IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION
Master Case No. 5:15-CV-00013-BR

)
IN RE: NC SWINE FARM )
NUISANCE LITIGATION ) Fed. R. Civ. P. 56; L. Civ. R. 56.1
)
_______________________________________ )

THIS DOCUMENT RELATES TO:

Anderson v. Murphy-Brown LLC, No. 7:14-cv-00183-BR
Artis v. Murphy-Brown LLC, No. 7:14-cv-00237-BR
Gillis v. Murphy-Brown LLC, No. 7:14-cv-00185-BR
McGowan v. Murphy-Brown LLC, No. 7:14-cv-00182-BR
McKiver v. Murphy-Brown LLC, No. 7:14-cv-00180-BR

MURPHY-BROWN LLCS REPLY MEMORANDUM IN FURTHER SUPPORT OF ITS

MOTION FOR PARTIAL SUMMARY JUDGMENT ON AVAILABILITY
OF ANNOYANCE DAMAGES CLAIMS

Case 5:15-cv-00013-BR Document 447 Filed 05/26/17 Page 1 of 13

 Defendant Murphy-Brown LLC (Murphy-Brown) states as follows in further support of its

Motion for Partial Summary Judgment on Availability of Annoyance Damages Claims (Doc. 287,

Murphy-Browns Mot.) and Memorandum in Support (Doc. 288, Murphy-Browns Mem.):

INTRODUCTION

Like Plaintiffs Memorandum in Support of their Motion for Partial Summary Judgment on

Annoyance and Discomfort Damages (Doc. 319) (Pls. Mem.), Plaintiffs Opposition to Murphy-

Browns Motion (Doc. 384, Pls. Oppn) relies primarily on inadmissible evidence meant to distract

the Court from the legal issues pertinent to adjudication of the parties cross-motions on annoyance

damages. Plaintiffs also misinterpret and misapply the relevant case law. Most importantly, however, all

of Plaintiffs arguments that annoyance damages are available in North Carolina are unconvincing in light

of the passage of 2017 N.C. Sess. Laws ch. 11, 2.(a), An Act to Clarify the Remedies Available in

Private Nuisance Actions Against Agriculture and Forestry Operations, which codifies the common law

that a plaintiffs damages in a temporary nuisance case involving an agricultural or forestry operation

are, and have always been, solely limited to injuries to a plaintiffs property interests and do not include

annoyance damages. (Murphy-Browns Reply to Pls. Stmt. of Facts (SOF) 25(a).)

ARGUMENT

I. Annoyance Damages Are Not Recoverable In North Carolina Nuisance Actions.

As discussed in detail in Murphy-Browns Memorandum, personal injury damages are not

available for recovery under private nuisance causes of action in North Carolina. Grant v. E. I. Du Pont

De Nemours & Co., No. 4:91-cv-55-H, 1995 U.S. Dist. LEXIS 15345, at *19-21 (E.D.N.C. 1995).

A. Plaintiffs Misconstrue The Case Law Cited By Murphy-Brown. 1

In connection with their false contention that Murphy-Brown has admitted that operations at its

1
The Rudd, Phillips, and Whiteside cases have been discussed at length in prior briefing. (See Doc. 288,
Murphy-Browns Mem. 7-9; Doc. 14, Murphy-Browns Mem. In Support of Mot. to Dismiss 9-17.)
Murphy-Brown incorporates and relies on its prior arguments regarding these cases.

1
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growers hog farms interfere with Plaintiffs properties, 2 Plaintiffs spend several pages attempting to

distinguish the Grant case on the grounds that it purportedly did not involve any interference with the

plaintiffs properties. (Doc. 384, Pls. Oppn 13 (emphasis removed).) On that basis Plaintiffs argue that

Grants holding should be limited to cases where there has been no physical impact to a plaintiffs

property. (Id.) This argument is similar to an argument raised by DuPont and summarily rejected by the

this Court that actual contamination [of the property] is required in order to maintain an action for

nuisance. Grant, 1995 U.S. Dist. LEXIS 15345, at *16. Calling this argument frivolous, the Court

explained that [n]uisance, by definition, is a non-trespassory invasion of property rights. Id. Whether

or not a plaintiffs home has been physically impacted is irrelevant to both a plaintiffs ability to state a

prima facie nuisance claim and the question of whether he or she is able to recover annoyance damages.

In addition, Plaintiffs interpretation of Grant confuses the concepts of interference and

contamination. (Doc. 384, Pls. Oppn 12-15.) The term interference has broad application in

nuisance actions, as a plaintiff must demonstrate the existence of an unreasonable interference with his or

her use and enjoyment of property in order to establish a prima facie claim. See, e.g., Whiteside Estates,

Inc. v. Highlands Cove, LLC, 146 N.C. App. 449, 455, 553 S.E.2d 431, 436 (2001). The term

contamination, however, is limited to the facts of Grant, which involved the alleged release of

chemicals into the plaintiffs groundwater and atmosphere. 1995 U.S. Dist. LEXIS 15345, at *1-2. The

Courts comment that the plaintiffs could not rely on evidence of contamination to support their nuisance

claim where there was no evidence of chemicals on their property does not translate, as Plaintiffs argue,

into a holding that the plaintiffs had no evidence of any interference with their property interests.

Contamination (or lack thereof) was simply one piece of evidence the parties used to prove (or disprove)

2
Murphy-Brown has not admitted, as Plaintiffs claim, that odors, flies, and noise associated with
operations at growers hog farms interfere with Plaintiffs properties. (Doc. 384, Pls. Oppn 14.) The
testimony submitted by Murphy-Brown merely demonstrates that Plaintiffs are claiming damages for
their annoyance, embarrassment, and discomfort. Certainly, Murphy-Brown has not conceded that the
hog farms are the cause of Plaintiffs alleged annoyance. In fact, Murphy-Brown contends that
conditions located and observed on the Plaintiffs own property during home inspections are actually the
cause of certain alleged nuisances. (Doc. 367-4 11-83, Decl. of Richard M. Houseman.)

2
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interference. Id. at *19 (noting that the chemicals on [plaintiffs] neighbors property . . . can cause little

if any interference with the non-contaminated landholders property rights).

The Grant Court also considered whether the plaintiffs mental anguish or emotional distress

could be used to establish the necessary interference, ultimately finding that such claims were not

recoverable in a nuisance action. Id. at *20. There is no support for Plaintiffs argument that Grants

holding is limited to cases where there has been no interference with the plaintiffs property. Because a

plaintiff cannot ever establish the existence of a nuisance without demonstrating the existence of an

interference, this argument is simply illogical.3

B. The Cases Cited By Plaintiffs Are Inapposite. 4

As discussed in detail in Murphy-Browns Opposition to Plaintiffs Memorandum (Murphy-

Browns Oppn), there is no indication that the defendants in any of the cases relied on by Plaintiffs ever

challenged the availability of annoyance damages or that those courts analyzed whether such damages

were recoverable. See, e.g., Hanna v. Brady, 73 N.C. App. 521, 527-28, 327 S.E.2d 22, 25-26 (1985);

Broadbent v. Allison, 176 N.C. App. 359, 363, 626 S.E.2d 758, 762 (2006); Ingram v. City of Hickory,

191 N.C. 48, 53-54, 131 S.E. 270, 273 (1926). Consequently, they are not authoritative as to whether

North Carolina law permits recovery for annoyance and discomfort damages. 5

3
Plaintiffs incorrectly assert that Grant favorably cited Hanna v. Brady. (Doc. 384, Pls. Oppn 17.) In
fact, the Grant court called Plaintiffs reliance on Hanna misplaced. Grant, 1995 U.S. Dist. LEXIS
15345, at *19. Though the Magistrate relied on Hanna, the District Court rejected this recommendation,
finding emotional distress damages not recoverable under a nuisance claim. Id. at *20-22.
4
Murphy-Brown also incorporates its prior arguments regarding these cases. (Doc. 381, Murphy-
Browns Oppn 4-7.) Notably, Plaintiffs Opposition completely fails to address Babb v. Lee County
Landfill SC, LLC, 405 S.C. 129, 747 S.E.2d 468 (2013), in which the South Carolina Supreme Court
confirmed in an expansive and detailed opinion that annoyance and discomfort damages are unavailable
in nuisance actions in South Carolina. Specifically, the court explained that from their inception through
to today, trespass and nuisance have been actions limited to the protection of ones property interests and
held that allowing recovery for personal annoyance and discomfort under the guise of trespass and
nuisance would be the stealth recognition of an entirely new tort. Id. at 141, 747 S.E.2d at 474.
5
Plaintiffs also purport to incorporate a 74-page national survey on annoyance damages, attached to their
Opposition to Murphy-Browns Motion to Dismiss. (Doc. 384, Pls. Oppn 21; Doc. 19-6.) None of
these cases is pertinent to whether the Supreme Court of North Carolina would permit recovery of
annoyance damages here. Priority Ambulance, LLC v. Poirier, No. 4:14-CV-00045-F, 2016 U.S. Dist.
LEXIS 176283, at *6 (E.D.N.C. Dec. 21, 2016) (In a diversity action, this federal court, sitting in North
Carolina, is required to apply the law of North Carolina as it is interpreted by the states highest court.).

3
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 In Hanna, the court analyzed whether the jurys verdict of $35,000 was excessive, reviewing the

amount (not type) of damages permitted. Hanna, 527-28, 327 S.E.2d at 25-26. Like Hanna, Broadbent

simply states that evidence of a plaintiffs annoyance is admissible to prove the existence of a

substantial and unreasonable interference[.] 176 N.C. App. at 363, 626 S.E.2d at 762. Plaintiffs

arguments center around jury instructions that were not subject to appeal and are not authoritative as part

of the appellate courts opinion. See, e.g., Word v. Jones, ex. rel. Moore, 350 N.C. 557, 564, 516 S.E.2d

144, 148 (1999). There is simply no indication that defense counsel ever argued that annoyance damages

were not recoverable as a separate item of damages, as Murphy-Brown urges here.

The opinion in Thomason v. Railroad relies on language from a case grounded in the common

law of the District of Columbia. 142 N.C. 300, 316, 55 S.E. 198, 204 (1906) (citing Balt. & Potomac

R.R. Co. v. Fifth Baptist Church, 108 U.S. 317, 2 S. Ct. 719 (1883)). Not one North Carolina opinion has

relied on Thomason to award damages for mere annoyance in a nuisance action. To the extent Thomason

stands for this proposition, it has been overruled by subsequent opinions of the North Carolina Supreme

Court. See Raleigh, Charlotte & S. Ry. Co. v. Mecklenburg Mfg. Co., 169 N.C. 156, 162, 85 S.E. 390,

393 (1915); Carolina & Yadkin River R.R. v. Armfield, 167 N.C. 464, 467, 83 S.E. 809, 811 (1914).

Plaintiffs reliance on Ingram is also misplaced. The language quoted by Plaintiffs is clearly dicta; the

issue of nuisance damages was not before the court. Ingram, 191 N.C. at 53-54, 131 S.E.2d at 273.

C. North Carolinas Pattern Jury Instructions Support Murphy-Browns Position.

North Carolinas pattern jury instructions for property damages, which apply in nuisance actions,

Nor is there authority to support Plaintiffs claim that Murphy-Browns analysis regarding Arkansas and
Michigan law is incorrect. (Doc. 384, Oppn 22.) There is no evidence that the defendants in Beilat v.
South Macomb Disposal Authority, No. 249147, 2004 Mich. App. LEXIS 3070, at *33-35 (Mich. Ct.
App. 2004), ever challenged the ability to recover annoyance damages, and Beilat did not (and could not,
as an unpublished intermediate court decision) overrule the Michigan Supreme Court case cited by
Murphy-Brown, Kobs v. Zehnder, 326 Mich. 202, 207, 40 N.W.2d 120, 122 (Mich. 1949). Similarly,
Plaintiffs admitted that the Felton Oil case in Arkansas relate[d] more to negligence than nuisance law.
(Doc. 19-6, 72.) As such, it cannot be interpreted as overruling the earlier Supreme Court case cited by
Murphy-Brown, Junction City Lumber Co. v. Sharp, 92 Ark. 538, 123 S.W. 370 (1909). Finally, as a
federal case interpreting Arkansas law, the Ginardi case is not authoritative, particularly given that it did
not decide the availability of discomfort damages. Ginardi v. Frontier Gas Servs. LLC, No.
4:11cv00420-BRW, 2011 U.S. Dist. LEXIS 89054, at *9-10 (E.D. Ark. 2011).

4
Case 5:15-cv-00013-BR Document 447 Filed 05/26/17 Page 5 of 13
directly track the courts directives in Rudd and Phillips regarding available damages and support

Murphy-Browns argument that nuisance claims are intended to compensate for injuries to property, not

the person. See Rudd v. Electrolux Corp., 982 F. Supp. 355, 372 (M.D.N.C. 1997) (citing Phillips v.

Chesson, 231 N.C. 566, 571-72, 58 S.E.2d 343, 347-48 (1950)). N.C.P.I. Civil 810.62 provides that the

plaintiffs actual property damages are equal to the difference between the fair market value of the

property immediately before it was damaged and its fair market value immediately after it was damaged.

Similarly, N.C.P.I. Civil 810.64 applies where the propertys market value cannot be readily determined

and provides that the plaintiffs actual property damages are equal to the amount reasonably needed to

[repair the damage to the property] [replace the property damaged], less [the salvage value of the

property] [parts replaced] [the accumulated depreciation on the property replaced]. Finally, N.C.P.I.

Civil 810.66 applies where damages measured by market value would not adequately compensate the

plaintiff and repair or replacement would be impossible. It provides that the plaintiff is entitled to

recover the actual value of his property immediately before it was damaged, and specifically instructs

the jury not [to] consider any fanciful, irrational or purely emotional value that [the property] may have

had in assessing that value. Id. These instructions do not provide for annoyance damages, although

that term is mentioned in the liability instructions. See N.C.P.I. Civil 805.25. As such, the damages

instructions provide further support for the position that annoyance damages are not recoverable in a

private nuisance action in North Carolina.

D. North Carolina Has Not Adopted Restatement Section 929s Provision Regarding
Annoyance Damages.

Though Plaintiffs rely on Restatement section 929 for the proposition that annoyance damages

are available in North Carolina (Doc. 384, Pls. Oppn 21), Plaintiffs cite no North Carolina case that

relies on that section in evaluating the permissibility of annoyance damages in a private nuisance action

nor has Murphy-Brown located such a case. 6 See Restatement (Second) of Torts 929(1)(a). Though

6
Plaintiffs represent that Murphy-Brown has admitted [section 929] has some persuasive value, citing
to Murphy-Browns April 25, 2015 Motion to Dismiss Reply. (Doc. 384, Pls. Oppn 21.) This
characterization takes more than a little artistic license. Murphy-Browns actual statement was that while

5
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Plaintiffs rely on BSK Enterprises, Inc. v. Beroth Oil Co., 783 S.E.2d 236 (N.C. App. 2016), that case

does not address annoyance damages. It only addresses the separate issue of whether plaintiffs can

maintain an award for repair damages that exceed property value. Id. at 243, 249. Although BSK cites to

section 929, its holding is consistent with Rudd, Phillips, and the North Carolina pattern jury instructions

in that it advocates awarding damages only for quantifiable, objective economic harm so as to avoid

unjustly enriching the plaintiffs. 7 Id.

II. Comments Made By Legislators Regarding HB 467 Are Not Admissible To Determine
Legislative Intent.

Plaintiffs spend much of their Opposition discussing 2017 N.C. Sess. Laws ch. 11, 2.(a), which

became law on May 11, 2017 (the Statute). 8 (SOF 25(a).) But the type of evidence Plaintiffs seek to

introduce comments made by North Carolina legislators during committee meetings discussing House

Bill 467 (HB 467) may not be considered as evidence of legislative intent in North Carolina. 9 (See,

e.g., Doc. 381, Murphy-Browns Oppn 9-12); see also, e.g., Elec. Supply Co. v. Swain Elec. Co., 328

N.C. 651, 657, 403 S.E.2d 291, 295 (1991). In analyzing legislative intent, Courts are not permitted to

look outside the language of the statute itself. See, e.g., State v. Fletcher, 782 S.E.2d 926, at *23 (N.C.

sources such as the Restatement and other treatises and reporters cited by Plaintiffs might have some
persuasive value, to the extent they are in conflict with recent pronouncements of the North Carolina
Supreme Court, Plaintiffs reliance on them is misplaced. (Doc. 21 at 7 (emphasis added).)
7
To the extent Plaintiffs are relying on BSK to claim they are entitled to recover damages beyond those
pled in their complaints (Doc. 384, Pls. Oppn 24-25), there is no basis for that claim in law or fact, as
discussed in Murphy-Browns Insufficient Property Interests Reply (Doc. 404, 6-8). Moreover, this
argument is irrelevant to the legal question of whether annoyance damages are recoverable.
8
In connection with this discussion, Plaintiffs again suggest their counsel were somehow duped into
signing a stipulation to forego damages for diminished property or rental value in exchange for Murphy-
Browns agreement not to conduct interior inspections of individual Plaintiffs homes. (Doc. 384, Pls.
Oppn 1, 4.) As discussed in Murphy-Browns Opposition, there is no support for these specious
allegations. (Doc. 381, Murphy-Browns Oppn 13-14.) Plaintiffs were well aware of Murphy-Browns
long-held position regarding annoyance damages. (See, e.g., Doc. 19, Mem. in Support of Mot. to
Dismiss, Anderson v. Murphy-Brown, LLC, Case No. 7:14-CV-00183-BR, at 7-11.)
9
E-mails from non-lawyer consultants retained by Murphy-Brown are even less relevant and were
improperly referenced in Plaintiffs briefing regarding the interpretation of North Carolina statutory law.
(Doc. 384, Pls. Oppn 3 (attaching and discussing email from lobbying consultant).)

6
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Ct. App. Mar. 1, 2016). Accordingly, the Court should not consider such evidence in connection with this

Motion. 10

III. Because It Is Both Clarifying And Remedial, The Statute Codifies Long-Standing North
Carolina Common Law And Forecloses Plaintiffs Claims For Annoyance Damages.

As originally introduced on March 23, 2017, HB 467 provided that that act would be effective

when it becomes law and would apply to actions filed, arising, or pending on or after that date. (SOF

at 25(a).) On April 10, 2017, Representative Blust proposed an amendment that the act would only

apply to causes of action arising on or after the acts effective dat, and that it shall not affect pending

legislation (the Blust Amendment). (Id.) The Senate, however, further amended the Bill to provide

that the act would be effective when it becomes law and would expressly apply to causes of action

commenced or brought on or after that date. (Id.) This is the version of the Bill that became law on May

11, 2017. (Id.) Although the Legislature did not include express language to apply the Statute to pending

litigation, this Court may nonetheless apply the Statute here because it is both clarifying and remedial.

A. The Statute Applies To Plaintiffs Claims Because It Is A Clarifying Amendment.

North Carolina law distinguishes amendments that alter existing law from those that clarify it and

applies clarifying amendments to pending cases. See Ray v. N. Carolina Dept of Transp., 366 N.C. 1, 9,

727 S.E.2d 675, 681 (2012) (A clarifying amendment, unlike an altering amendment, is one that does not

change the substance of the law but instead gives further insight into the way in which the legislature

intended the law to apply from its original enactment.). Unlike altering amendments, clarifying

amendments apply to all pending cases regardless of whether the underlying claim arose before or after

the effective date of the amendment. Id. Courts may determine that an amendment is clarifying if the

statute previously failed to address the particular point of the amendment. Ferrell v. Dept of Transp.,

334 N.C. 650, 659, 435 S.E.2d 309, 315 (1993).

To determine whether the amendment clarifies the prior law or alters it requires a careful

comparison of the original and amended statutes. Ray, 366 N.C. at 10, 727 S.E.2d at 682 (quoting

10
An equal number of legislators took positions about HB 467 consistent with Murphy-Browns
interpretation, making this evidence neutral on balance. (Doc. 381, Murphy-Browns Oppn 15-16.)

7
Case 5:15-cv-00013-BR Document 447 Filed 05/26/17 Page 8 of 13
Ferrell, 334 N.C. 659, 435 S.E.2d at 315). For courts conducting this analysis, the ultimate question is

whether the amendment chang[ed] the substance of the original [statute]. Id. In Ray, the Court

concluded that an amendment specifying how the common law public duty defense applied in cases

brought under North Carolinas State Tort Claims Act (STCA) did not change the substance of the

STCAand therefore fell within the clarifying exception. Id. at 11-12, 727 S.E.2d at 683. So finding,

the Court relied on these facts: (1) the STCA did not specify whether and how the public duty doctrine

applied to tort claims against the state, (2) the amendment codified the common law discussing the

application of the public duty doctrine, and (3) the amendment was consistent with the STCA.

Here, as in Ray, (1) North Carolinas Right to Farm statute was previously silent on the issue of

the scope of recoverable damages in nuisance actions, (2) the new damages language merely codifies

North Carolinas common law barring recovery of annoyance damages in private nuisance cases, and (3)

the damages language is consistent with the purpose of the Right to Farm Act in protecting agricultural

operations. See N.C. Gen. Stat. 106-700 (stating that the purpose of the Act is to reduce the loss to the

State of its agricultural and forestry resources by limiting the circumstances under which an agricultural

or forestry operation may be deemed to be a nuisance). Just as the Ray court concluded that applying the

public duty doctrine amendment only prospectively would be inconsistent with the broad legislative goal

of promoting plaintiff recovery, applying the damages clarification to the Right to Farm Act only

prospectively would be inconsistent with the broad legislative goal of reducing the harm to farms from

nuisance lawsuits seeking unspecified and utterly subjective annoyance damages. See Ray, 366 N.C. at

11, 727 S.E.2d at 683 (explaining that refusing to apply the STCA amendment retroactively would

unnecessarily close a door to recovery that the STCA meant to open).

Thus, because the pre-amendment Right to Farm Act did not address annoyance damages, the

amended Statute should be construed as a clarifying amendment and be applied to preclude those

damages in this case. Ray, 366 N.C. at 10, 727 S.E.2d at 682 (If the statute initially fails expressly to

address a particular point but addresses it after the amendment, the amendment is more likely to be

clarifying than altering.) (quoting Ferrell, 334 N.C. 659, 435 S.E.2d at 315); Bryant v. United States,

8
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768 F.3d 1378, 1385 (11th Cir. 2014) (finding that North Carolina law draws a distinction between

legislation that simply fill[s] a hole left by the original statute and legislation that changes the

substantive meaning of a particular statute.) This is particularly true because the Statute is titled An Act to

Clarify the Remedies Available in Private Nuisance Actions Against Agriculture and Forestry Operations.

(SOF 25(a).) This title, which Plaintiffs have tellingly ignored in their prior briefing, conclusively

demonstrates that the Statute was intended to be (and is) clarifying in nature. See, e.g., Bowen v. Mabry,

572 S.E.2d 809, 811 (N.C. Ct. App. 2002) ([The clarifying] intent is manifest in the title of the Act

where the General Assembly notes its desire to clarify. . . .).

Moreover, the fact that the Legislature removed the language included in the Blust Amendment,

which would have expressly precluded the Statutes application to these cases, indicates an intent to allow

the Court to decide whether the Statute should be applied to these cases. Formyduval v. Bunn, 138 N.C.

App. 381, 388, 530 S.E.2d 96, 101 (N.C. Ct. App. 2000) (analyzing prior version of bill to determine

legislative intent); State ex. rel. Utilities Com. v. Queen City Coach Co., 233 N.C. 119, 123, 63 S.E.2d

113, 117 (1951) (same). This is particularly the case because the Blust Amendment was replaced with

language that expressly permits retroactive application to claims already accrued but not yet filed. (SOF

25(a) (2017 N.C. Sess. Laws ch. 11, 2.(a) provides that the act is effective when it becomes law and

applies to causes of action commenced or brought on or after that date.).) In other words, the failed

Blust Amendment provides evidence that the Legislature thoroughly considered a version of the Statute

that precluded retroactive application and then expressly rejected that option.

This interpretation is consistent with North Carolina law, which holds that decisions of whether to

apply a statute retroactively are to be made by the Courts. See, e.g., Bryant, 768 F.3d at 1385 (It is this

Courts job to determine whether an amendment is clarifying or altering.) (applying North Carolina law

on statutory interpretation) (quoting Ray, 366 N.C. at 9, 727 S.E.2d at 681); see also Ray, 366 N.C. at 10,

727 S.E.2d at 682 ([A]n effective date, standing alone, is insufficient information for our Court to

conclude, in carrying out the task of interpreting the statute, that the statute is a substantive change in the

law. Unless the legislature provides guidance more specific than a prospective effective date as to

9
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whether an amendment is clarifying or altering, the General Assembly cannot know what the Court will

ultimately conclude on that matter.). Statutes have been applied retroactively by North Carolina courts

even when there was no retroactive language in the statute. See Ray, 366 N.C. at 9-10, 727 S.E.2d at 681-

82; Ferrell, 334 N.C. at 661-62, 435 S.E.2d at 316-17. In making this determination, the Court should

consider the Legislatures rejection of the Blust Amendment and enactment of language permitting

retroactive application as evidence of legislative intent. Formyduval, 138 N.C. App. at 388, 530 S.E.2d at

101. Because the Statutes title and content are clarifying, this Court should apply it here.

B. The Statute Applies To Plaintiffs Claims Because It Is Remedial In Nature.

The remedial exception also applies to the Statutes language on damages. Under North Carolina

law, a remedial statute that neither gives nor takes away existing rights is presumed to operate

retroactively. Bailey v. State, 351 N.C. 440, 447, 526 S.E.2d 657, 662 (2000); Smith v. Mercer, 276

N.C. 329, 336-338, 172 S.E.2d 489, 493-95 (1970). The Statutes damages language does not change any

plaintiffs substantive right to press an action for private nuisance, nor does it impose any additional

burden on property owners with respect to their duty not to create a nuisance. As a result, it fits within

the remedial exception and should be applied here to preclude Plaintiffs from seeking annoyance

damages. See Rhyne v. K-Mart Corp., 358 N.C. 160, 170-71, 594 S.E.2d 1, 9 (2004) (holding that a

plaintiff does not have a vested right to recover punitive damages). Because the Statute is both clarifying

and remedial, this Court should apply it to foreclose Plaintiffs claims for annoyance damages. 11

CONCLUSION

For these reasons, as well as those expressed in Murphy-Browns Motion (Doc. 287-288) and

Opposition (Doc. 381), Murphy-Brown respectfully requests that this Court grant Murphy-Browns

Motion (Doc. 287), award partial summary judgment in its favor, enter the Proposed Order attached to

Murphy-Browns Motion (Doc. 287-1), and grant such other and further relief as this Court finds just.

11
Even if the Court does not apply the Statute as binding in these cases, the Court can still review it as
evidence of the legislators view of the existing common law on private agricultural nuisance damages.
See, e.g., State v. Fletcher, 782 S.E.2d at *23; (see also Doc. 381, Murphy-Browns Oppn 9-12).

10
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Dated: May 26, 2017 Respectfully submitted,

/s/ Mark E. Anderson

Mark E. Anderson (N.C. Bar No. 15764)
McGUIREWOODS LLP
2600 Two Hannover Square
Raleigh, North Carolina 27601
Telephone: (919) 755-6600
Facsimile: (919) 755-6699
Email: manderson@mcguirewoods.com

Eugene E. Mathews III (Va. Bar No. 36384)

Tennille J. Checkovich (Va. Bar No. 68028)
(By Special Appearance)
McGUIREWOODS LLP
One James Center
901 E. Cary Street
Richmond, Virginia 23219
Telephone: (804) 775-1000
Facsimile: (804) 775-1061
Email: mmathews@mcguirewoods.com
tcheckovich@mcguirewoods.com

Attorneys for Murphy-Brown LLC

11
Case 5:15-cv-00013-BR Document 447 Filed 05/26/17 Page 12 of 13
 IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
Master Case No. 5:15-CV-00013-BR

)
)
IN RE: NC SWINE FARM )
NUISANCE LITIGATION )
)
)

THIS DOCUMENT RELATES TO:

Anderson v. Murphy-Brown LLC, No. 7:14-cv-00183-BR
Artis v. Murphy-Brown LLC, No. 7:14-cv-00237-BR
Gillis v. Murphy-Brown LLC, No. 7:14-cv-00185-BR
McGowan v. Murphy-Brown LLC, No. 7:14-cv-00182-BR
McKiver v. Murphy-Brown LLC, No. 7:14-cv-00180-BR

CERTIFICATE OF SERVICE

I, Mark E. Anderson, do hereby certify that on the 26th day of May 2017, I caused a true and

correct copy of the above and foregoing DEFENDANT MURPHY-BROWN LLCS REPLY

MEMORANDUM IN FURTHER SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY

JUDGMENT ON AVAILABILITY OF ANNOYANCE DAMAGES CLAIMS to be filed with the

Clerk of the Court using the CM/ECF system, which will send notification of such filing (NEF) to all

CM/ECF registered attorneys indicated on the NEF, including counsel for Plaintiffs.

Respectfully submitted,

/s/ Mark E. Anderson

Mark E. Anderson (N.C. Bar No. 15764)
McGUIREWOODS LLP
2600 Two Hannover Square
Raleigh, North Carolina 27601
Telephone: (919) 755-6600
Facsimile: (919) 755-6699
Email: manderson@mcguirewoods.com

Attorney for Murphy-Brown LLC

Case 5:15-cv-00013-BR Document 447 Filed 05/26/17 Page 13 of 13