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By Lynn Hotaling
A landmark erosion case was back in a Jackson County courtroom
last week after an appeals court mandated a second trial on the
amount of damages a Jackson County family should receive after
upstream golf course development harmed their private lake.
More than three years after a local jury awarded a Cashiers-area
family $500,000 to for sediment pollution of their downstream
lake, a second panel Nov. 7 mandated developers pay $775,000 in
damages
Both the March 2000 verdict and last week's decision are thought
to be among the largest jury awards ever handed down in Jackson
County, said Frank Watson, Jackson County Clerk of Court.
Plaintiff Whiteside Estates, a corporation owned by David Young
and his family, proved to the jury's satisfaction (for the second
time) that construction at Highlands Cove, a golf course and residential
community upstream, caused serious damage to 18-acre Young Lake.
Both the Youngs' property and Highlands Cove are located near
the intersection of U.S. 64 and Norton Road between Cashiers and
Highlands in southern Jackson County.
As was the case in March 2000, last week's jury considered awarding
the Youngs even more money, said juror Sally Wilson of Greens
Creek, and the actual award was a compromise. Damages in excess
of $1 million were favored by four or five members of the panel,
Wilson said, but one juror did not want to award any more than
some $237,000 mentioned by the defendant's attorney, Elizabeth
Partlow, during her closing statement.
Last week's trial in Jackson County Superior Court was only to
determine the damages due the plaintiff. The defendant's liability
was established after the 2000 trial, Judge Ronald Payne told
the jury last Thursday.
"It is absolutely necessary that you understand you are trying
to decide whether Whiteside Estates is entitled to recover damages,"
Payne said. "Liability is already established."
The jury in the 2000 trial found in favor of the plaintiff on
all three of the suits issues: trespass – allowing silt,
contaminants and sediment to "cross into, enter into and
pollute" Grassy Camp Branch and Young Lake; nuisance –
interfering with the use and enjoyment of the Youngs' property;
and violating the Sediment Pollution Control Act of 1973, a state
statute that requires controls "sufficient to retain sediment
generated by the land-disturbing activity within the boundaries
of the tract during construction and development of said tract."
Highlands Cove appealed that verdict and the resultant $500,000
damage award to the N.C. Court of Appeals, which upheld the verdict
in favor of the plaintiff but mandated a new trial on damages,
citing insufficient evidence in the record to support the $500,000
damage award, plaintiff's attorney Billy Clarke of Asheville said.
During his closing statement Thursday, Clarke told jurors that
the Youngs were entitled to about $1.1 million to dredge and restore
their lake and stream and some $300,000 to take preventive measures
to prevent additional sedimentation in the future.
He acknowledged that it was up to Whiteside Estates to prove to
the jury through the "greater weight" of its evidence
that the plaintiff was entitled to that much money to reclaim
their lake.
"Greater weight of evidence does not refer to the amount
of evidence but its quality," Clarke said. "I believe
we have both."
Juror Wilson said Clarke's statement was true for her and the
other jurors who wanted to award the Youngs some $1.4 million.
"We were all overwhelmed by the evidence the plaintiff's
attorney presented," she said Friday.
Pictures entered into evidence that showed a sparkling, clear
lake in 1998 and a muddy, brown one three months after golf course
construction began were compelling, Wilson said, as was a report
presented by plaintiff expert witness Ken Wagner.
"We liked Dr. Wagner's report more," she said. "He
had done more and gave more scientific evidence."
Jurors were asked to decide what amount the Youngs were entitled
to in compensation for past damages and what amount, if any, they
were entitled to receive to prevent future damages.
Members of the jury awarded the plaintiff $575,000 in damages
and an additional $200,000 to fund measures to prevent future
damages.
Plaintiff Young indicated he was pleased with last week's verdict.
"We are pleased with the outcome of the second trial and
look forward to fixing the damage, if possible, to the creek and
lake and will continue to monitor the water quality coming onto
our property from Highlands Cove," Young said.
Highlands Cove can appeal the decision "and probably will,"
Clarke said.
"I believe there is sufficient evidence in the record this
time to support the damage award," Clarke said. "In
fact, the plaintiff's evidence would have supported a larger damage
award."
Defendant Highlands Cove was represented by Partlow of Columbia,
S.C., and Highlands attorney Zeke Sossamon. Neither had returned
the newspaper's calls by press time Wednesday.
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