                 IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA15-969

                                     Filed: 5 July 2016

Mecklenburg County, No. 14-CVS-15487

SOUTH CAROLINA TELECOMMUNICATIONS GROUP HOLDINGS, D/B/A
SPIRIT COMMUNICATIONS, Plaintiff,

                v.

MILLER PIPELINE LLC, Defendant.


        Appeal by plaintiff from order entered 2 June 2015 by Judge Jesse B. Caldwell

in Mecklenburg County Superior Court. Heard in the Court of Appeals 27 January

2016.


        Matthew E. Cox, LLC, by Matthew E. Cox, for plaintiff-appellant.

        McAngus, Goudelock & Courie, P.L.L.C., by Jeffrey D. Keister and Joseph D.
        Budd, for defendant-appellee.


        DAVIS, Judge.


        South        Carolina   Telecommunications   Group   Holdings,   d/b/a   Spirit

Communications (“Plaintiff”) appeals from the trial court’s order granting summary

judgment in favor of Miller Pipeline LLC (“Defendant”). On appeal, Plaintiff contends

that the trial court erred by granting Defendant’s motion for summary judgment

despite the existence of a genuine issue of material fact. After careful review, we

affirm the trial court’s order.

                                   Factual Background
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       Plaintiff provides Internet, data, and voice communication services to

consumers in South Carolina, North Carolina, and Georgia. To facilitate this service,

Plaintiff relies, in part, upon underground fiber optic cables to transmit data. One

such fiber optic cable, designated as “NC-W5 Huntsville to Shelby” (“the Cable”), was

buried along Highway 27 outside of Bolger City, North Carolina.

       On 26 February 2013, Defendant, a company that installs pipelines, entered

into a contract with Monroe Roadways Contractors, Inc. to install “a force main,

gravity sewer and pump station” in Lincoln County. The project required excavation

in the area where the Cable was buried along Highway 27.

       Prior to beginning the excavation, Defendant contacted North Carolina’s One-

Call system (“the One-Call System”) in accordance with the provisions of the

Underground Damage Prevention Act (“the Act”), formerly codified as N.C. Gen. Stat.

§ 87-100 et seq.,1 to ensure that all entities with underground utility lines in the

vicinity would be provided with notice and afforded the opportunity to clearly mark

their underground lines with surface paint in order to minimize the likelihood that

Defendant’s excavation work would damage them. Plaintiff, upon receiving this

notice, hired a company called Synergy One to mark the Cable.




       1  We note that 2013 N.C. Sess. Laws ch. 407, §§ 1-2 repealed and replaced the Act with the
Underground Utility Safety and Damage Prevention Act, codified as N.C. Gen. Stat. § 87-115 et seq.,
effective 1 October 2014. However, the Act was still in effect at the time of the 7 March 2013 incident
giving rise to the present appeal.

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       After all of the underground lines in the vicinity had been marked but before

Defendant began its excavation work, rain washed away a significant portion of the

surface paint marking the Cable and various other underground lines. Defendant

again contacted the One-Call System, and the underground lines in the vicinity —

including the Cable — were once again marked with surface paint.

       On 7 March 2013, Defendant’s employees began their excavation work. At

approximately 9:28 a.m. on that same day, an employee of Defendant struck the

Cable, damaging it and rendering it out of service for approximately 16 hours before

it could be repaired.

       On 26 August 2014, Plaintiff filed a complaint against Defendant in

Mecklenburg County Superior Court alleging negligence and trespass in connection

with the damage caused to the Cable. On 17 April 2015, Defendant filed a motion to

dismiss and, in the alternative, a motion for summary judgment. In support of its

motion for summary judgment, Defendant filed the affidavits of Eugene Hamilton

(“Hamilton”), the lead driller for Defendant, and Richard Bowles (“Bowles”),

Defendant’s safety and quality coordinator.       Plaintiff responded to Defendant’s

motion by submitting the affidavit of Michael Baldwin (“Baldwin”), Plaintiff’s vice-

president of legal affairs.

       Defendant’s motion was heard before the Honorable Jesse B. Caldwell on 19

May 2015. At the conclusion of the hearing, the trial court granted Defendant’s



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motion for summary judgment. A written order reflecting the trial court’s ruling was

filed on 2 June 2015. Plaintiff gave timely notice of appeal on 15 June 2015.

                                        Analysis

I. Negligence Claim

      Plaintiff first argues that the trial court erred in granting summary judgment

in favor of Defendant on Plaintiff’s negligence claim because Baldwin’s affidavit

raised a genuine issue of material fact that required resolution by a factfinder at trial.

We disagree.

      “The entry of summary judgment is proper if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show 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. An order granting summary judgment is

reviewed de novo on appeal.” Martin Marietta Materials, Inc. v. Bondhu, LLC, __

N.C. App. __, __, 772 S.E.2d 143, 145 (2015) (internal citation and quotation marks

omitted).

      It is well settled that

               [o]nce the party seeking summary judgment makes the
               required showing, the burden shifts to the nonmoving
               party to produce a forecast of evidence demonstrating
               specific facts, as opposed to allegations, showing that he
               can at least establish a prima facie case at trial. It is also
               clear that the opposing party is not entitled to have the
               motion denied on the mere hope that at trial he will be able
               to discredit movant’s evidence; he must, at the hearing, be


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             able to point out to the court something indicating the
             existence of a triable issue of material fact. More than
             allegations are required because anything less would allow
             plaintiffs to rest on their pleadings, effectively neutralizing
             the useful and efficient procedural tool of summary
             judgment.

Van Reypen Assocs., Inc. v. Teeter, 175 N.C. App. 535, 540, 624 S.E.2d 401, 404-05

(internal citations and quotation marks omitted), disc. review improvidently allowed,

361 N.C. 107, 637 S.E.2d 536 (2006).

      Rule 56(e) of the North Carolina Rules of Civil Procedure addresses the

requirements for affidavits submitted in connection with a motion for summary

judgment and provides, in pertinent part, as follows:

             (e) Form of affidavits; further testimony; defense required.
             — Supporting and opposing affidavits shall be made on
             personal knowledge, shall set forth such facts as would be
             admissible in evidence, and shall show affirmatively that
             the affiant is competent to testify to the matters stated
             therein.

N.C.R. Civ. P. 56(e) (emphasis added).

      In applying Rule 56(e), our appellate courts have held that

             [a]ffidavits supporting a motion for summary judgment
             must be made on personal knowledge. Although a Rule 56
             affidavit need not state specifically it is based on personal
             knowledge, its content and context must show its material
             parts are founded on the affiant’s personal knowledge. Our
             courts have held affirmations based on personal
             awareness, information and belief, and what the affiant
             thinks, do not comply with the personal knowledge
             requirement of Rule 56(e). Knowledge obtained from the
             review of records, qualified under Rule 803(6), constitutes


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             personal knowledge within the meaning of Rule 56(e).

Hylton v. Koontz, 138 N.C. App. 629, 634-35, 532 S.E.2d 252, 256 (2000) (internal

citations, quotation marks, and brackets omitted), appeal dismissed and disc. review

denied, 353 N.C. 373, 546 S.E.2d 603 (2001).

      This Court has previously stated that

             [t]he Act addresses logistical problems which arise when
             excavation is necessary in the vicinity of a utility
             company’s underground cable lines. . . . For a utility to
             undertake excavations, it must know the position of other
             cables or lines in an area. The Act outlines the framework
             that should be followed prior to excavating in an area
             where underground utility lines are present. Generally, a
             person planning to excavate near underground utility lines
             must provide at least two days’ notice to the utility. Once
             notified, the onus is on the utility company to locate and
             describe all of its lines to the excavating party. Failure to
             identify proprietary cable lines, after a proper request by the
             excavating party, absolves an excavator from liability for
             damage to the notified utility’s line.

Lexington Tel. Co. v. Davidson Water, Inc., 122 N.C. App. 177, 179, 468 S.E.2d 66, 68

(1996) (internal citations omitted and emphasis added).

      In the present case, the resolution of Plaintiff’s negligence claim hinged on

whether the marking procedure contemplated by the Act was followed. In essence,

Plaintiff alleges that the Cable was properly marked at the time of the injury, while

Defendant has presented evidence to the contrary.

      At the summary judgment stage, Defendant submitted the affidavit of

Hamilton, its lead driller at the site of the 7 March 2013 excavation, who testified


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based on his personal knowledge that (1) advance notice was provided by Defendant

to the owners of underground utilities in the area; (2) all lines in the area were

marked with surface paint applied to the surface of the ground; and (3) “[t]here were

no locate markings within 2½ feet (plus the width of the underground line) of the

point of impact with the underground line as set forth hereinabove. In fact, the

nearest marking was at least 6 feet from this particular point of impact.”

      Defendant also offered the affidavit of Bowles, who stated that he too had

personal knowledge of the events of 7 March 2013 and that (1) “[t]here were no lines,

paint, marks, locates or other indication anywhere in the vicinity of the point of

impact with the fiber optic line to notify [Defendant] or others that the line was buried

in that location”; and (2) “[t]here were no locate markings within 2½ feet (plus the

width of the underground line) of the point of impact with the underground line as

set forth hereinabove. In fact, there were no locates at all in the vicinity of this

particular point of impact.”

      The only evidence offered by Plaintiff in response to Defendant’s summary

judgment motion was the affidavit of Baldwin.2 In his affidavit, Baldwin simply

makes the conclusory statement that “[a]ccording to photographs and video, the fiber

optic cables were clearly marked and delineated.” Nowhere in the affidavit does

Baldwin explain the specific “photographs and video” to which he is referring. Nor



      2   We note that Baldwin’s job title is vice-president of legal affairs for Plaintiff.

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does the affidavit provide any indication that he actually possessed personal

knowledge on this issue or that the statements in his affidavit were based upon

records he reviewed that were admissible under Rule 803(6) of the North Carolina

Rules of Evidence.

       We find our opinion in Eugene Tucker Builders, Inc. v. Ford Motor Co., 175

N.C. App. 151, 622 S.E.2d 698 (2005), cert. denied, 360 N.C. 479, 630 S.E.2d 926

(2006), instructive. In that case, the plaintiff leased a vehicle manufactured by Ford

Motor Company (“Ford”) from an authorized Ford dealership. Ford provided an

express warranty for the vehicle only covering damage resulting from the installation

of parts manufactured by Ford-authorized manufacturers. Id. at 152, 622 S.E.2d at

699.

       The plaintiff had an anti-theft device installed in the vehicle that was

manufactured by Directed Electronics, Inc. (“DEI”). The device caused severe damage

to the vehicle’s electronics system, and the plaintiff sued Ford based on the express

warranty. Id. Ford filed a motion for summary judgment supported by the affidavit

of Jim Cooper, a parts supplier for Ford, who testified that DEI was not a Ford-

authorized manufacturer and that, for this reason, the anti-theft device was not

covered under the express warranty. Id. at 155, 622 S.E.2d at 701. In response, the

plaintiff submitted the affidavit of James Rhyne, a former manager of the third-party

company that installed the DEI anti-theft device, stating his belief that DEI was an



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authorized manufacturer of Ford electronic systems. Id. at 153-55, 622 S.E.2d at 699-

701. The trial court granted Ford’s motion. Id. at 153, 622 S.E.2d at 699-700.

      On appeal, we affirmed the trial court’s order.

             After carefully reviewing the record, we conclude that
             plaintiff’s affidavit does not create an issue of material fact
             regarding whether the manufacturer of the anti-theft
             device, DEI, was a Ford-authorized manufacturer. When
             affidavits are offered in opposition to a motion for summary
             judgment, they must be made on personal knowledge, set
             forth such facts as would be admissible in evidence, and
             show affirmatively that the affiant is competent to testify
             to the matters stated therein. Here, Mr. Rhyne’s affidavit
             does not indicate how he had personal knowledge that DEI
             is an authorized Ford parts manufacturer. It appears that
             the source of Mr. Rhyne’s information is an exhibit
             attached to his affidavit, which is a diagram published by
             DEI illustrating how to wire an anti-theft bypass to a Ford
             vehicle. This document does not establish that DEI is a
             Ford-authorized manufacturer. The document was not
             published by Ford, and Mr. Rhyne avers no other affiliation
             with Ford Motor Company or Ford-authorized
             manufacturers. Also, Mr. Rhyne does not assert that his
             knowledge is based upon business records that he reviewed
             in the course of his employment. As the content of the
             Rhyne affidavit does not satisfy the personal knowledge
             requirement of Rule 56(e), it could not have been
             considered by the trial court in ruling on the summary
             judgment motion.

Id. at 156, 622 S.E.2d at 701 (internal citations, quotation marks, brackets, and

ellipses omitted).

      In our opinion, we contrasted Rhyne’s affidavit with the affidavit from Cooper,

noting that Cooper’s affidavit “reveals that the affiant has personal knowledge of



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Ford-authorized manufacturers through employment positions. As the moving party,

defendant has established that a non-Ford part was installed on plaintiff’s vehicle

and that this part is excluded from coverage under the express warranty.” Id. at 156,

622 S.E.2d at 702.

      Similarly, in the present case, Baldwin’s affidavit does not state or otherwise

provide any indication that his testimony was based on his personal knowledge of the

marking of the Cable or of Defendant’s excavation activities on 7 March 2013.

Moreover, Baldwin’s affidavit consists almost entirely of verbatim (or almost

verbatim) recitations of the allegations set forth in Plaintiff’s complaint. The affidavit

is replete with conclusory statements — many of which contain purely legal

conclusions.

      We dealt with a similar situation in Campbell v. Bd. of Educ. of Catawba Cty.

Sch. Admin. Unit, 76 N.C. App. 495, 333 S.E.2d 507 (1985), disc. review denied, 315

N.C. 390, 338 S.E.2d 878 (1986), in which we held as follows:

               Plaintiff’s affidavit merely restating the allegations of the
               complaint consists of conclusory allegations, unsupported
               by facts. It thus does not suffice to defeat a motion for
               summary judgment. When the moving party presents an
               adequately supported motion, the opposing party must
               come forward with facts, not mere allegations, which
               controvert the facts set forth in the moving party’s case, or
               otherwise suffer a summary judgment.

Id. at 498-99, 333 S.E.2d at 510 (internal citations, quotation marks, and brackets

omitted).


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         We similarly conclude here that Baldwin’s affidavit failed to create a genuine

issue of material fact on the issue of whether Defendant was negligent. Unlike

Baldwin, Hamilton and Bowles offered testimony based on their own personal

knowledge, and their testimony established that the location of the Cable had not

been properly marked. Their affidavits further demonstrate that Defendant complied

with all relevant portions of the Act in performing its excavation work. Therefore,

summary judgment was properly granted for Defendant as to Plaintiff’s negligence

claim.

II. Trespass Claim

         In a related argument, Plaintiff argues that the trial court erred in granting

summary judgment to Defendant on its trespass claim. Once again, we disagree.

         The elements of a trespass claim are “(1) possession of the property by the

plaintiff when the alleged trespass was committed; (2) an unauthorized entry by the

defendant; and (3) damage to the plaintiff from the trespass.” Keyzer v. Amerlink,

Ltd., 173 N.C. App. 284, 289, 618 S.E.2d 768, 772 (2005) (citation and quotation

marks omitted), aff’d per curiam, 360 N.C. 397, 627 S.E.2d 462 (2006). “[I]n the

absence of negligence, trespass to land requires that a defendant intentionally enter

onto the plaintiff’s land.” Rainey v. St. Lawrence Homes, Inc., 174 N.C. App. 611, 614,

621 S.E.2d 217, 220 (2005).




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          As with its negligence claim, Plaintiff has failed to show a genuine issue of

material fact with regard to its trespass claim. There is no suggestion in the record

that Defendant lacked legal authorization to conduct the excavation activities at

issue. Moreover, as discussed above, the admissible evidence of record established

that the impact with the Cable was not intentional and instead resulted by accident

as a result of the fact that the Cable was not properly marked. Moreover, Plaintiff

tacitly acknowledged Defendant’s right to engage in excavation activities by twice

hiring a third-party to mark the Cable so that it would not be disturbed during

Defendant’s excavation activities. Accordingly, no valid trespass claim exists on these

facts.3

                                             Conclusion

          For the reasons stated above, we affirm the order of the trial court granting

summary judgment in favor of Defendant.4

          AFFIRMED.



          3
         Given the unrebutted evidence that Plaintiff failed to properly mark the Cable, Defendant is
also absolved from liability for damages on either of Plaintiff’s theories due to the provision of the Act
providing that “[f]ailure to identify proprietary cable lines, after a proper request by the excavating
party, absolves an excavator from liability for damage to the notified utility’s line.” Lexington Tel. Co.,
122 N.C. App. at 179, 468 S.E.2d at 68.

          4Based on our resolution of this appeal on the grounds set forth herein, we need not address
Defendant’s alternative argument that Plaintiff was required to produce expert testimony as to the
applicable standard of care Defendant should have employed in conducting its excavation activities.
See Youse v. Duke Energy Corp., 171 N.C. App. 187, 196, 614 S.E.2d 396, 403 (2005) (“Since our
determination of the foregoing issues [is] dispositive of this case on appeal, we need not address
plaintiff’s remaining assignments of error.”).


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   Judges CALABRIA and TYSON concur.




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