{ "id": 8527116, "name": "WRIGHTSVILLE WINDS TOWNHOUSES HOMEOWNERS' ASSOCIATION, Appellee/Plaintiff v. DOUGLAS E. MILLER and wife, ROXANNA B. MILLER, Appellant/Defendant", "name_abbreviation": "Wrightsville Winds Townhouses Homeowners' Ass'n v. Miller", "decision_date": "1990-10-30", "docket_number": "No. 905DC183", "first_page": "531", "last_page": "536", "citations": [ { "type": "official", "cite": "100 N.C. App. 531" } ], "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": "74 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "237 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605602 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/237/0088-01" ] }, { "cite": "82 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600532 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0382-01" ] }, { "cite": "140 S.E. 705", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "opinion_index": 0 }, { "cite": "194 N.C. 720", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617429 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nc/194/0720-01" ] }, { "cite": "55 S.E.2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "231 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628060 ], "year": 1949, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0047-01" ] }, { "cite": "302 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "763", "parenthetical": "emphasis in the original" } ], "opinion_index": 0 }, { "cite": "308 N.C. 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4706622 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0393-01" ] }, { "cite": "322 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 495", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4756490, 4751086, 4754065, 4759031, 4755005 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0495-01", "/nc/312/0495-03", "/nc/312/0495-05", "/nc/312/0495-04", "/nc/312/0495-02" ] }, { "cite": "320 S.E.2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "696" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523458 ], "year": 1984, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0537-01" ] }, { "cite": "349 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "83 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358555 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/83/0340-01" ] } ], "analysis": { "cardinality": 548, "char_count": 10273, "ocr_confidence": 0.77, "pagerank": { "raw": 2.688131127425013e-07, "percentile": 0.8272630952615384 }, "sha256": "e7f044c1f777048a624bb8467337adb1fc30dbafdb0dcf25da4db861d22bb36d", "simhash": "1:8d60938e33324c76", "word_count": 1648 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge PHILLIPS concur." ], "parties": [ "WRIGHTSVILLE WINDS TOWNHOUSES HOMEOWNERS\u2019 ASSOCIATION, Appellee/Plaintiff v. DOUGLAS E. MILLER and wife, ROXANNA B. MILLER, Appellant/Defendant" ], "opinions": [ { "text": "ARNOLD, Judge.\nAlthough defendant brings forth a number of assignments of error, the essence of his appeal is that the evidence presented did not support the trial court\u2019s finding that the disputed structures were built on common elements of the condominium property. Specifically, defendant attacks the testimony of Mr. Evans, a layman and homeowner in the Association. Mr. Evans\u2019 testimony conflicted with statements of defendant\u2019s witness, a land surveyor, who testified that the structures were built on limited common areas. Defendant argues that in light of the testimony of his \u201cexpert,\u201d the testimony of the layman cannot constitute competent, credible testimony. We disagree.\nFirst, we find no indication in the record that Mr. Miller objected to Mr. Evans\u2019 testimony or to Mr. Evans\u2019 credibility as a witness concerning the location of the common elements. Further, defendant was afforded full and free cross-examination of Mr. Evans, an examination which filled one-third of the transcript of the proceeding.\nLay opinion is admissible when it is rationally based on the perception of the witness and is helpful for a clear understanding of the determination of a fact in issue. N.C.R. Evid. 701. Furthermore, the testimony of a lay witness is admissible concerning the location of a boundary in a boundary dispute case. Welborn v. Roberts, 83 N.C. App. 340, 349 S.E.2d 886 (1986).\nIn reviewing the grant of a preliminary injunction, an appellate court may weigh the evidence and find facts for itself. Robins & Weill v. Mason, 70 N.C. App. 537, 540, 320 S.E.2d 693, 696, disc. review denied, 312 N.C. 495, 322 S.E.2d 559 (1984). Nevertheless, a decision by the trial court to issue or deny an injunction will be upheld if there is ample competent evidence to support the decision, even though the evidence may be conflicting and the appellate court could substitute its own findings. Id. We view Mr. Evans\u2019 testimony as competent and hold the trial court\u2019s finding that the structures were built on the common elements supported by the evidence.\nDefendant also argues that even if the evidence shows the structures were built on the common elements, plaintiff has failed to demonstrate how the tenants were harmed by the structures. To receive a preliminary injunction, plaintiff must show a likelihood of success on the merits and some type of irreparable harm. A.E.P. Industries, Inc. v. McClure, 308 N.C. 393, 302 S.E.2d 754 (1983). This standard, however, does not require a showing that the injury is beyond repair, \u201cbut that the injury is one to which the complainant should not be required to submit or the other party permitted to inflict . . . .\u2019\u2019Id. at 407, 302 S.E.2d at 763 (emphasis in the original) (quoting Barrier v. Troutman, 231 N.C. 47, 50, 55 S.E.2d 923, 925 (1949)). Plaintiff clearly has the right to expect all its tenants to abide by the Association\u2019s bylaws and Declaration.\nAlthough there is some confusion in the briefs, plaintiff also sought a permanent mandatory injunction in this action. While a preliminary injunction is designed to preserve the status quo until a hearing on the merits is conducted, a mandatory injunction is used to carry into effect the final judgment. See First Nat. Bank v. The Peoples Bank, 194 N.C. 720, 140 S.E. 705 (1927). As defendant admits, the Order here was based on an adversarial hearing, it granted all the relief prayed for in the Complaint, awarded attorney\u2019s fees and thus constituted a final determination. A mandatory injunction is the proper remedy to enforce a restrictive covenant, Ingle v. Stubbins, 240 N.C. 382, 82 S.E.2d 388 (1954), and to restore the status quo. Seaboard Air Line R.R. v. Atlantic Coast Line R.R., 237 N.C. 88, 74 S.E.2d 430 (1953).\nFinally, defendant argues the trial judge erred in ordering him to pay plaintiff\u2019s attorney\u2019s fees. However, Article VIII, Section 5 of the Association\u2019s bylaws provides that an owner must pay the Association\u2019s attorney\u2019s fees if an action is brought against an owner and the result is a judgment for the Association. As noted above, the action by the trial court constituted a final judgment. Thus, the order to pay plaintiff\u2019s attorney\u2019s fees was properly entered.\nWe have examined defendant\u2019s other assignments of error and, after a thorough review of the briefs and record, found them to be without merit.\nAffirmed.\nChief Judge HEDRICK and Judge PHILLIPS concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Smith and Smith, by W. G. Smith and Barbara Smith, for plaintiff appellee.", "Ryals, Jackson and Mills, by Anthony A. Saffo, for defendant appellant." ], "corrections": "", "head_matter": "WRIGHTSVILLE WINDS TOWNHOUSES HOMEOWNERS\u2019 ASSOCIATION, Appellee/Plaintiff v. DOUGLAS E. MILLER and wife, ROXANNA B. MILLER, Appellant/Defendant\nNo. 905DC183\n(Filed 30 October 1990)\n1. Deeds \u00a7 19.5 (NCI3d)\u2014 condominium \u2014 common areas \u2014action to require removal of structures \u2014evidence sufficient\nThe evidence presented in an action for an injunction requiring defendants to remove certain structures on condominium grounds supported the court\u2019s finding that the disputed structures were built on common elements of the condominium property where plaintiff presented testimony from a layman and homeowner in the association and defendant presented a surveyor who testified that the structures were built on limited common areas. Defendant did not object to the testimony of plaintiff\u2019s witness and was afforded full and free cross-examination; moreover, a decision by the trial court to issue or deny an injunction will be upheld if there is ample competent evidence to support the decision, even though the evidence may be conflicting.\nAm Jur 2d, Condominiums and Co-operative Apartments \u00a7\u00a7 33, 38, 39; Injunctions \u00a7 353.\n2. Injunctions \u00a7 2.1 (NCI3d)\u2014 condominium \u2014 removal of structures from common areas \u2014irreparable harm\nPlaintiffs in an action for an injunction requiring removal of certain structures from common areas of a condominium property presented evidence of irreparable harm in that the injury does not have to be beyond repair, but one to which the complainants should not be required to submit or the other party permitted to inflict. Plaintiff has the right to expect all its tenants to abide by the association\u2019s bylaws and declaration.\nAm Jur 2d, Injunctions \u00a7\u00a7 29-31.\n3. Injunctions \u00a7 3 (NCI3d)\u2014 condominium common areas \u2014 removal of structures \u2014 mandatory preliminary injunction\nA \u201cMandatory Preliminary Injunction\u201d requiring removal of certain structures from condominium common areas was affirmed where the order was based on an adversarial hearing, granted all the relief prayed for in the complaint, and thus constituted a final determination.\nAm Jur 2d, Injunctions \u00a7\u00a7 21, 29-31.\n4. Attorneys at Law \u00a7 60 (NCI4th(\u2014 condominium \u2014 removal of structures from common areas \u2014 attorney fees\nThe trial court did not err in an action to require that certain structures be removed from condominium common areas by ordering defendant to pay plaintiff homeowners\u2019 association\u2019s attorney fees where the bylaws provide that an owner must pay the association\u2019s attorney fees if an action is brought against the owner and the result is a judgment for the association. The action by the trial court here constituted a final judgment.\nAm Jur 2d, Injunctions \u00a7 309.\nAPPEAL by defendant from judgment entered 16 August 1989 by Judge C. Rice in New HANOVER County District Court. Heard in the Court of Appeals 19 September 1990.\nPlaintiff Wrightsville Winds Townhouses Homeowners\u2019 Association (\u201cAssociation\u201d) filed this Complaint on 30 January 1989 against defendants seeking a preliminary and permanent injunction requiring defendants to remove certain structures built on the plaintiff\u2019s premises on the grounds that the structures were erected on common property areas in violation of the Association\u2019s rules and bylaws. Following a hearing on the claim, Judge Rice entered a \u201cMandatory Preliminary Injunction\u201d on 16 August 1989, ordering Mr. Miller to remove a shower roof and stall, a partition at the end of the parking area and a partition between his parking area and the unit next door. Mr. Miller was ordered to pay plaintiff\u2019s attorney\u2019s fees in the sum of $1,900. On the same date, plaintiff dismissed its action without prejudice as to Mrs. Miller. Mr. Miller appealed.\nThe record and briefs relate the following facts:\nMr. and Mrs. Miller became record owners of Unit 8B by warranty deed filed in September 1987. The deed was subject to the \u201cDeclaration of Condominium\u201d (\u201cDeclaration\u201d), which also was properly recorded. The Declaration provides in part:\nA. [t]he common elements shall include . . .\n(1) All of the real property ....\n(2) All . . . exterior walls ....\n(4) All yard areas, parking and drive areas, and sidewalks.\n(6) All other portions of the real property and the improvements thereon which are not specifically part of the units themselves ....\nIn addition, paragraph 16B of the Declaration states: \u201cThe owner shall be entitled to use the common elements in accordance with the purpose for which they are intended, but no such use shall hinder or encroach upon the lawful rights of the owner of the other units.\u201d\nDuring the spring of 1988, the Millers constructed a fence along the rear property line of the building and up to Unit 8B, an enclosure and roof onto the outdoor shower attached to Unit 8B, a partition in the parking area of Unit 8B and an enclosure across the rear of Unit 8B\u2019s parking area.\nAt the 4 August 1989 hearing concerning the injunction, Thomas Evans, a -homeowner in the Association, testified to the specific provisions of the Declaration that the Millers had violated. Mr. Evans stated that the items built on common elements violated the Declaration. Mr. Evans also testified to provisions of the Declaration that describe the process for amending the Declaration. The Declaration was never amended to allow the building of personal structures on the common elements.\nDefendant called Jack Stocks, the original land surveyor who had prepared the plans of the town houses, to testify on their behalf. Mr. Stocks had checked the site in question on the day prior to the hearing and had taken measurements to confirm his testimony. Mr. Stocks testified that the structures were built on \u201climited common elements\u201d and did not encroach on any common elements.\nSmith and Smith, by W. G. Smith and Barbara Smith, for plaintiff appellee.\nRyals, Jackson and Mills, by Anthony A. Saffo, for defendant appellant." }, "file_name": "0531-01", "first_page_order": 563, "last_page_order": 568 }