Applewood Properties, LLC v. New South Properties, LLC , 219 N.C. App. 462 ( 2012 )

BEASLEY, Judge.

Applewood Properties, LLC and Apple Creek Executive Golf, LLC (Plaintiffs) filed this action on 4 December 2006 asserting claims of negligence, nuisance, trespass, violations of the Sedimentation Pollution Control Act (SPCA), negligence per se, and intentional misconduct and gross negligence against Defendants New South Properties of the Carolinas, LLC (New South), Apple Creek Village, LLC (Village), and Hunter Construction Group, Inc. (Hunter). Plaintiffs added an additional Defendant, Urban Design Partners (Urban Design), on 7 April 2009. Hunter and Village subsequently moved for partial summary judgment and New South moved for summary judgment. On 16 April 2010, the trial court granted the motions for summary judgment as to the SPCA claims, and denied the motions with respect to all other claims. The trial court filed the order on 19 April 2010 and Hunter’s counsel served the order upon the other parties on the same date. The trial court tried all of the remaining claims beginning on 19 April 2010. The jury returned a verdict in favor of Plaintiffs, finding Plaintiffs were damaged by the negligence of New South/Apple Creek, Hunter, and Urban Design, and were entitled to recover damages in the amount of $675,000. The trial court subsequently filed a judgment on 10 June 2010 awarding Plaintiffs damages in the amount of $675,000.

Plaintiffs filed and served a notice of appeal on 23 September 2010 seeking review of the 19 April 2010 order allowing Defendants’ motions for summary judgment as to the SPCA claim. On 1 July 2011, this Court allowed Plaintiffs’ motion to withdraw their appeal against all Defendants except Hunter. For the following reasons, we affirm the trial court’s order.¹

“Summary judgment is properly granted when the forecast of evidence reveals no genuine issue as to any material fact, and when the moving party is entitled to a judgment as a matter of law.” Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (citation and internal quotation marks omitted). “It has been said that a genuine issue is one which can be maintained by substantial evidence. Where the pleadings or proof of either party disclose that no cause of action or defense exists, a summary judgment may be granted[.]” Kessing v. Mortgage Corp., 278 N.C. 523, 534-35, 180 S.E.2d 823, 830 (1971).

Plaintiffs argue that the SPCA applies to the current situation, despite the fact that no sediment was deposited into a body of water. We disagree.

The preamble to the SPCA explains the purpose of the act:

The sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem. Sedimentation occurs from the erosion or depositing of soil and other materials into the waters, principally from construction sites and road maintenance. ... It is the purpose of this Article to provide for the creation, administration, and enforcement of a program and for the adoption of minimal mandatory standards which will permit development of this State to continue with the least detrimental effects from pollution by sedimentation.

N.C. Gen. Stat. § 113A-51 (2011)(emphasis added). This Court has interpreted the preamble to the SPCA to mean that “the stated legislative intent behind the enactment of the SPCA ... is to protect against the sedimentation of our waterways.” McHugh v. N.C. Dept. of E.H.N.R., 126 N.C. App. 469, 476, 485 S.E.2d 861, 866 (1997).

Plaintiffs point to N.C. Gen. Stat. § 113A-64.1 (2011) of the Act which provides that a person engaged in a “[l]and-disturbing activity” who “failed to retain sediment generated by the activity” may be required “to restore the waters and land affected by the failure so as to minimize the detrimental effects of the resulting pollution by sedimentation.” Plaintiffs then reference N.C. Gen. Stat. § 113A-52(6) (2011) of the Act, which defines “land-disturbing activity” as “any use of the land by any person in residential, industrial, educational, institutional or commercial development... that results in a change in the natural cover or topography and that may cause or contribute to sedimentation.” Plaintiffs claim these provisions show that a person may violate the SPCA by using or affecting land, with no requirement that there be a deposition of sediment into a body of water. Thus, Plaintiffs’ SPCA claim against Defendant Hunter is based on the “land-disturbing activity” engaged in by Defendants that disturbed more than one acre of land on the parcel in question. However, Plaintiffs’ fail to recognize the second requirement of a land-disturbing it may cause or contribute to sedimentation. Because the preamble to the SPCA provides that sedimentation results from the erosion or depositing of materials into water, it is clear that even a “land-disturbing activity” requires an element of deposition into a body of water.

Plaintiffs cite to this Court’s opinion in Williams v. Allen, 182 N.C. App. 121, 126, 641 S.E.2d 391, 394 (2007), where we observed that the SPCA authorizes the Sedimentation Control Commission to adopt rules for the control of erosion and sedimentation resulting from land-disturbing activities, and that this rule-making authority is not limited to circumstances where sedimentation actually reaches a waterway. This observation is clearly dicta, and consequently not binding authority. See Hayes v. Wilmington, 243 N.C. 525, 536, 91 S.E.2d 673, 682 (1956). The holding of the case is that the trial court erred by ruling that the SPCA only applies to areas of more than one acre as a matter of law. Williams, 182 N.C. App. at 127, 641 S.E.2d at 394. Moreover, the observation does not shed any light on the case sub judice because this case is not about what the Sedimentation Control Commission could theoretically regulate. Instead, this case centers on the question of when the SPCA is applicable.

Plaintiffs also point to several other cases that purportedly stand for the proposition that the SPCA applies to activities that affect only land and do not involve the infiltration of sediment into water. These cases are easily distinguishable from the instant case because they involved the deposition of sediment into water. See Banks v. Dunn, 177 N.C. App. 252, 630 S.E.2d 1 (2006)(stating that uncontroverted evidence established that the red clay mud dumped by defendant washed down the hillside and into the stream at the bottom of the hill); Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 553 S.E.2d 431 (2001)(recognizing that there was sufficient evidence for the jury to find defendant liable for trespass when defendant’s land-disturbing activities caused sediment to enter a lake on plaintiffs property).

Accordingly, we find that the SPCA does not apply to this situation and we affirm the trial court’s grant of partial summary judgment to Defendants on Plaintiffs’ SPCA claim.

Affirmed.

Judge ERVIN dissents with separate opinion. Judge Thigpen, Jr. concurs.

1 . Because the claims decided by the 10 June 2010 judgment are not before this Court, we address only the propriety of this appeal regarding the 19 April 2010 order.