              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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                                    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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                                   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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                                    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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                           BROWN V. LATTIMORE LIVING TR.

                                   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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                           BROWN V. LATTIMORE LIVING TR.

                                   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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