S. Carolina Telecomms. Grp. Holdings v. Miller Pipeline LLCÂ , 248 N.C. App. 243 ( 2016 )

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
S.C. TELECOMM. GRP. HOLDINGS, D/B/A SPIRIT COMMC’N V. MILLER PIPELINE LLC
Opinion of the Court
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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Opinion of the Court
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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