Autry v. Bill Clark Homes

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’

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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.

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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.

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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

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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

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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.

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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.

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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.

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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

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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

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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).

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“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

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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.

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¶ 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

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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:

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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

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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.

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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.

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¶ 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

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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.