State ex rel. Cobey v. Ballard

WELLS, Judge. The sole issue defendants raise on appeal is whether the trial court erred in granting the State’s . motion to deny defendants’ demand for a jury trial. Both parties agree that the two prong test set out by our Supreme Court in State ex rel. Rhodes v. Simpson, 325 N.C. 514, 385 S.E.2d 329 (1989) is governing in this case. In Simpson, the Supreme Court considered whether the right to demand a jury trial exists for a defendant in an action brought by the State to enforce wetland protection provisions of the Coastal Area Management Act of 1974 and the Dredge and Fill Act of 1969, when the statutes themselves do not authorize a jury trial. Finding that the defendant in Simpson did not have a right to demand a jury trial, the Simpson Court set out the following test: [First the court must determine whether the action] brought by the State . . . existed at common law or by statute at the time of the adoption of the 1868 Constitution. Only if such an action existed at that time need we determine whether the remedy sought is one at law respecting property. (Citations omitted.) In the case at bar, the State sought a permanent injunction requiring defendants to comply with N.C. Gen. Stat. Chapter 143, Parts 21 and 21A. Seeking compliance with the relevant environmental clean-up statutes, the State sought to have the trial court order the defendants to have an independent contractor complete tightness tests on all the tanks and lines located at the discharge site; to enter into a contract for the completion of the Step I assessment previously approved by the plaintiff; to submit a report on the findings of all tightness tests and the Step I assessment, along with a remediation plan to restore the affected groundwater for approval by plaintiff; and to implement the approved remediation plan, presenting any additional engineering plans not contained in the remediation plan for State approval before final implementation. Defendant asserts that the trial court erred in granting plaintiff’s motion to deny defendants’ request for a jury trial because the case at bar should be characterized as an action in nuisance, thus qualifying as a cause of action which existed at the adoption of our State’s 1868 Constitution and satisfying the first prong of the Simpson test. We disagree. [489] In the typical common law nuisance action, the standard of liability for the asserted wrong is a factual determination of whether, by the improper use of his property, one has done injury to the land, property or rights of another. See generally Andrews v. Andrews, 242 N.C. 382, 88 S.E.2d 88 (1955). In this case, the statutory regulatory scheme or system of controls on the disputed activity sets the standards of compliance or noncompliance which constitute the wrong. The only factual determination for the court is whether compliance or noncompliance exists, not whether harm or injury has occurred or may occur. The requirements of the statutory scheme itself is what is at issue. The very complex and comprehensive set of regulatory requirements and controls established under the pertinent provisions of Chapter 143 of the General Statutes are clearly distinguishable from the parameters of a private nuisance as that term was understood under common law. Because of our disposition of the first prong of the Simpson test, we need not address the second prong of the Simpson test. The trial court’s order granting the State’s motion to deny defendants’ demand for a jury trial is Affirmed. Judges GREENE and WYNN concur.