IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-833
No. COA22-293
Filed 20 December 2022
New Hanover County, No. 19-CVS-4520
JACKIE W. AUTRY, SHARON J. AUTRY, ROBERT BLACKWELL, CARL B. CAREY, DANIEL DENSTON, ROBERT GRAHAM, LORI L. MONEYMAKER, JAMES JONES, JENNI H. JONES, JASON P. HERRING, CINDY P. HERRING, JASON R. LAMBERT AS ADMINISTRATOR OF THE ESTATE OF CHARLES R. LAMBERT, RONNIE S. NORTON, JR., JOYCE M. NORTON, MARTIN B. TAYLOR, MATTI MCMURRAY AND JESSICA L. WAGGONER, Plaintiffs,
v.
BILL CLARK HOMES, LLC, BILL CLARK HOMES OF WILMINGTON, LLC, BILL CLARK HOMES OF GREENVILLE, LLC, BILL CLARK CONSTRUCTION COMPANY, INC., AND WILLIAM H. CLARK, Defendants.
Appeal by Plaintiffs from order entered 21 June 2021 by Judge R. Kent Harrell
and from order entered 24 November 2021 by Judge Phyllis Gorham in New Hanover
County Superior Court. Heard in the Court of Appeals 7 September 2022.
Reiss & Nutt, PLLC, by Kyle J. Nutt, for Plaintiffs-Appellants.
McAngus Goudelock & Courie, by Jeffery I. Stoddard and Walt Rapp, and Hamlet & Associates, PLLC, by H. Mark Hamlet and Suzanne E. Brown, for Defendants-Appellees.
COLLINS, Judge.
¶1 This appeal stems from a negligence action filed by Plaintiffs, subdivision
homeowners, against Defendants, subdivision developers, alleging that Defendants’ AUTRY V. BILL CLARK HOMES, LLC
Opinion of the Court
failure to maintain a drainage pipe that extended beyond the subdivision boundaries
resulted in property damage due to flooding from Hurricane Florence. Plaintiffs
appeal from orders granting Defendants summary judgment on Plaintiffs’ claims for
negligence and punitive damages.1 Plaintiffs argue that the trial court2 erred by
granting Defendants summary judgment on Plaintiffs’ negligence claim because
Defendants owed both a statutory and common-law duty to maintain the off-premises
drainage pipe. Plaintiffs argue that the trial court erred by granting Defendants
summary judgment on Plaintiffs’ punitive damages claim because the trial court
applied the wrong standard when evaluating Defendants’ motion for summary
judgment, and because a genuine issue of material fact exists as to whether
Defendants’ failure to maintain the off-premises drainage pipe was “willful or wanton
conduct” as defined in N.C. Gen. Stat. § 1D-5.
¶2 Because Plaintiffs filed their complaint more than six years after the off-
premises drainage pipe was substantially completed, the statute of repose bars
Plaintiffs’ negligence claim, and summary judgment was proper. Additionally,
because Plaintiffs’ negligence claim is barred, we do not address Plaintiffs’ arguments
regarding their punitive damages claim. The trial court’s orders are affirmed.
1 Plaintiffs label their claims “Negligence” and “Gross Negligence/Willful and Wanton
Conduct/Punitive Damages.” 2 Plaintiffs appeal from separate orders entered by two different superior court judges.
We refer to the judges collectively as the trial court. AUTRY V. BILL CLARK HOMES, LLC
I. Factual Background
¶3 The record evidence, viewed in the light most favorable to Plaintiffs, indicates
that the following series of events took place between 1994 and 2018:
¶4 In October 1994, Defendants applied to the North Carolina Department of
Environment, Health, and Natural Resources (“DENR”)3 for a stormwater permit for
Tidalholm Subdivision in New Hanover County. The application included a
description of the subdivision; a proposed plan for managing stormwater runoff in
eleven vegetated swales and one pond, located between lots 129 and 130; a
certification that certain restrictions would be included in the recorded deeds limiting
the allowable built-upon area; and a stormwater maintenance plan indicating that
“[i]t shall be the responsibility of the Tidalholm Home Owners Association to provide
[certain enumerated] inspections and maintenance of the stormwater systems[.]”
¶5 DENR approved Defendants’ application and issued a certification of
compliance in December 1994 that stated:
Based on our review of the project plans and specifications, we have determined that the Tidalholm Subdivision stormwater control system complies with the Stormwater Regulations set forth in Title 15A NCAC 2H.1003(a)(3) and (i). ....
3 The Department’s health functions were removed in 1997 and it became known as
the North Carolina Department of Natural Resources. In 2015, the Department’s name was changed to the Department of Environmental Quality, as it is now known. At all relevant times the Department was titled DENR. AUTRY V. BILL CLARK HOMES, LLC
Any modification of the plans submitted to this Office or further development of this contiguous project will require an additional Stormwater Submittal/Modification and approval prior to initiation of construction . . . . Modifications include but are not limited to; project name changes, transfer of ownership, redesign of built-upon surfaces, addition of built-upon surfaces, redesign or further subdivision of the project area. This certification shall be effective from the date of issuance until rescinded. The project shall be constructed and maintained in accordance with the plans and specifications approved by the Wilmington Regional Office.
¶6 In December 1995, Tidalholm Homeowners Association, Inc. (“Tidalholm
HOA”), filed articles of incorporation with the North Carolina Secretary of State.
Pursuant to these articles, “the specific purposes for which it is formed are to provide
for maintenance, preservation and architectural control of the residence Lots and
Common Area” of Tidalholm Subdivision, to “exercise all of the powers and privileges
and to perform all of the duties and obligations of the Association as set forth in that
certain Declaration of Covenants, Conditions and Restrictions,” and to “maintain . . .
real or personal property in connection with the affairs of the Association[.]”
However, because Tidalholm HOA was incorporated after Defendants submitted the
stormwater permit application, Tidalholm HOA did not assume the responsibilities
under the certificate of compliance.
¶7 In July 1999, a Tidalholm Subdivision resident experienced flooding and hired
an architect to investigate the issue. After completing his investigation, the architect AUTRY V. BILL CLARK HOMES, LLC
wrote a letter to Defendants stating:
After reviewing the documents, maps, and the pictures of this area, [my firm] has come to the conclusion that the problem of the flooding comes from the thirty foot (30’) drainage ditch behind lot 128. This drainage ditch needs to be dredged so the storm water detention discharge pipe can do its job.
¶8 In November 1999, DENR performed a compliance inspection at Tidalholm
Subdivision and found the project in violation of the certification of compliance issued
in 1994. DENR sent a letter to Defendants stating that the swales and pond had not
been properly maintained in various ways, and that “[t]he recorded deed restrictions
for this development have not been received by this Office.” The letter did not
mention a drainage ditch behind lot 128. DENR directed Defendants to “[p]rovide a
written ‘Plan of Action’ which outlines the actions you will take to correct the
violation(s) and a time frame for completion of those actions, on or before December
17, 1999.”
¶9 DENR performed another compliance inspection in April 2000 and found the
project in violation of the 1994 certification of compliance. DENR sent a letter to
Defendants noting, among other things, that “the recent flooding problems at the
detention pond in Tidalholm [are attributable to] a high water table, however, the
offsite drainage area into the detention pond has been found to be well in excess of
the 600,000 square feet accounted for in [the original] design calculations.” DENR AUTRY V. BILL CLARK HOMES, LLC
directed Defendants to “[p]rovide a written ‘Plan of Action’ which outlines the actions
[Defendants] will take to correct the violations and a time frame for completion of
those actions, on or before May 18, 2000[,]” and reminded Defendants that “offsite
runoff must either be routed around the system or accounted for in the design of the
pond.”
¶ 10 By letter dated 5 May 2000, Defendants acknowledged receipt of letters dated
114 and 18 April 2000 indicating violations of the certification of compliance and
requested additional time to develop a plan of action. Defendants submitted a
Stormwater Management Permit Application Form in July 2000, seeking to modify
their 1994 permit. Among the proposed modifications included the installation of a
weir box under Lipscomb Drive and a reinforced concrete bypass pipe between lots
127 and 128 of the subdivision. Defendants’ plan did not show the bypass pipe
extending beyond Tidalholm Subdivision boundaries. By letter dated 28 August
2000, DENR acknowledged receipt of Defendants’ application and responded, in part:
Because of the as-built condition, the bypass as proposed is acceptable. The permit to be issued will reserve the right to address the offsite situation again if the check dams in the ditches in [a neighboring subdivision] are removed or if the ditches are piped, or if complaints regarding flooding problems are received.
However, because the application was incomplete, DENR required additional
4 An 11 April letter is not in the record. AUTRY V. BILL CLARK HOMES, LLC
information, including copies of the recorded deed restrictions, to continue its review.
¶ 11 In November 2000, DENR notified Defendants by letter that the recorded deed
restrictions for lots sold between 1995 and 1999 did not include language limiting the
built-upon area of the subdivision lots, as the 1994 certification of compliance
required. DENR directed Defendants to remedy the recorded deed restrictions and
reminded Defendants to record the required restrictions prior to selling lots in the
future. By 2016, Defendants had yet to correct the recorded deed restrictions.
¶ 12 Meanwhile, the developers of Kirkwood at Arrondale (“Kirkwood”), an adjacent
subdivision, were developing stormwater management plans to be approved by the
North Carolina Department of Transportation (“NCDOT”).5 As part of this work,
engineers for Kirkwood met with Defendants, and, in December 2001, submitted
proposed plans to NCDOT. The plans depicted the weir box and bypass pipe that
Defendants had proposed as well as a connection from the bypass pipe to a drainage
pipe that extended beyond Tidalholm Subdivision boundaries and into a wooded
ravine behind lot 128.
¶ 13 In August 2003, engineers for Kirkwood sent letters to the residents of
Tidalholm Subdivision lots 127 and 128 stating:
As part of an agreement between the developers for Kirkwood at Arrondale subdivision and the North Carolina
5 Kirkwood dealt with NCDOT rather than DENR because part of the subdivision’s
stormwater discharged through public streets. AUTRY V. BILL CLARK HOMES, LLC
Department of Transportation, we will be installing a stormwater discharge pipe through an existing easement along your southern and western property line. This line will provide drainage relief during major storm events. Please note the work should commence within the next 30 days and be completed within 30 days thereafter. . . .
The project was completed by 2007. The completed project included a drainage pipe
that extends beyond Tidalholm Subdivision boundaries and terminates in a wooded
ravine behind lot 128 on property owned by Armstrong Developers, Inc., a now
dissolved corporation.
¶ 14 In September 2016, upon discovering that the stormwater permit had not been
transferred to Tidalholm HOA in 1994, Defendants submitted to DENR a stormwater
permit ownership change form to change ownership of the stormwater permit from
Defendants to Tidalholm HOA and Tidalholm Village Homeowner’s Association, Inc.
(“Tidalholm Village HOA”).6 Ownership of the permit was not successfully
transferred until 9 October 2019. In September 2018, Hurricane Florence struck
Wilmington, and Plaintiffs’ homes experienced severe flooding. An engineer for New
Hanover County investigated the flooding and discovered that the drainage pipe in
the wooded ravine behind Tidalholm Subdivision lot 128 “was approximately 80%
blocked.” The engineer believed the blockage to be “the cause of the flooding
6 Articles of incorporation for Tidalholm Village HOA are not in the record. However, the record indicates that Tidalholm HOA was responsible for lots 1-49 of Tidalholm Subdivision, and Tidalholm Village HOA was responsible for lots 50-137. AUTRY V. BILL CLARK HOMES, LLC
experienced in the Tidalholm neighborhood . . . .”
II. Procedural History
¶ 15 Plaintiffs filed a complaint against Defendants on 4 December 2019 asserting
claims for negligence and punitive damages. Defendants answered in February 2021
and joined Tidalholm HOA and Tidalholm Village HOA as third-party defendants.
On 1 June 2021, Defendants filed a motion for partial summary judgment, requesting
that the court dismiss Plaintiffs’ punitive damages claim. After reviewing the
forecast of evidence and hearing arguments, the trial court entered partial summary
judgment in favor of Defendants on that claim.
¶ 16 Defendants voluntarily dismissed their third-party complaint in July and filed
an amended motion for summary judgment in September on Plaintiffs’ remaining
negligence claim. After reviewing the forecast of evidence and hearing arguments,
the trial court granted summary judgment in favor of Defendants and dismissed
Plaintiffs’ complaint. Plaintiffs timely appealed both orders.
III. Discussion
¶ 17 Plaintiffs argue that the trial court erred by granting summary judgment to
Defendants on Plaintiffs’ claims for negligence and punitive damages.
A. Standard of Review
¶ 18 Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that AUTRY V. BILL CLARK HOMES, LLC
there is no genuine issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021). “A genuine
issue of material fact is one that can be maintained by substantial evidence.” Curlee
v. Johnson, 377 N.C. 97, 2021-NCSC-32, ¶ 11 (quotation marks and citation omitted).
“Substantial evidence is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion and means more than a scintilla or a permissible
inference[.]” Ussery v. Branch Banking & Tr., 368 N.C. 325, 335, 777 S.E.2d 272,
278-79 (2015) (quotation marks and citations omitted).
¶ 19 We review a trial court’s order granting summary judgment de novo, taking
the evidence in the light most favorable to the non-moving party. Da Silva v.
WakeMed, 375 N.C. 1, 10, 846 S.E.2d 634, 640-41 (2020). “Under a de novo review,
the court considers the matter anew and freely substitutes its own judgment for that
of the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ., 363 N.C. 334, 337,
678 S.E.2d 351, 354 (2009) (quotation marks and citation omitted).
B. Negligence
¶ 20 Plaintiffs argue that the trial court erred by granting Defendants summary
judgment on Plaintiffs’ negligence claim. Specifically, Plaintiffs argue that
Defendants owed both a statutory and common-law duty to maintain the drainage
pipe that extended beyond Tidalholm Subdivision boundaries. Defendants dispute
that they owed a duty to Plaintiffs and argue that, even if a duty was owed to AUTRY V. BILL CLARK HOMES, LLC
Plaintiffs, the statute of repose bars Plaintiffs’ claims.
¶ 21 The applicable statute of repose provides, “No action to recover damages based
upon or arising out of the defective or unsafe condition of an improvement to real
property shall be brought more than six years from the later of the specific last act or
omission of the defendant giving rise to the cause of action or substantial completion
of the improvement.” N.C. Gen. Stat. § 1-50(a)(5)(a) (2021).
For purposes of this subdivision, an action based upon or arising out of the defective or unsafe condition of an improvement to real property includes:
....
5. Actions in contract or in tort or otherwise;
9. Actions against . . . any person who develops real property or who performs or furnishes the design, plans, specifications, surveying, supervision, testing or observation of construction, or construction of an improvement to real property, or a repair to an improvement to real property.
N.C. Gen. Stat. § 1-50(a)(5)(b) (2021). The statute of repose “serves as an unyielding
and absolute barrier that prevents a plaintiff’s right of action even before his cause
of action may accrue[.]” Black v. Littlejohn, 312 N.C. 626, 633, 325 S.E.2d 469, 475
(1985) (citations omitted). “If the action is not brought within the specified period,
the plaintiff literally has no cause of action.” Hargett v. Holland, 337 N.C. 651, 655,
447 S.E.2d 784, 787 (1994) (quotation marks, emphasis, and citations omitted). AUTRY V. BILL CLARK HOMES, LLC
“Summary judgment is proper if the pleadings or proof show without contradiction
that the statute of repose has expired.” Glens of Ironduff Prop. Owners Ass’n v. Daly,
224 N.C. App. 217, 220, 735 S.E.2d 445, 447 (2012) (quotation marks and citation
omitted).
¶ 22 Effectively, a statute of repose “creates an additional element of the claim itself
which must be satisfied in order for the claim to be maintained.” Hargett, 337 N.C.
at 654, 447 S.E.2d at 787 (citation omitted). Thus, a plaintiff has the burden of
showing that they brought the action within six years of either (1) the substantial
completion of the improvement or (2) the specific last act or omission of defendant
giving rise to the cause of action. See Nolan v. Paramount Homes, Inc., 135 N.C. App.
73, 76, 518 S.E.2d 789, 791 (1999) (citation omitted).
1. Substantial Completion
¶ 23 An improvement is substantially complete when it becomes fit for the purpose
for which it was intended. See N.C. Gen. Stat. § 1-50(a)(5)(c) (2021). The record
evidence indicates that Defendants developed a plan to install a weir box and a
concrete bypass pipe between lots 127 and 128 in July 2000. By December 2001, the
plan had been amended to include a drainage pipe that extended beyond Tidalholm
Subdivision boundaries. A 2003 letter to the residents of Tidalholm Subdivision lots
127 and 128 indicated that a project would take place near the end of the year that
included installation of the weir box and bypass pipe. The weir box, bypass pipe, and AUTRY V. BILL CLARK HOMES, LLC
off-premises drainage pipe were installed by 2007, more than ten years before
Plaintiffs filed their complaint and well outside the six-year period of repose.
2. Last Act or Omission
¶ 24 This Court has interpreted the phrase “the later of the last act or omission or
date of substantial completion” in N.C. Gen. Stat. § 1-50(a)(5)(a) to mean “the date at
which time the party (contractor, builder, etc.) has completed performance of the
improvement contract.” Monson v. Paramount Homes, Inc., 133 N.C. App. 235, 241,
515 S.E.2d 445, 450 (1999). In the absence of an improvement contract, this Court
has “no basis for determining that the ‘last act’ . . . occurred later than the date of
substantial completion.” Trillium Ridge Condo. Ass’n v. Trillium Links & Vill., LLC,
236 N.C. App. 478, 495, 764 S.E.2d 203, 215 (2014).
¶ 25 In Monson, plaintiff sued defendant Paramount Homes, Inc. (“Paramount”) in
1996 for defective construction of a home built in 1990. 133 N.C. App. at 235, 515
S.E.2d at 446. In 1997, Paramount filed a third-party complaint against Carolina
Builders Corporation (“CBC”) who had provided the original windows and doors for
the home and had repaired them in 1994 at plaintiff’s request. Id. at 236, 515 S.E.2d
at 446. Paramount’s third-party complaint was dismissed as outside the applicable
period of repose because the home was completed in 1990. Id. at 236, 515 S.E.2d at
447. Paramount appealed, arguing that CBC’s 1994 repairs were completed pursuant
to a warranty and qualified as a last act or omission. Id. AUTRY V. BILL CLARK HOMES, LLC
¶ 26 This Court rejected Paramount’s argument stating, “Assuming arguendo that
a continuing duty of repair existed pursuant to a warranty [to plaintiff], no evidence
indicates that CBC had a continuing duty to repair under the improvement contract
with Paramount.” Id. at 239, 515 S.E.2d at 448. This Court reasoned that “[t]o allow
the statute of repose to toll or start running anew each time a repair is made would
subject a defendant to potential open-ended liability for an indefinite period of time,
defeating the very purpose of statutes of repose such as N.C. Gen. Stat. § 1-50(5).”
Id. at 240, 515 S.E.2d at 449 (citation omitted). Accordingly, this Court held that,
although “[a] duty to complete performance may occur after the date of substantial
completion, . . . a repair does not qualify as a last act under N.C. Gen. Stat. § 1-50(5)
unless it is required under the improvement contract by agreement of the parties.”
Id. at 241, 515 S.E.2d at 450 (quotation marks omitted).
¶ 27 In Trillium Ridge, defendant developer contracted to construct homes in a
condominium development in 2003. 236 N.C. App. at 484, 764 S.E.2d at 208. In 2010,
extensive water damage was discovered and attributed to defects in the original
construction of the buildings. Id. at 485, 764 S.E.2d at 209. Plaintiff condominium
association sued defendant in 2011 and attempted to avoid the statute of repose by
arguing that defendant’s last act occurred in 2006 when defendant repaired a
resident’s deck. Id. at 485, 494, 764 S.E.2d at 209, 215. Plaintiff did not produce the
original construction contract but argued that the repairs “might have been required AUTRY V. BILL CLARK HOMES, LLC
as part of the original contract . . . .” Id. at 495, 764 S.E.2d at 215. This Court rejected
plaintiff’s argument, stating that, without the contract, “we have no basis for
determining that the ‘last act’ . . . occurred later than the date of substantial
completion[,]” and pointing out that plaintiff “has the burden of showing that he or
she brought the action within six years of . . . the specific last act or omission of
defendant giving rise to the cause of action.” Id. at 495, 764 S.E.2d at 215 (quotation
marks and citation omitted).
¶ 28 Here, Plaintiffs have not produced a contract related to the off-premises
drainage pipe, let alone one that confers maintenance responsibilities on Defendants.
Plaintiffs point out that a maintenance plan was required for Defendants to obtain a
stormwater permit from DENR. However, Defendants’ application for a stormwater
permit and the resulting permit issued by DENR to Defendants cannot be construed
to be a contract for construction of the off-premises drainage pipe between Plaintiffs
and Defendants. Accordingly, the date of substantial completion must be used to
determine whether the statute of repose bars Plaintiffs’ claim.
3. Exceptions to the Statute of Repose
a. Actual Possession or Control
¶ 29 Plaintiffs rely on N.C. Gen. Stat. § 1-50(a)(5)(d) to argue that the statute of
repose is not applicable here because Defendants had a maintenance obligation.
¶ 30 Subsection 1-50(a)(5)(d) provides: AUTRY V. BILL CLARK HOMES, LLC
The limitation prescribed by this subdivision shall not be asserted as a defense by any person in actual possession or control, as owner, tenant or otherwise, of the improvement at the time the defective or unsafe condition constitutes the proximate cause of the injury or death for which it is proposed to bring an action, in the event such person in actual possession or control either knew, or ought reasonably to have known, of the defective or unsafe condition.
N.C. Gen. Stat. § 1-50(a)(5)(d) (2021).
¶ 31 This subsection applies specifically to defendants in actual possession or
control of the defective or unsafe condition. Nothing in the subsection indicates that
it applies to instances of maintenance obligations generally, and Plaintiffs make no
argument to support their position. Additionally, although Plaintiffs’ complaint
alleges that in September 2018 Defendants were in actual possession or control of the
off-premises drainage pipe, the record evidence does not support Plaintiffs’ allegation
and Plaintiffs have provided no support for this allegation on appeal.
b. Willful or Wanton Negligence
¶ 32 Plaintiffs also argue that the statute of repose is not applicable here because
Defendants’ conduct was willful or wanton. See N.C. Gen. Stat. § 1-50(a)(5)(e) (2021)
(“The limitation prescribed by this subdivision shall not be asserted as a defense by
any person who shall have been guilty of . . . willful or wanton negligence . . . in
developing real property . . . or construction of an improvement to real property, or a
repair to an improvement to real property . . . .”). “‘Willful or wanton conduct’ means AUTRY V. BILL CLARK HOMES, LLC
the conscious and intentional disregard of and indifference to the rights and safety of
others, which the defendant knows or should know is reasonably likely to result in
injury, damage, or other harm. ‘Willful or wanton conduct’ means more than gross
negligence.” N.C. Gen. Stat. § 1D-5(7) (2021).
¶ 33 The record evidence, viewed in the light most favorable to Plaintiffs, does not
support the conclusion that Defendants’ conduct was willful or wanton. Defendants
proposed a plan for managing stormwater runoff in eleven vegetated swales and one
pond, located between lots 129 and 130, that received a certification of compliance
from DENR in 1994. In 1999, an architect hired by a subdivision resident sent a
letter to Defendants stating that the drainage ditch behind lot 128 needed to be
dredged to alleviate flooding in the subdivision. In 1999 and 2000, DENR notified
Defendants that Tidalholm Subdivision was in violation of its certification of
compliance because the off-site drainage exceeded Defendants’ original calculations,
the swales and detention pond had not been properly maintained in various ways,
and the recorded deed restrictions for the subdivision had not been received. DENR
directed Defendants to develop a plan to correct the violations.
¶ 34 Defendants developed and submitted a plan to resolve the violations, which
included the installation of a weir box and a concrete bypass pipe between lots 127
and 128. DENR stated that Defendants’ plan as proposed was acceptable; that plan
did not show the bypass pipe extending beyond Tidalholm Subdivision boundaries. AUTRY V. BILL CLARK HOMES, LLC
Meanwhile, engineers for Kirkwood met with Defendants to develop and submit
stormwater management plans to be approved by NCDOT. The plans submitted to
NCDOT included the weir box and bypass pipe between lots 127 and 128, as well as
the drainage pipe that extended beyond Tidalholm Subdivision boundaries. Although
the plans submitted by Kirkwood to NCDOT did not match Defendants’ plan that
DENR found acceptable, Defendants did not notify DENR of the change.
¶ 35 This evidence shows that Defendants were responsive to DENR’s notices of
violations but failed to notify DENR that the plans changed due to coordination with
a neighboring subdivision. It does not support the conclusion that Defendants’
conduct was in “conscious and intentional disregard of and indifference to the rights
and safety of others,” or that Defendants knew their conduct was “reasonably likely
to result in injury, damage, or other harm.” N.C. Gen. Stat. § 1D-5(7).
¶ 36 Plaintiffs also argue that Defendants’ continued failure to include the required
deed restrictions, along with their failure to transfer the stormwater permit to
Tidalholm HOA and Tidalholm Village HOA, “is evidence that [Defendants]
deliberately chose not to discharge their duties in violation of the law and in reckless
disregard of the Plaintiffs’ rights.” Even if these failures are viewed as an intentional
disregard for regulatory requirements, Plaintiffs have forecast no evidence indicating
that these administrative failures were “reasonably likely to result in injury, damage,
or other harm.” Id. AUTRY V. BILL CLARK HOMES, LLC
¶ 37 According to DENR’s November 2000 letter to Defendants, the consequence for
failing to include the required deed restrictions was that “the subdivision cannot be
considered as maintaining a low density[;]” the letter makes no mention that the deed
restrictions are necessary for safety reasons. Although Defendants’ conduct, viewed
in the light most favorable to Plaintiffs, could demonstrate an intentional disregard
of and indifference to DENR’s regulations, it does not demonstrate an “intentional
disregard of and indifference to the rights and safety of others.” Id.
¶ 38 Because the record evidence indicates that the off-premises drainage pipe was
substantially completed in 2007, far more than six years before Plaintiffs filed their
complaint, and because no exception to the statute of repose applies, the “pleadings
or proof show without contradiction that the statute of repose has expired,” and
summary judgment was properly granted. Glens of Ironduff, 224 N.C. App. at 220,
735 S.E.2d at 447.
C. Punitive Damages
¶ 39 Plaintiffs also argue that the trial court erred by granting Defendants
summary judgment on Plaintiffs’ claim for punitive damages. Specifically, Plaintiffs
argue that the trial court applied the wrong standard when evaluating Defendants’
motion for summary judgment on this claim, and that the forecast of evidence could
support an award of punitive damages.
¶ 40 Punitive damages may only be awarded “when a cause of action otherwise AUTRY V. BILL CLARK HOMES, LLC
exists in which at least nominal damages are recoverable by the plaintiff.” Shugar v.
Guill, 304 N.C. 332, 335, 283 S.E.2d 507, 509 (1981) (citation omitted). Because
Plaintiffs’ negligence claim is barred by the statute of repose, Plaintiffs may not
recover punitive damages. Accordingly, we do not address Plaintiffs’ arguments.
IV. Conclusion
¶ 41 Because the record shows proof without contradiction that the drainage pipe
that extended beyond Tidalholm Subdivision boundaries was substantially completed
more than six years before Plaintiffs filed their complaint, Plaintiffs’ complaint is
barred by the statute of repose. The trial court’s orders are affirmed.
AFFIRMED.
Judges DIETZ and CARPENTER concur.