for summary judgment. Defendants, however, contend plaintiffs have not
established a substantial interference and point to evidence that Hernandez never
used the portion of plaintiffs’ property in question, Brown continues to enjoy his
property, and the water diversion and erosion is only an issue during those infrequent
times when there is lots of rain. Citing Whiteside Estates Inc. v. Highlands Cove,
LLC, 146 N.C. App. 449, 553 S.E.2d 431 (2001), Duffy v. Meadows, 131 N.C. 31, 42
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Opinion of the Court
S.E. 460 (1902), and N.C.P.I. -- Civil 805.25, defendants contend plaintiffs have only
shown a slight inconvenience or petty annoyance, which is insufficient to support the
nuisance claim. Defendants further contend there is nothing unreasonable about
their construction of a fence along their property line.
We disagree with defendants’ argument. Defendant has essentially performed
the fact finder’s role by weighing and balancing the evidence. Where the evidence
must be weighed and balanced, an issue of fact exists. We note that defendant has
even cited the pattern jury instruction for “private nuisance” which puts to the jury
the question of whether an interference is substantial, or merely a slight
inconvenience or a petty annoyance. See N.C.P.I. -- Civil 805.25. This lends support
to plaintiffs’ argument that the reasonableness inquiry is ordinarily a question for
the fact finder.
Construing the evidence in this case in the light most favorable to plaintiffs,
the balancing of the gravity of harm to plaintiffs with the utility of the fence to the
trust that must be conducted under the reasonable use test adopted in Pendergrast
was not appropriate for summary judgment. There was sufficient evidence to raise
material issues of fact and, therefore, we reverse the trial court’s grant of summary
judgment in favor of defendants on plaintiffs’ nuisance claim.
III. Conclusion
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BROWN V. LATTIMORE LIVING TR.
Opinion of the Court
For the reasons discussed, we affirm the trial court’s grant of summary
judgment in favor of defendants on plaintiffs’ trespass and breach of contract claims.
However, we reverse the trial court’s grant of summary judgment in favor of
defendants on plaintiffs’ nuisance claim, which presents material issues of fact to be
determined under the reasonable use test set forth in Pendergrast.
AFFIRMED IN PART, REVERSED IN PART.
Judges BRYANT and DILLON concur.
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