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’ 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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 offpremises 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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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). 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

“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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

¶ 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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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:
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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. 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

¶ 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 
AUTRY V. BILL CLARK HOMES, LLC

2022-NCCOA-833

Opinion of the Court

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.