Opinion
No. COA09-1279
Filed 20 July 2010 This case not for publication
Appeal by defendants and cross-appeal by plaintiffs from order entered 27 March 2009 by Judge Gary E. Trawick in Currituck County Superior Court. Heard in the Court of Appeals 14 April 2010.
Poyner Spruill LLP, by Robin Tatum Currin and Andrew J. Petesch, for plaintiffs-appellees/cross-appellants. Rose, Rand, Wallace Attorneys, P.A., by P.C. Barwick, Jr., for defendants-appellants/cross-appellees.
Currituck County No. 04 CVS 0097.
Plaintiffs-appellees/cross-appellants and defendants-appellants/cross-appellees appeal from the trial court's order denying in part and granting in part each party's motion for summary judgment. After careful review, we affirm the trial court's order.
Background
Plaintiff Currituck Associates Residential Partnership ("CARP") owns a piece of property that runs approximately 3.5 miles along the Currituck Sound in Currituck County, North Carolina. A portion of that property consists of a residential community known as the Currituck Club, which is owned by CARP. Plaintiff Currituck Club Property Owners Association, Inc. is the homeowners association for the Currituck Club.
CARP and the Currituck Club Property Owners Association, Inc. are collectively referred to as "plaintiffs" or "Currituck."
Defendant Coastland Corporation ("Coastland") and its president, defendant James E. Johnson, Jr. ("Johnson") own a piece of property that runs approximately 3.5 miles along the Atlantic Ocean. A portion of that property consists of an oceanfront residential community known as Ocean Sands. The Currituck Club and Ocean Sands are located across from each other, separated by a road known as N.C. Highway 12 ("Highway 12"). Highway 12 is a 100-foot wide right-of-way that is owned in fee simple by Coastland, but was dedicated to the North Carolina Department of Transportation ("DOT") in the 1970's. While the right-of-way is 100 feet wide, the road itself only consumes 60 feet of the right-of-way. Therefore, on both the east and west sides of Highway 12, there is a 20-foot DOT right-of-way that is unimproved. When Coastland granted DOT the right-of-way, it retained title to a strip of land ("the strip") on the west side of Highway 12 that runs along the entire length of the Currituck Club and is between 5 and 25 feet wide. The strip is designated as "open space" for Ocean Sands; however, the strip has never been used or maintained by Coastland or the residents of Ocean Sands.
Coastland and Johnson are collectively referred to as "defendants."
When construction began on the Currituck Club in 1995, the owners believed that they owned all of the property on the west side of Highway 12; however, they subsequently learned of the strip's existence, which interfered with their plans to develop an entrance into the Currituck Club from Highway 12. Currituck sought approval of its plans for the Currituck Club by the County Board of Commissioners. As presented, the Currituck Club would have had only one entrance on the property's south end due to the inability to cross over the strip to gain access to Highway 12. The plan was approved by the County Board of Commissions on 22 February 1995, but Coastland challenged the approval, claiming that the Currituck Club had no centralized access along Highway 12. The trial court upheld the Board's decision and Coastland appealed to this Court. In December 1995, the parties reached an agreement to settle the dispute, which provided that, inter alia, Coastland would convey a 100-foot wide piece of the strip to Currituck that would accommodate an entry point from Highway 12 into the Currituck Club. Currituck paid $900,000.00 for that piece of land. A settlement agreement and mutual release was executed on 15 January 1996. The Currituck Club was built with two entrances, one on the south end of the property, and the other, known as the main entrance, was built along Highway 12. This main entrance crosses over that portion of the strip purchased by Currituck from Coastland in 1996.
Beginning in May 2003, Coastland notified employees of CARP that construction trucks were crossing over the strip to enter the Currituck Club approximately 1.5 miles from the Currituck Club main entrance. Coastland asserted that these trucks were trespassing on Coastland's property when they crossed the strip from Highway 12. On 6 May 2003, Mickey Hayes ("Hayes") of Kitty Hawk Land Development, developer of the Currituck Club, wrote a letter to Dave Russotto of Landmark Building and Development, who was supervising some of the construction in the Currituck Club, requesting that all crossing over the strip cease immediately. On 24 July 2003, Coastland sent a letter to Hayes stating that the trespasses were continuing.
In September 2003, Coastland erected a series of six foot tall landscape timbers along the strip north and south of the Currituck Club's main entrance. The timbers were installed vertically and extended approximately 600 feet north and 800 feet south of the entrance in approximately 10 foot intervals. On 29 September 2003, Hayes wrote a letter to Johnson apologizing for the "crossovers." It is unclear how many times a truck crossed over the strip to enter the Currituck Club; however, it appears that only one person, Robert Difazio ("Difazio"), an Ocean Sands resident and part-time employee of Sea Check Security, actually witnessed any unauthorized activity on the strip. Others had seen tire tracks on the strip heading into the Currituck Club. Difazio testified at his deposition that on 3 March 2004, he saw two cement trucks with the letters "TNT" on the side parked on the strip.
On 4 April 2004, Coastland began constructing a solid wood fence, six feet and four inches in height, along the strip. The fence construction began in front of the Currituck Club's main entrance. On 7 April 2004, Currituck filed a Complaint and Motion for Temporary Restraining Order and Preliminary and Permanent Injunction against Coastland in Currituck County District Court. On 8 April 2004, the trial court entered a Temporary Restraining Order ("TRO") that enjoined Coastland from further construction of the fence. The TRO was to remain in effect pending a hearing.
On 5 May 2004, Currituck filed a First Amended Complaint in superior court in which it alleged the following causes of action: (1) nuisance through use of a "spite fence", and (2) unfair and deceptive acts or practices. Currituck included a Motion for Preliminary Injunction in the complaint, as well as a request for declaratory relief. On 19 May 2004, the trial court conducted a hearing on the motion. On 24 May 2004, the trial court entered a Preliminary Injunction Order in which it ordered Coastland to remove the fence and prohibited Coastland from building any structure along the strip. The preliminary injunction order is currently in effect and will remain in effect "until a trial on the merits, unless earlier dissolved by the Court."
At the hearing regarding the preliminary injunction, Coastland claimed that Currituck had not only trespassed on the strip by allowing construction traffic to cross over it, but further claimed that Currituck had trespassed on the strip and the right-of-way by installing landscaping and an irrigation system in front of the main entrance of the Currituck Club that continued onto the strip and right-of-way. Currituck claims that the May 2004 hearing was the first time Coastland had ever asserted any objection to the landscaping. Currituck admits that grass was planted on the strip and the right-of-way in 1997 and that a sprinkler was subsequently installed that crossed onto the strip and the right-of-way; however it appears that these actions went unnoticed or undisputed until 2004. In its preliminary injunction order, the trial court ordered Currituck to remove "any of its irrigation system at the entrance of the Currituck Club" that was located on Coastland's "open space." The grass and sprinkler system were removed from the strip 10 days after the hearing. Currituck acknowledges that grass is still maintained on the right-of-way.
On 6 August 2004, Coastland filed an Answer, Affirmative Defenses and Counterclaim. Coastland asserted the following causes of action against Currituck: (1) trespass; (2) breach of contract; and (3) unfair and deceptive acts or practices. Coastland also requested declaratory relief pertaining to use of the strip and right-of-way in its counterclaim.
On 29 August 2008, Coastland filed a Motion for Partial Summary Judgment claiming that there were "no genuine issues of material fact regarding Plaintiffs' claims, and Defendants are entitled to judgment as a matter of law." On 5 September 2008, Currituck filed a Motion for Summary Judgment with Respect to Liability and Injunctive Relief. On 27 March 2009, the trial court issued an order holding: (1) "the Coastland Parties [sic] claims asserted in these actions against the Currituck parties for trespass, fraud, conspiracy, and unfair and deceptive trade practices are hereby dismissed. The Currituck parties' motions for partial summary judgment are otherwise denied" and (2) "the Currituck Parties' claims asserted in these actions against the Coastland Parties for unfair and deceptive trade practices are hereby dismissed. The Coastland Parties' motion for partial summary judgment . . . is otherwise denied." Accordingly, the claims left unresolved are Currituck's nuisance claim and Coastland's breach of contract claim. Additionally, the parties' request for declaratory relief is still a matter to be considered by the trial court. Both parties timely appealed the partial denial of their motions for summary judgment to this Court.
The fraud and conspiracy claims appear to pertain to 04 CVS 388, a related but separate matter that is not a part of the appeal before us. The parties perfected their appeal with regard to 04 CVS 097 only.
Interlocutory Nature of Appeal
"A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal." Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). However, interlocutory appeals may be heard where: (1) the order affects a substantial right, or (2) the trial court certified the order pursuant to Rule 54 of the North Carolina Rules of Civil Procedure. Reid v. Cole, 187 N.C. App. 261, 263, 652 S.E.2d 718, 719 (2007). In its summary judgment order, the trial court stated that the order was entered pursuant to Rule 54(b) "and is a final judgment as to all the claims for trespass, fraud, conspiracy, and unfair and deceptive trade practices herein dismissed." However, the trial court failed to state that there was no just reason for delay as required by Rule 54(b) of the Rules of Civil Procedure and Rule 28(b)(4) of the Rules of Appellate Procedure. Nevertheless, Coastland has argued that a substantial right will be affected absent immediate appellate review.
In determining whether a substantial right will be prejudiced by delaying an interlocutory appeal, our Supreme Court has emphasized that "it is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which the appeal is sought is entered."
Davidson v. Knauff Ins. Agency, 93 N.C. App. 20, 24, 376 S.E.2d 488, 491 (quoting Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408 (1982)), disc. review denied, 324 N.C. 577, 381 S.E.2d 772 (1989).
Coastland claims that the trial court's order affects a substantial right in that:
(1) there are factual and legal issues common to all claims of all the parties regarding allowable uses of Coastland's property by Coastland and the Currituck parties, (2) the dismissed claims and the Currituck Parties' remaining claims and allegations that Coastland improperly constructed a "spite fence" . . . depend on the same facts and evidence, (3) the dismissed claims and the remaining claims are closely connected and intertwined as they all relate to the rights of the parties with respect to the property of adjoining landowners, and (4) separate trials on the common factual and legal issues could result in inconsistent verdicts.
We agree that the dismissed claims and the remaining claims are closely connected and that separate trials could result in inconsistent verdicts. See Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982) ("The right to avoid one trial on . . . disputed [fact] issues is not normally a substantial right that would allow an interlocutory appeal while the right to avoid the possibility of two trials on the same issues can be such a substantial right."); Allen v. Sea Gate Ass'n, Inc., 119 N.C. App. 761, 763, 460 S.E.2d 197, 199 (1995) (holding that the potential for inconsistent verdicts existed, and, therefore, a substantial right was affected). Accordingly, we address the merits of the issues raised despite the interlocutory nature of this appeal.
Standard of Review
"`The standard of review on appeal [from] summary judgment is whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. The question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact.'" Woods v. Mangum, ___ N.C. App. ___, ___, 682 S.E.2d 435, 438 (2009) (quoting Sellers v. Morton, 191 N.C. App. 75, 81, 661 S.E.2d 915, 920-21 (2008)), aff'd per curiam, 689 S.E.2d 858 (2010). "The burden is upon the moving party to show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law." McGuire v. Draughon, 170 N.C. App. 422, 424, 612 S.E.2d 428, 430 (2005) (citation omitted). "All facts asserted by the [nonmoving] party are taken as true and their inferences must be viewed in the light most favorable to that party." Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000) (internal citations omitted). On appeal, this Court reviews an order granting summary judgment de novo. McCutchen v. McCutchen, 360 N.C. 280, 285, 624 S.E.2d 620, 625 (2006) (citation omitted).
Discussion I. Currituck's Unfair and Deceptive Acts or Practices Claim
Currituck argues on appeal that the trial court erred in granting Coastland's motion for summary judgment and in dismissing Currituck's unfair and deceptive acts or practices claim because the evidence presented and considered by the trial court raised genuine issues of material fact and Coastland was not entitled to judgment as a matter of law. We disagree.
To prevail on a claim of unfair and deceptive [acts or] practice[s] a plaintiff must show (1) an unfair or deceptive act or practice, or an unfair method of competition, (2) in or affecting commerce, (3) which proximately caused actual injury to the plaintiff or to his business. A practice is deceptive if it has the capacity or tendency to deceive the average consumer, but proof of actual deception is not required. Whether the practice is unfair or deceptive usually depends upon the facts of each case and the impact the practice has in the marketplace. The plaintiff need not show fraud, bad faith, deliberate acts of deception or actual deception, but must show that the acts had a tendency or capacity to mislead or created the likelihood of deception.
Spartan Leasing v. Pollard, 101 N.C. App. 450, 460-61, 400 S.E.2d 476, 482 (1991) (internal citations omitted); N.C. Gen. Stat. § 75-1.1 et seq. (2009). Whether an act or practice violates Article 75 is a question of law. Budd Tire Corp. v. Pierce Tire Co., 90 N.C. App. 684, 691, 370 S.E.2d 267, 271 (1988). "The jury decides whether the defendant has committed the acts complained of. If it finds the alleged acts have been proved, the trial court then determines as a matter of law whether those acts constitute unfair or deceptive practices in or affecting commerce." Durling v. King, 146 N.C. App. 483, 487-88, 554 S.E.2d 1, 4 (2001).
Currituck argues that the building of a "spite fence" near the Currituck Club main entrance was an unfair and deceptive act that resulted in an injury to Currituck's reputation as a resort community. A spite fence is a fence that "is of no beneficial use to the owners and was erected and is maintained by them solely for the purpose of annoying the plaintiff." Burris v. Creech, 220 N.C. 302, 304, 17 S.E.2d 123, 124 (1941); accord Welsh v. Todd, 260 N.C. 527, 528, 133 S.E.2d 171, 173 (1963) ("A spite fence is one which is of no beneficial use to the owner and which is erected and maintained solely for the purpose of annoying a neighbor."); Austin v. Bald II, L.L.C., 189 N.C. App. 338, 658 S.E.2d 1, disc. review denied, 362 N.C. 469, 665 S.E.2d 737 (2008).
Arguably, there exists a material issue of fact as to whether the fence constituted a spite fence in that Currituck must prove that Coastland built the fence "solely for the purpose of annoying the plaintiff." However, we hold that assuming, arguendo, the fence was erected solely to annoy Currituck, Currituck has not provided any evidence of actual damages, a necessary element of an unfair and deceptive acts or practices claim. Spartan Leasing, 101 N.C. App. at 460-61, 400 S.E.2d at 482. "[A] defending party is entitled to summary judgment if he can show that claimant cannot prove the existence of an essential element of his claim[.]" Dickens v. Puryear, 302 N.C. 437, 453, 276 S.E.2d 325, 335 (1981).
While the residents of the Currituck Club and those traveling on Highway 12 may have found the fence to be unsightly, Currituck has not forecast sufficient evidence of an actual injury. Sunbelt Rentals, Inc. v. Head Engquist Equip., L.L.C., 174 N.C. App. 49, 61, 620 S.E.2d 222, 231 (2005) ("Plaintiffs must prove damages to a reasonable certainty" in a claim for unfair and deceptive acts or practices.); Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 462, 553 S.E.2d 431, 440 (2001) (noting that while the claiming party must present relevant data supplying a basis for an estimate as to damages, proof of an exact dollar amount is not required). Other than a general statement that the fence was built for the purpose of "creating a nuisance and interfering with the operation, reputation, and business endeavors of the Currituck Club," Currituck has not alleged an actual injury proximately caused by Coastland's erection of the fence. Accordingly, we affirm the trial court's order dismissing Currituck's unfair and deceptive acts or practices claim.
II. Coastland's Unfair and Deceptive Acts or Practices Claim
Coastland argues on appeal that the trial court erred in dismissing its unfair and deceptive acts or practices counterclaim because there were genuine issues of material fact as to whether the landscaping and sprinkler system installed on Coastland's property constituted an unfair and deceptive act or practice. Upon review of the evidence forecasted, there is no support for Coastland's claim that Currituck engaged in an unfair and deceptive act or practice or that Currituck engaged in unfair competition.
Currituck argues in its brief that Coastland's unfair and deceptive acts or practices claim only relates to landscaping on the right-of-way since the landscaping and sprinkler system located on the strip were removed after the preliminary injunction order. However, since Coastland's answer and counterclaim does not specify whether the strip or the right-of-way landscaping forms the basis for their claim, we will assume that Coastland's claim pertains to all landscaping and irrigation conducted on any property owned by Coastland at the main entrance.
There is no dispute that Currituck performed the acts alleged; therefore, there was no material issue of fact for jury determination and the trial court was charged with concluding whether the installation of the landscaping and sprinkler system on portions of the strip constituted an unfair and deceptive act or practice in or affecting commerce as a matter of law. Durling, 146 N.C. App. at 487-88, 554 S.E.2d at 4; L.C. Williams Oil Co., Inc. v. Exxon Corp., 625 F.Supp. 477, 482 (M.D.N.C. 1985) ("While a court generally determines whether a practice is an unfair or deceptive act or practice based on the jury's findings, if the facts are not disputed the court should determine whether the defendant's conduct constitutes an unfair trade practice.").
While our Supreme Court has held that to succeed under G.S. 75-1.1, it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception, plaintiff must, nevertheless, show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception.
Overstreet v. Brookland, Inc., 52 N.C. App. 444, 452-53, 279 S.E.2d 1, 7 (1981). "`A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.'" Id. at 453, 279 S.E.2d at 7 (quoting Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981)).
Coastland points to the fact that Hayes testified at his deposition that the landscaping enhanced the aesthetics of the Currituck Club main entrance, which boosted the reputation of the community. Even if the landscaping caused residents or passers-by to think that the Currituck Club entrance abutted Highway 12 and was more aesthetically pleasing with the landscaping installed on the strip, the actions of Currituck in planting the grass and installing the sprinkler system do not constitute an unfair and deceptive act or practice as a matter of law.
Moreover, Coastland has not shown any evidence of an actual injury. Coastland claims that it is a competitor of Currituck and that the enhanced landscape of the Currituck Club likely benefitted Currituck to the detriment of Coastland; however, these assertions are purely speculative. Coastland claims that it potentially lost rental income that it could have been charging Currituck for use of the strip. Again, this assertion is purely speculative. See Sunbelt Rentals, Inc., 174 N.C. App. at 61, 620 S.E.2d at 231 ("Plaintiffs must prove damages to a reasonable certainty."). Because Currituck's actions do not constitute an unfair and deceptive act or practice, and there was no actual injury to Coastland, we affirm the trial court's order dismissing Coastland's unfair and deceptive acts or practices claim.
We need not address whether Currituck's actions were in or affecting commerce.
III. Coastland's Trespass Claim
Finally, Coastland argues that the trial court erred in dismissing its trespass claim against Currituck with regard to the construction trucks passing over the strip, the planting of grass on the strip and right-of-way, and the installation of a sprinkler system on the strip and right-of-way. Coastland argues that summary judgment should have been entered in its favor as to this claim, or in the alternative, there were genuine issues of material fact that prevented dismissal of the claim. We disagree.
"A plaintiff may have a claim for trespass to real property if: (1) plaintiff was in possession of the land at the time of the alleged trespass; (2) defendant made an unauthorized entry on the land; and (3) plaintiff was damaged by the alleged invasion of his possessory rights." Rawls Assoc. v. Hurst, 144 N.C. App. 286, 292, 550 S.E.2d 219, 224, disc. review denied, 354 N.C. 574, 559 S.E.2d 183 (2001).
A. Construction Traffic
Coastland claims that construction traffic passed over the strip in order to gain easier access to the Currituck Club. Coastland can point to only one instance where a truck was actually seen and that truck was traced back to Landmark, one of the Currituck Club's "perferred builders." However, Coastland has not asserted on appeal that an agency relationship existed between Currituck and Landmark and has cited no authority, in violation of N.C. R. App. P. 28(b)(6), to support its position that Currituck is responsible for the alleged trespasses of a "preferred builder." "This rule is mandatory, and failure to follow the rule subjects the appeal to dismissal." Hatcher v. Harrah's NC Casino Company, LLC, 169 N.C. App. 151, 159, 610 S.E.2d 210, 214 (2005). Consequently, we decline to address this assignment of error.
B. Grass and Sprinkler System
Finally, Coastland claims that Currituck trespassed on Coastland's property when it planted grass and installed a sprinkler system on the strip and the right-of-way. There is no dispute that the grass and sprinkler system were installed by Currituck on Coastland's property. However, our Supreme Court has held:
An entry on land in the possession of another is privileged as against the possessor in so far as it is pursuant to his consent. The consent of the person in possession of the land to such entry may be implied. An apparent consent is sufficient if brought about by acts of the possessor. It need not be an invitation to enter, which carries with it the idea of a desire on the part of the one in possession that such entry be made. It is sufficient that his conduct be such as to indicate that he consents to the entry, if the other person desires to come upon the land.
In determining whether one who enters upon the land of another could reasonably have concluded from the conduct of the landowner that he had permission to do so, regard is to be had to customs prevailing in the community. The well-established usages of a civilized and Christian community entitle everyone to assume that a possessor of land is willing to permit them to enter for certain purposes until a particular possessor expresses unwillingness to admit them.
Smith v. VonCannon, 283 N.C. 656, 661-62, 197 S.E.2d 524, 528-29 (1973) (citation and quotation marks omitted). Upon review of the parties' conduct regarding the landscaping and sprinkler system, we hold that Coastland gave implied consent to Currituck by not objecting to the improvements, which were originally installed in 1997. Coastland did not withdraw that consent until May 2004.
The facts of the present case are similar to those that existed in Rawls. There, the plaintiff, Rawls, entered into a contract for the sale and lease of land owned by defendant, Hurst. Rawls, 144 N.C. App. at 287-88, 550 S.E.2d at 221. After the parties entered into the agreement, a dispute arose regarding the property to be sold and the transfer did not take place. Id. at 288, 550 S.E.2d at 221-22. Still, the plaintiff placed a mobile office, construction equipment, and materials on the property prior to a ground-breaking ceremony that the defendant attended. Id. at 292, 550 S.E.2d at 224. Furthermore, the defendant's children visited the property and saw the plaintiff's items present. The defendant failed to object to the presence of the plaintiff's possessions on the property for at least seven months and then only after the plaintiff rejected the deed tendered by the seller. Id. at 292, 550 S.E.2d at 224. The plaintiff sued the defendant seeking specific performance of the contract and the defendant counterclaimed for breach of contract and trespass. Id. The court upheld summary judgment on the trespass counterclaim, reasoning: "[W]e find that there was implied consent by the Hursts because they knew of the construction items on the Out Parcels and failed to take any action for several months." Id. at 292-93, 550 S.E.2d at 224.
In the present case, Coastland never complained about the presence of the grass and sprinkler system on their property until Currituck brought its action for injunctive relief in 2004. The landscaping had been present since 1997, and no one from Coastland or Ocean Sands had shown any aversion to its presence. No one at Currituck, including Hayes, was aware of any objections to the landscaping.
Currituck admits that it continues to maintain grass on the west side 20 foot portion of the DOT right-of-way pursuant to permission given by DOT. Currituck's maintenance of the grass on the strip does not constitute a trespass. Coastland claims that it maintains the underlying fee simple in the right-of-way, and, therefore, any entry onto the 20 foot unpaved portion of the right-of-way is a trespass. This argument is without merit. Though at one point Coastland attempted to withdraw its dedication of the unpaved 40 foot portion of the right-of-way, it has since conceded that the right-of-way consists of the entire 100 feet that was originally granted to DOT. DOT has given permission to Currituck to "landscape within the right of way," and it is within DOT's statutorily granted authority to do so. N.C. Gen. Stat. § 136-18(9) (2009) (emphasis added) states that DOT is authorized:
To employ appropriate means for properly selecting, planting and protecting trees, shrubs, vines, grasses or legumes in the highway right-of-way in the promotion of erosion control, landscaping and general protection of said highways; to acquire by gift or otherwise land for and to construct, operate and maintain roadside parks, picnic areas, picnic tables, scenic overlooks and other appropriate turnouts for the safety and convenience of highway users; and to cooperate with municipal or county authorities, federal agencies, civic bodies and individuals in the furtherance of those objectives. None of the roadside parks, picnic areas, picnic tables, scenic overlooks or other turnouts, or any part of the highway right-of-way shall be used for commercial purposes except (i) for materials displayed in welcome centers in accordance with G.S. 136-89.56, and (ii) for vending machines permitted by the Department of Transportation and placed by the Division of Services for the Blind, Department of Health and Human Services, as the State licensing agency designated pursuant to Section 2(a)(5) of the Randolph-Sheppard Act ( 20 USC 107a(a)(5)). . . . Every other use or attempted use of any of these areas for commercial purposes shall constitute a Class 1 misdemeanor and each day's use shall constitute a separate offense.
This statute allows DOT to work with individuals to provide landscaping for the highway right-of-ways; however, the right-of-ways are not to be used for a commercial purpose. Id. As Currituck admits, the planting of grass along the highway does provide aesthetic value to the Currituck Club; however, assuming, arguendo, that the landscaping serves a commercial purpose, it is merely an ancillary benefit to Currituck. According to the deposition testimony of the Director of DOT's Utility Division, DOT's purpose in allowing the landscaping is for the beautification of the highway and the erosion control that the landscaping provides, not to provide a commercial benefit to Currituck. This Court has held that DOT's use of a right-of-way to plant trees for "beautification" is within its statutory authority. Adams Outdoor Advertising v. N.C. Dep't of Transportation, 112 N.C. App. 120, 123, 434 S.E.2d 666, 668 (1993).
In sum, prior to 2004, Coastland failed to object to the landscaping and sprinkler system installed on the strip and right-of-way, thereby giving implied consent from 1997 to 2004. The continued landscaping of the right-of-way by Currituck has been expressly permitted by DOT, the holder of the right-of-way. Accordingly, we hold that the trial court did not err in dismissing Coastland's trespass claim.
Conclusion
There are no genuine issues of material fact and the trial court did not err as a matter of law in dismissing Currituck's unfair and deceptive acts or practices claim, and in dismissing Coastland's claims for trespass and unfair and deceptive acts or practices.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).