{ "id": 8375576, "name": "LATTICE CURL and wife, EVELYN CURL, LEWIS BOGER and wife, KATHY BOGER, Plaintiffs v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL AND PEGGY BRITT LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT, Defendants; EARL G. BROWN, EMMA L. BROWN, RICHARD B. EVANS, PEGGY F. EVANS, CATHERINE ANN EVANS, RICHARD TIM EVANS, CLARENCE FARRELL, KATHRYN FARRELL, ROBERT POWELL, SR. and RUTH MAXINE POWELL, Plaintiffs v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT, Defendants", "name_abbreviation": "Curl v. American Multimedia, Inc.", "decision_date": "2007-12-18", "docket_number": "No. COA07-444", "first_page": "649", "last_page": "658", "citations": [ { "type": "official", "cite": "187 N.C. App. 649" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "177 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301007 ], "year": 2006, "opinion_index": -1, "case_paths": [ "/nc-app/177/0132-01" ] }, { "cite": "627 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635429 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "665" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0662-01" ] }, { "cite": "395 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "97", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497384 ], "year": 1990, "pin_cites": [ { "page": "304", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0283-01" ] }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "452 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "240", "parenthetical": "quoting Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981)" } ], "opinion_index": 0 }, { "cite": "339 N.C. 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2558367 ], "year": 1994, "pin_cites": [ { "page": "351", "parenthetical": "quoting Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981)" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0338-01" ] }, { "cite": "56 S.E.2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "231 N.C. 173", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628948 ], "year": 1949, "pin_cites": [ { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0173-01" ] }, { "cite": "354 S.E.2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "317", "parenthetical": "quoting Henson v. Thomas, 231 N.C. 173, 176, 56 S.E.2d 432, 434 (1949)" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169609 ], "year": 1987, "pin_cites": [ { "page": "73", "parenthetical": "quoting Henson v. Thomas, 231 N.C. 173, 176, 56 S.E.2d 432, 434 (1949)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0070-01" ] }, { "cite": "572 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "102" } ], "opinion_index": 0 }, { "cite": "356 N.C. 415", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511250 ], "year": 2002, "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0415-01" ] }, { "cite": "175 S.E. 836", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "838" } ], "opinion_index": 0 }, { "cite": "207 N.C. 6", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621595 ], "year": 1934, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0006-01" ] }, { "cite": "1 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "371-72" } ], "opinion_index": 0 }, { "cite": "215 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628752 ], "year": 1939, "pin_cites": [ { "page": "184-85" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0183-01" ] }, { "cite": "554 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "641", "parenthetical": "citing Smith v. Bonney, 215 N.C. 183, 184-85, 1 S.E.2d 371, 371-72 (1939); Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0 }, { "cite": "354 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138307 ], "year": 2001, "pin_cites": [ { "page": "309", "parenthetical": "citing Smith v. Bonney, 215 N.C. 183, 184-85, 1 S.E.2d 371, 371-72 (1939); Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc/354/0298-01" ] }, { "cite": "32 Wm. Mitchell L. Rev. 1095", "category": "journals:journal", "reporter": "Wm. Mitchell L. Rev.", "year": 2006, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.75", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2005, "opinion_index": 0 }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "year": 2000, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0077-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249", "parenthetical": "citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496", "parenthetical": "citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "186 S.E.2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "901" } ], "opinion_index": 0 }, { "cite": "280 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572831 ], "year": 1972, "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0513-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "year": 2002, "pin_cites": [ { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "573 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123-24", "parenthetical": "quoting DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511376 ], "year": 2002, "pin_cites": [ { "page": "579", "parenthetical": "quoting DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0571-01" ] }, { "cite": "470 S.E.2d 44", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "parenthetical": "appeal of partial summary judgment dismissed as interlocutory by this Court, which subsequently hears appeal after plaintiff takes voluntary dismissals, both with and without prejudice, of remaining claims" } ], "opinion_index": 0 }, { "cite": "343 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798884 ], "year": 1996, "pin_cites": [ { "parenthetical": "appeal of partial summary judgment dismissed as interlocutory by this Court, which subsequently hears appeal after plaintiff takes voluntary dismissals, both with and without prejudice, of remaining claims" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0186-01" ] }, { "cite": "577 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "710" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9185297 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc-app/157/0121-01" ] }, { "cite": "466 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "367-68" } ], "opinion_index": 0 }, { "cite": "342 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796025 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0639-01" ] }, { "cite": "457 S.E.2d 736", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11914436 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0249-01" ] }, { "cite": "460 S.E.2d 346", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "119 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917840 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0790-01" ] }, { "cite": "555 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "638" }, { "page": "639" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9379646 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc-app/147/0362-01" ] }, { "cite": "437 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "677" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520479 ], "year": 1993, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0019-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-215.93", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "177 N.C. App. 132", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301007 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc-app/177/0132-01" ] } ], "analysis": { "cardinality": 1007, "char_count": 22540, "ocr_confidence": 0.754, "pagerank": { "raw": 1.3702745088901107e-07, "percentile": 0.6381626882493922 }, "sha256": "82f5f5b7367f720b8f46335e9ea40ffae4488bb0ca7eadd6451628bb18141c9b", "simhash": "1:4341f464727fae8c", "word_count": 3523 }, "last_updated": "2023-07-14T22:19:56.575920+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges CALABRIA and STEPHENS concur." ], "parties": [ "LATTICE CURL and wife, EVELYN CURL, LEWIS BOGER and wife, KATHY BOGER, Plaintiffs v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL AND PEGGY BRITT LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT, Defendants EARL G. BROWN, EMMA L. BROWN, RICHARD B. EVANS, PEGGY F. EVANS, CATHERINE ANN EVANS, RICHARD TIM EVANS, CLARENCE FARRELL, KATHRYN FARRELL, ROBERT POWELL, SR. and RUTH MAXINE POWELL, Plaintiffs v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT, Defendants" ], "opinions": [ { "text": "ARROWOOD, Judge.\nThis appeal arises from a lawsuit seeking damages for the contamination of Plaintiffs\u2019 wells with certain toxic chemicals. Plaintiffs appeal from entry of partial summary judgment. We affirm.\nThe Plaintiffs are individuals who are current or former residents of Hahn Road, in Burlington, North Carolina. Defendants are individuals and corporations with a present or former interest in property located near Hahn Road. Defendants\u2019 property has had soil and groundwater contamination with chlorinated solvents, including trichloroethene (\u201cTCE\u201d) and tetrachloroethene (\u201cPCE\u201d), both of which are harmful to the human body. TCE and PCE contamination has also occurred in Plaintiffs\u2019 wells.\nIn March 2003 Plaintiffs filed suit against Defendants, alleging that Defendants were liable for contamination of their wells and asserting claims of negligence, negligence per se, strict liability under N.C. Gen. Stat. \u00a7 143-215.93, nuisance, trespass, and res ipsa loquitor. Based on these claims, Plaintiffs sought damages for medical expenses, pain and suffering, the increased likelihood of future disease, the cost of medical monitoring that was recommended as a result of Plaintiffs\u2019 increased risk of disease, their fear of future disease and diminished quality of life, the cost of remediation to their properties, the diminution in the value of their properties, and the cost of alternative water supplies.\nOn 11 December 2006 the trial court granted Defendants\u2019 motion for partial summary judgment, and dismissed all claims against Defendants David J. Forsyth and Jerry C. Jones, Jr., who are not parties to this appeal. In an order entered 15 January 2007, the trial court dismissed Plaintiffs\u2019 personal injury claims for monetary damages for medical expenses, medical monitoring, pain and suffering, diminished quality of life, the increased chances that Plaintiffs would contract serious illness, and claims based on allegations of psychic or emotional injury. The trial court denied Defendants\u2019 motion for entry of summary judgment on Plaintiffs\u2019 claims for property damages, including their claims of negligence, negligence per se, nuisance, trespass, res ipsa loquitor, and strict liability to the extent that they sought damages for diminution of property value, costs of remediation, costs of obtaining alternative water supplies, and other property damage. From this order, Plaintiffs have appealed.\nStandard of Review\nPreliminarily, we note that Defendants have filed several appellate motions. The first of these, Defendants\u2019 motion to amend the record in order to add the affidavit of Walter Beckwith, a geologist who worked with Defendants, is hereby granted. The second motion, seeking dismissal of Plaintiffs\u2019 appeal for violation of the Rules of Appellate Procedure, is denied.\nDefendants\u2019 third motion, seeking dismissal of Plaintiffs\u2019 appeal as interlocutory, is also denied. \u201cA judgment is either interlocutory or the final determination of the rights of the parties.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 54(a) (2005). \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950).\nIn the instant case, the trial court entered an order of partial summary judgment, leaving Plaintiffs\u2019 claims for property damage still pending. \u201cA 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.\u201d Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). However, after the entry of partial summary judgment, Plaintiffs dismissed their remaining claims against Defendants, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (2005). N.C. Gen. Stat. \u00a71A-1, Rule 41(a)(1) (2005) provides in pertinent part that:\n[A]n action or any claim therein may be dismissed by the plaintiff ... by filing a notice of dismissal at any time before the plaintiff rests his case[.] . . . Unless otherwise stated . . . the dismissal is without prejudice!.] . . . [and] a new action based on the same claim may be commenced within one year after such dismissal[.] . . .\nAll the Plaintiffs dismissed their remaining claims; some did so without prejudice and others entered dismissals with prejudice. After entry of voluntary dismissal there was nothing further that the trial court could do in the case, although certain Plaintiffs retained the right to refile their claims within a year of entering dismissal. We find Combs & Assocs. v. Kennedy, 147 N.C. App. 362, 555 S.E.2d 634, (2001), to be instructive in this situation. In Combs, as in the instant case, the plaintiff took a voluntary dismissal without prejudice of its remaining claim. The Court held:\nOrdinarily, an appeal from an order granting summary judgment to fewer than all of a plaintiff\u2019s claim is premature and subject to dismissal. However, since the plaintiff here voluntarily dismissed the claim which survived summary judgment, any rationale for dismissing the appeal fails. Plaintiffs voluntary dismissal of this remaining claim does not make the appeal premature but rather has the effect of making the trial court\u2019s grant of partial summary judgment a final order.\nId. at 367, 555 S.E.2d at 638. Citing several other cases, the Combs Court noted further that its holding:\ncomports with the procedural posture of appeals this Court has initially dismissed as being interlocutory and then subsequently heard on appeal following voluntary dismissals. In Whitford v. Gaskill, 119 N.C. App. 790, 460 S.E.2d 346 (1995), ... the trial court granted partial summary judgment in plaintiff\u2019s favor. The defendant appealed and this Court dismissed the appeal as interlocutory[.] . . . [P]laintiff voluntarily dismissed her claim for damages. This Court then allowed the defendant\u2019s renewed appeal of the trial court\u2019s summary judgment order. Similarly, in Berkeley Federal Savings Bank v. Terra Del Sol, Inc., 119 N.C. App. 249, 457 S.E.2d 736 (1995), disc. rev. denied, 342 N.C. 639, 466 S.E.2d 276 (1996), the trial court granted the plaintiff [partial] summary judgmentj.] . . . This Court initially dismissed defendants\u2019 appeal as interlocutory, only to allow the appeal following plaintiff\u2019s voluntary dismissal of its remaining claims.\nId. at 367-68, 555 S.E.2d at 639. We agree with the Court in Combs that our holding on this issue is in accord with precedent. Additionally in Brown v. Woodrun Ass\u2019n, 157 N.C. App. 121, 577 S.E.2d 708 (2003), this Court ruled on an appeal in which:\n[The] Superior Court . . . granted partial summary judgment in favor of plaintiffs on all issues other than damages. . . . [Defendant appealed to this Court. We remanded the case to the lower court as interlocutory and not appealable because there were remaining factual issues to decide. . . . [P]laintiffs voluntarily dismissed their damages claim without prejudice[.] . . . Thereafter, defendant gave notice of appeal to this Court[.]\nId. at 123-24, 577 S.E.2d at 710; see also, e.g., Rouse v. Pitt County Memorial Hospital, 343 N.C. 186, 470 S.E.2d 44 (1996) (appeal of partial summary judgment dismissed as interlocutory by this Court, which subsequently hears appeal after plaintiff takes voluntary dismissals, both with and without prejudice, of remaining claims). We conclude that, following the dismissal of Plaintiffs\u2019 remaining claims, their appeal was no longer interlocutory.\nDefendants, however, ask us to dismiss Plaintiffs\u2019 appeal as interlocutory, based on the holding in a recent case, Hill v. West, 177 N.C. App. 132, 627 S.E.2d 662 (2006). In Hill, following dismissal of plaintiffs\u2019 appeal from partial summary judgment as interlocutory, appellants took a voluntary dismissal without prejudice of their remaining claims against defendants. Plaintiffs then filed a second appeal, which this Court dismissed. Defendants herein argue that Hill compels dismissal in the instant case. We note, however, that Hill did not attempt to distinguish its holding from the significant body of case law holding contra. Moreover, the Court in Hill stated several reasons for the dismissal, including plaintiffs\u2019 repeated failure to comply with the North Carolina Rules of Appellate Procedure, and the Court\u2019s perception that the appellants were \u201cmanipulating the Rules of Civil Procedure in an attempt to appeal the 2003 summary judgment that otherwise would not be appealable.\u201d Id. at 135, 627 S.E.2d at 665. Inasmuch as the holding in Hill was apparently based in part on the appellants\u2019 \u201cmanipulative\u201d behavior and failure to follow the Rules of Appellate Procedure, we conclude that Hill\u2019s holding is restricted to the facts of that case. Defendants\u2019 motion is denied.\nSummary judgment is properly entered \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). Further:\nThe purpose of [summary judgment] is to avoid a formal trial where only questions of law remain and where an unmistakable weakness in a party\u2019s claim or defense exists. This Court has . . . instructed that \u201can issue is genuine if it is supported by substantial evidence,\u201d which is that amount of relevant evidence necessary to persuade a reasonable mind to accept a conclusion^] . . . \u201c[A]n issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.\u201d\nLiberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 123-24 (2002) (quoting DeWitt v. Eveready Battery Co., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002); and Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972)) (citations omitted).\n\u201cOn appeal of a trial court\u2019s allowance of a motion for summary judgment, we consider whether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law. Evidence presented by the parties is viewed in the light most favorable to the non-movant.\u201d Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003) (citing Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000)).\nPlaintiffs argue that the trial court erred as a matter of law by granting summary judgment for Defendants on Plaintiffs\u2019 personal injury claims. Plaintiffs have not identified factual disputes, but instead argue that summary judgment was improper as a matter of law. We disagree.\nPlaintiffs first discuss the relationship between their claims and the Oil Pollution and Hazardous Substances Control Act (\u201cOPHSCA\u201d), N.C. Gen. Stat. \u00a7 143-215.75 (2005) et seq. N.C. Gen. Stat. \u00a7 143-215.93 (2005) provides in pertinent part: \u201cAny person having control over oil or other hazardous substances which enters the waters of the State in violation of this Part shall be strictly liable, without regard to fault, for damages to persons or property, public or private, caused by such entry[.]\u201d On the basis of \u00a7 143-215.93, Plaintiffs \u201cask the Court to enforce the plain language of OPHSCA and apply its strict liability standard to personal injury claims.\u201d\nPlaintiffs are correct that the cited statute imposes strict liability for personal and property damage on violators of OPHSCA. However, the standard of liability assumes relevance only in the context of a valid claim of personal injury. In that regard, Plaintiffs ask this Court to\nrecognize in toxic contamination cases at least these three causes of action, all of which are firmly rooted in traditional tort law: (1) infliction of a loss of chance of continued health/increased risk of serious disease; (2) an invasion of personal autonomy, specifically of the right not to be compelled to undergo heightened medical monitoring for the remainder of their lives; and (3) the instilling of fear of cancer or other deadly disease.\nWe are sympathetic to Plaintiffs\u2019 situation. Although none of the Plaintiffs is presently diagnosed with an illness caused by exposure to TCE or PCE, there is evidence that their exposure to these chemicals increased their future risk of serious illnesses, including certain cancers. These claims are not totally novel; Plaintiffs in many jurisdictions have raised similar claims. See, e.g., 32 Wm. Mitchell L. Rev. 1095 (2006), Note: A fifty-state survey of Medical Monitoring and THE APPROACH THE MINNESOTA SUPREME COURT SHOULD TAKE WHEN CONFRONTED with the issue. However, for several reasons, we elect not to create these new causes of action.\nFirstly, none of the three causes of action proposed by Plaintiffs were asserted in their complaint, which sought damages only for negligence; negligence per se; statutory strict liability; nuisance; trespass; and res ipsa loquitur. \u201cThis Court has long held that issues and theories of a case not raised below will not be considered on appeal[.]\u201d Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjust., 354 N.C. 298, 309, 554 S.E.2d 634, 641 (2001) (citing Smith v. Bonney, 215 N.C. 183, 184-85, 1 S.E.2d 371, 371-72 (1939); Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934)). \u201cBecause the pertinent allegations have not been withdrawn or amended, the pleadings have a binding effect as to the underlying theory of plaintiffs [] claim.\u201d Anderson v. Assimos, 356 N.C. 415, 417, 572 S.E.2d 101, 102 (2002).\nMoreover, the \u201crecognition of a new cause of action is a policy decision which falls within the province of the legislature. \u2018The excelsior cry for a better system in order to keep step with the new conditions and spirit of a more progressive age must be made to the Legislature, rather than to the courts.\u2019 \u201d Ipock v. Gilmore, 85 N.C. App. 70, 73, 354 S.E.2d 315, 317 (1987) (quoting Henson v. Thomas, 231 N.C. 173, 176, 56 S.E.2d 432, 434 (1949)).\nFor example, consider Plaintiffs\u2019 argument that the \u201cpolicy objectives of OPHSCA compel the recognition of \u2018increased risk of disease\u2019 as a present injury.\u201d Sound policy reasons might be advanced either in favor of or opposition to the creation of this cause of action, and if such a claim were recognized, other policy questions would arise. The questions would include the following inquiries: What statistical chance of future illness or percent increase in that likelihood would trigger the cause of action? Would secondary causes of increased risk, such, as cigarette smoking, preclude recovery? Would plaintiffs be required to demonstrate present physical effects, such as decreased immune function or increased cellular concentration of a toxin? Similar questions would arise upon recognition of the costs of future medical monitoring as a basis for damages. Would Defendants be liable for the costs of all \u201cmedically recommended\u201d monitoring, or would Plaintiffs have to meet some other standard?\nThe cases cited by Plaintiffs in support of these damages all involve future damages claimed in connection with a recognized present iniurv. However, these cases do not address or support a freestanding claim for future medical expenses in the absence of a present injury.\nClearly, recognition of the increased risk of disease as a present injury, or of the cost of medical monitoring as an element of damages, will present complex policy questions. We conclude that balancing the humanitarian, environmental, and economic factors implicated by these issues is a task within the purview of the legislature arid not the courts. Accordingly, we decline to create the new causes of action or type of damages urged by Plaintiffs.\nRegarding Plaintiffs\u2019 claims for their increased fears and anxiety, our common law has long recognized claims for negligent and intentional infliction of emotional distress. We again note that Plaintiffs failed to bring claims for either of these. Further, Plaintiffs failed to produce evidence to support these claims.\n\u201cThe essential elements of a claim for intentional infliction of emotional distress are \u2018(1) extreme and outrageous conduct by the defendant (2) which is intended to and does in fact cause (3) severe emotional distress.\u2019 \u2019\u2019Holloway v. Wachovia Bank and Trust Co., 339 N.C. 338, 351, 452 S.E.2d 233, 240 (1994) (quoting Dickens v. Puryear, 302 N.C. 437, 452, 276 S.E.2d 325, 335 (1981)). \u201cIn this context, the term \u2018severe emotional distress\u2019 means any emotional or mental disorder, such as, for example, neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.\u201d Johnson v. Ruark Obstetrics, 327 N.C. 283, 304, 395 S.E.2d 85, 97 (1990) (citations omitted).\nNone of the North Carolina cases cited by Plaintiffs suggest that a different standard might be applicable. Rather, Plaintiffs have cited cases that address issues other than the existence of severe emotional distress, wherein the presence of either a physical injury or severe emotional injury had been established. Nor are we persuaded by Plaintiffs\u2019 citations from other jurisdictions that the element of severe emotional distress is \u201cunnecessary in toxic exposure cases[.]\u201d\nPlaintiffs produced no evidence that any Plaintiff had suffered from or was diagnosed with or treated for a \u201csevere and disabling emotional or mental condition.\u201d We conclude that the trial court did not err' by granting summary judgment on their claims for damages for their emotional distress.\nFinally, Plaintiffs argue that the trial court committed \u201can error of law\u201d by granting summary judgment of Plaintiffs\u2019 claims for personal injuries associated with their claims of trespass and nuisance. As discussed above, we have concluded that Plaintiffs failed to forecast evidence of any type of personal injury that has been recognized as compensable in North Carolina.\nWe conclude that the trial court did not err and that its order of partial summary judgment for Defendants should be\nAffirmed.\nJudges CALABRIA and STEPHENS concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "Pulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Mark E. Fogel and Richard N. Watson; and Ilopf & Higley, PA., by James F. Hopf and Donald S. Higley, II, for Plaintiff-Appellants.", "Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King III, and Alexander Elkan; and Northern Blue, LLP, by J. William Blue, Jr., for Defendant-Appellees." ], "corrections": "", "head_matter": "LATTICE CURL and wife, EVELYN CURL, LEWIS BOGER and wife, KATHY BOGER, Plaintiffs v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL AND PEGGY BRITT LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT, Defendants EARL G. BROWN, EMMA L. BROWN, RICHARD B. EVANS, PEGGY F. EVANS, CATHERINE ANN EVANS, RICHARD TIM EVANS, CLARENCE FARRELL, KATHRYN FARRELL, ROBERT POWELL, SR. and RUTH MAXINE POWELL, Plaintiffs v. AMERICAN MULTIMEDIA, INC., AMI, A.M.I., INC., AMERICAN MEDIA INTERNATIONAL, LLC, AMERICAN MEDIA INTERNATIONAL, LTD., BURLINGTON PROPERTY, LLC, BILL LIMITED PARTNERSHIP, BILLY B. BRITT, PEGGY G. BRITT, Defendants\nNo. COA07-444\n(Filed 18 December 2007)\n1. Appeal and Error\u2014 motion to amend record \u2014 motion to dismiss based on appellate rules violations\nDefendants\u2019 first motion to amend the record in order to add the affidavit of a geologist who worked with defendants is granted, and defendants\u2019 second motion to dismiss plaintiffs\u2019 appeal for violation of the Rules of Appellate Procedure in a case seeking damages for the contamination of plaintiffs\u2019 wells with certain toxic chemicals is denied.\n2. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 grant of partial summary judgment \u2014 dismissal of remaining claims without prejudice makes a final order\nDefendants\u2019 motion seeking dismissal of plaintiffs\u2019 appeal in a case seeking damages for the contamination of plaintiffs\u2019 wells with certain toxic chemicals on the basis that it is from an interlocutory order is denied because: (1) plaintiffs voluntarily dismissed without prejudice their remaining claims for property damage against defendants under N.C.G.S. \u00a7 1A-1, Rule 41 after the entry of partial summary judgment, thus making the trial court\u2019s grant of partial summary judgment a final order; and (2) although defendants contend Hill v. West, 177 N.C. App. 132 (2006), compels dismissal in the instant case, inasmuch as the holding in Hill was apparently based in part on appellants\u2019 manipulative behavior and failure to follow the Rules of Appellate Procedure, Hill\u2019s holding is restricted to the facts of that case.\n3. Oil and Gas\u2014 toxic contamination of wells \u2014 personal injury claims \u2014 new causes of action \u2014 partial summary judgment\nThe trial court did not err in an action seeking damages for the contamination of plaintiffs\u2019 wells with toxic chemicals by entering partial summary judgment in favor of defendants on plaintiffs\u2019 personal injury claims for monetary damages imder the strict liability provision of the Oil Pollution and Hazardous Substance Control Act set forth in N.C.G.S. \u00a7 143-215.93 based upon loss of chance of continued health/increased risk of serious disease, right not to be compelled to undergo heightened medical monotoring, and instilling fear of cancer or other deadly disease because: (1) none of the three claims proposed by plaintiff under the strict liability statute were asserted in their complaint; (2) plaintiffs have no recognized present injury ; and (3) recognition \u2019 of a new cause of action is a policy decision within the province of the legislature.\n4. Emotional Distress\u2014 intentional infliction \u2014 toxic chemicals in wells \u2014 absence of evidence of mental condition\nPlaintiffs failed to produce evidence that they had suffered from or had been diagnosed with or treated for any \u201csevere and disabling emotional or mental condition\u201d required to establish the severe emotional distress element of a claim for the intentional infliction of emotional distress from the alleged contamination by defendants of their wells with toxic chemicals.\nAppeal by Plaintiffs from judgment entered 15 January 2007 by Judge W. Osmond Smith, III, in Alamance County Superior Court. Heard in the Court of Appeals 31 October 2007.\nPulley, Watson, King & Lischer, P.A., by Guy W. Crabtree, Mark E. Fogel and Richard N. Watson; and Ilopf & Higley, PA., by James F. Hopf and Donald S. Higley, II, for Plaintiff-Appellants.\nBrooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Robert J. King III, and Alexander Elkan; and Northern Blue, LLP, by J. William Blue, Jr., for Defendant-Appellees." }, "file_name": "0649-01", "first_page_order": 679, "last_page_order": 688 }