Bjornsson v. Mize

ARNOLD, Judge. The first issue presented for review is whether the trial court erred in granting the defendants, Carlton H. Mize and Pearl B. Mize, summary judgment. Summary judgment is only appropriate where a movant has shown that there is no genuine issue as to a material fact and that they are entitled to a judgment as a matter of law. Vassey v. Burch, 301 N.C. 68, 269 S.E. 2d 137 (1980). The plaintiffs’ cause of action is a private nuisance action in which they seek to hold the adjacent landowners liable for flooding damages because of their alteration in the flow of surface water. In order to prevail against the Mize defendants, the plaintiffs must show a causal link between the development on the Mize property and the flooding of plaintiffs’ land. Once they establish the causal link their right to recover is governed by the [293] reasonable use doctrine set forth in Pendergrast v. Aiken, 293 N.C. 201, 236 S.E. 2d 787 (1977). There is a conflict in the forecasts of evidence offered by the parties. The plaintiffs offered affidavits from which a jury could find that the flooding was caused in part by the Mize development and in part by the downstream drainage system. In opposition to this showing the Mizes offered affidavits which tended to show that the flooding was caused entirely by an inadequate drainage system downstream from the plaintiffs’ property. The question of causation is a question of fact; therefore, the trial court erred in granting summary judgment in favor of the Mize defendants. The next issue is whether the trial court erred in allowing the motion to dismiss by the defendant Montessori Children’s House of Chapel Hill, Inc. pursuant to Rule 12(b)(6). It is apparent from the record that in ruling upon the motion to dismiss the court relied upon matters outside the record; therefore, we will treat the court’s actions as if it ruled upon a motion for summary judgment made pursuant to Rule 56 of the Rules of Civil Procedure. See Rule 12(b) of the Rules of Civil Procedure. In support of their motion to dismiss the Children’s House presented an affidavit from its administrator that it was not and had never been owners of the property in question, and that it furthermore had not come into possession of the property until after the last flooding complained of in the complaint. Following the filing of this affidavit the plaintiffs failed to come forward with evidence, by affidavit or otherwise, which would have tended to show an issue of triable fact existed between the parties. By failing to do so the plaintiffs’ claim against the Children’s House was subject to summary judgment. Rule 56 of the Rules of Civil Procedure. The summary judgment in favor of the Montessori Children’s House of Chapel Hill, Inc. is affirmed. Finally, plaintiffs contend the court erred by denying their motion to join as a necessary party Montessori Partnership, the record owner of the property leased to the Children’s House. G.S. 1A-1, Rule 19(a) requires that a person must be joined as a party to an action if that person is “united in interest” with another party to the action. A person is “united [294] in interest” with another party when that person’s presence is necessary in order for the court to determine the claim before it without prejudicing the rights of a party before it or the rights of others not before the court. Ludwig v. Hart, 40 N.C. App. 188, 190, 252 S.E. 2d 270, 272 (1979). In the case at bar the plaintiffs are alleging that the separate development of the lands owned by the Mize defendants and the land owned by the Montessori Partnership together caused the flooding on their property. This claim cannot be fully adjudicated without the addition of Montessori Partnership; thus, it is a necessary party. The court’s order denying plaintiffs’ motion to join it was in error and must be reversed. Affirmed in part, reversed in part and remanded. Judges Martin and Parker concur.