North Carolina App: When Opposing Summary Judgment, Make Sure Your Declarations State Facts, Not Conclusions (Applies In Inverse Condemnation Cases)

Here's a case from the North Carolina Court of Appeals that is similar to last week's decision by the Kansas Supreme Court, in that it involves an inverse condemnation claim resolved by the burdens on the parties in the course of a summary judgment motion.

The public utility decided to install a sewer line in what it thought was the footprint of an existing public sewer easement. Eminent domain is not implicated since the easement map shows that "all sewer easements are public" and thus do not need to be condemned. Not so fast, the map is wrong, said Mr. Costa who claimed to be the owner of the land on which the sewer was installed. Both sides filed summary judgment motions, Costa supporting his with affidavits from an attorney and a surveyor, testifying that the map does not show true state of affairs, and that the sewer was installed on Costa's private property. The trial court agreed with the utility company that Costa's supporting affidavits stated legal conclusions, and granted the utility's motion for summary judgment.

The Court of Appeals affirmed. The court concluded that the relevant portions of the affidavits stated legal conclusions, and were not admissible:

4. . . . [T]here is a clearly defined 30 foot sewer easement, 30 foot access and utility easement that pertain to Tracts A, C, D, and E, and a 30 foot sewer easement that pertains to Tracts A, C, D, and E.

5. The James Henry Hobbs, Jr. parcel is an uplands parcel, also known in this case as a remnant parcel, with no tract letter and this parcel is explicitly excluded from the acreage definition of the Map.

6. The solid lines drawn on the map are drawn around Tracts A, B, C, D, and E, but not around the James Henry Hobbs, Jr. tract.

7. This map, by its own definition, is a map that pertains to Tracts A, B, C, D and E, all as shown with setback requirements and total acreage and specifically excludes the remainder tract or remnant tract known as the James Henry Hobbs, Jr. Tract, owned by the plaintiff.

8. My conclusion, based upon my training and experience, examination of the public records, and the documents referred to in the complaint and in this affidavit, is that there is no dedicated easement other than the 15 foot roadway easement on the James Henry Hobbs, Jr. parcel.

Slip op. at 6-7. The court concluded "The final statement reaches a conclusion and decides

an issue reserved for the trial court. This statement clearly 'invades the province of the court and should not have been admitted.'" Slip op. at 7. With these affidavits stricken, the utility's motion for summary judgment was unopposed, and it was not error for the trial court to grant it.

One judge dissented, arguing that only the final paragraph should have been stricken, not the entire affidavits.

Check it out if you are interested in the civil procedures that apply in inverse condemnation (and other) cases. Cape Fear Public Utility Authority v. Costa, No. 08-CVS-4906 (July 20, 2010).