In this issue we will discuss two appellate cases, one in which the adjoiner was claiming damages for groundwater contamination and another where a minor, born out of wedlock, made claims as a sole intestate heir.

B S K Enters., Inc., v Beroth Oil Co.  (15-189) 3/1/2016

Adjoiners' Damages for Groundwater Contamination

The plaintiffs filed a complaint alleging that the defendant was strictly liable for contaminated groundwater under the plaintiffs' property, and sought damages to cover the cost of remediation or, in the alternative, of relocation of its business from the property. The court determined that when the cost of remediation greatly exceeds or is disproportionate to the diminution in value of affected property, the measure of damages should be the diminution in value to the property caused by the contamination. The opinion notes that plaintiffs have a compensable and protectable interest in the waters beneath their land and, therefore, have standing to bring an action to remediate groundwater contamination. In this case there was no evidence presented at trial supporting a defense by reason of a duty to mitigate and the opinion stated that the trial court did not err in denying the defendant's request to give a duty to mitigate instruction to the jury. The Court of Appeals also ruled that the trial court did not err in awarding damages for "...nuisance, trespass, and violation of NCOPHSCA [North Carolina's Oil Pollution and Hazardous Substances Control Act]," but not awarding damages for "stigma".

In re: Williams (15-619) 3/1/2016

Intestate Succession by Illegitimate Child

This was an appeal by a minor from an order holding he was not an heir to his putative father's (Williams's) estate. The minor unsuccessfully argued that the putative father had substantially complied with North Carolina's legitimization requirements and also challenged the constitutionality of the legitimization statute as applied. In a unanimous decision the Court of Appeals affirmed the trial court.

The putative father died in 2011and an estate was opened the following month. Three years later, the natural mother of the minor filed verified motions in the cause alleging that the minor was the sole heir to Williams's estate alleging that Williams was the minor's natural father. Attached to the verified motions were the minor's birth certificate and an Affidavit of Parentage for Child Born out of Wedlock proffered as evidence that the minor was the William's sole heir under N.C. Gen. Stat § 29-15(1). The administrators of Williams's estate filed an answer denying that Williams was the minor's natural father or that the minor was a beneficiary of Williams's estate.

The Clerk of Superior Court conducted a hearing on the motions and entered an order providing the following findings of fact and conclusions of law:

1. The minor child ... was born out of wedlock.

2. The putative father ... Williams had not legitimated the child pursuant to the provisions of G.S. 49-1 through 49-9 or the provision of G.S. 49-14 through 49-16. G.S. 29-19(b)(1).

3. The putative father ... Williams also did not comply with N.C.G.S. 29-19 by filing an appropriate written acknowledgment of paternity with the Clerk of Superior Court during his and the child's lifetimes.

4. No DNA testing for paternity has ever been performed.

5. An Affidavit of Parentage for Child Born out of Wedlock appears to have been signed at the hospital by ... Williams . . .

6. Attorneys for the minor child made no argument for legitimation pursuant to the statute-G.S. 29-19-rather a U.S. Constitution, 14th Amendment, equal protection argument was made asserting that the State statute was unconstitutional in that equal protection was denied to illegitimate children.

As a result of the findings of fact, the Clerk of Superior Court made the following conclusions of law:

1. The minor child, Kamari A. The minor, has not been legitimated pursuant to the laws of this State.

2. The State has a substantial and important interest for the just and orderly disposition of property at death.

3. This State's statutory requirements do not violate the Equal Protection or Due Process Clauses of the U.S. Constitution. Estate of Stern v. Stern, 66 N.C. App. 507, 311 S.E.2d 909 (1984), appeal dismissed, 471 U.S. 1011 (1985).

The Clerk of Superior Court held that the minor was not an heir of Williams's estate based upon these findings of fact and conclusions of law. The minor appealed to the Superior Court and at the subsequent hearing contended that the proffered evidence of witness testimony, a certificate of live birth, and a signed Affidavit of Parentage by Williams proved that he is the natural son and sole legal heir of Williams. Additionally, he argued at the heir determination hearing that he was denied due process and equal protection of the laws because he could not inherit from Williams due to his illegitimate status.

The trial court affirmed the Clerk's order making extensive findings of fact and, in particular, the following:

1. The applicable statute as to whether the minor child ... is a legitimate heir of ... Williams is N.C. Gen. Stat. § 29-19. . . .

12. The Court finds that an "Affidavit of Parent for Child Born Out of Wedlock" appears to have been signed by ... Williams.

13. The Affidavit was not filed with the Clerk of Court.

14. The form Affidavit of Parentage for Child Born out Wedlock explains on the back that "[t]he execution and filing of this Affidavit with the registrar does not affect inheritance rights unless it is also filed with the clerk of the court in the county where the father resides. . . ."

17 That [the minor] does not meet the requirements for intestate succession set forth in N.C. Gen. Stat. § 29-19(b).

18. The constitutionality of N.C. Gen. Stat. § 29-19 has been previously upheld in Mitchell v. Freuler, 297 N.C. 206, 254 S.E.2d 762 (1979) and Outlaw v. Planters Nat. Bank &Trust Co., 41 . N.C. App. 571, 255 S.E.2d 189 (1979) finding that the Equal Protection and Due Process Clauses of the Constitution are not violated because the statute is substantially related to the permissible state interests the statute was to promote.

19. The Mitchell court identified the state's interests as follows: "(1) to mitigate the hardships created by our former law (which permitted illegitimates to inherit only

from the mother and from each other); (2) to equalize insofar as practical the inheritance rights of legitimate and illegitimate children; and (3) at the time to safeguard the just and orderly disposition of a decedent's property and the dependability of titles passing under intestate laws." Mitchell at 216, 254 S.E.2d 762.

20. The legislature amended N.C. Gen. Stat. § 29-19(b) in 2013 to add a new and additional method to legitimate a child born out of wedlock through the use of a DNA test for a "person who died prior to or within one year after the birth of the child." N.C. Gen. Stat. § 29-19(b)(3) (2013). . . . 22. N.C. Gen. Stat. § 29-19(b)(3) does not apply to [the minor] as the provision only applies to estates of persons who died after June 26, 2013.

23. Counsel for [the minor] argues that N.C. Gen. Stat. N.C. Gen. Stat. § 29-19 is unconstitutional in as much as it denies equal protection to illegitimate children.

24. [The minor] contends that [section] 29-19(b)(3) is unconstitutional as applied because it discriminates against illegitimate children with no apparent grounds for doing so and creates a separate class of individuals for whom the statute will not assist with no apparent grounds by excluding persons born prior to June 26, 2013 from utilizing this section of the statute. . . .

27. The Court is aware that the effective date of the statute prevents The minor from using the provisions of N.C. Gen. Stat. § 29-19(b)(3) (2013) and that this creates a harsh result. However, the Court finds this does not create an equal protection or due process violation.

28. The Court accordingly finds that the Clerk's conclusions of law are supported by the findings of fact and that the Order is consistent with the conclusions of law and applicable law.

The appellant's argument that Williams's substantial compliance with N.C. Gen. Stat. § 29-19(b)(2) should establish the minor as a legal heir of Williams's estate. Citing Hayes v. Dixon, 83 N.C. App. 52, (1986) as mandating a strict compliance standard, the Court opined that failure to meet all of the requirements of N.C. Gen. Stat. § 29-19(b) and, in particular, the filing of an Affidavit of Parentage with the office of the clerk of the superior count where either the father or child resides left the child in an illegitimate status for intestate succession purposes.

The Court distinguishes the case supporting the appellant's challenges the constitutionality of section 29-19(b)(2) under the Equal Protection Clause of the U.S. by noting that cases involving statutes that create classifications based on illegitimate status and prevent an illegitimate child from acquiring child support are readily distinguishable from cases involving classifications affecting an illegitimate child's ability to inherit via intestate succession. "The latter type of case involves a substantial state interest in just and orderly disposition of property at death, while the former type of case does not...Pursuant to the case law of the U.S. Supreme Court, the N.C. Supreme Court and this Court, Appellant's request to declare N.C. Gen. Stat. § 29-19(b)(2) unconstitutional must be denied."

This case is significant to real property attorneys because it is not uncommon for the question of the reported existence of children of a decedent father born out of wedlock. The case reinforces the reasonable reliance of an opining attorney upon strict compliance win N.C.G.S. Section 29-15.