{ "id": 8354330, "name": "MARK and BETSEY ELLIOTT, KIM and LEWIS CARAGANIS, WAYNE THORN and ROBIN WHITTEN, JOEY HOWELL and LISA NEAL, PAT WESLEY and DAVID GREEN, Plaintiffs v. JAMES and MARY MUEHLBACH, Defendants", "name_abbreviation": "Elliott v. Muehlbach", "decision_date": "2005-10-18", "docket_number": "No. COA04-1128", "first_page": "709", "last_page": "716", "citations": [ { "type": "official", "cite": "173 N.C. App. 709" } ], "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": "589 S.E.2d 896", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "901", "parenthetical": "\"The fact that Vaughn's expert testimony . . . was based on information related to her by a third party does not affect the admissibility of her opinion, but instead goes to the weight of the evidence.\"" } ], "opinion_index": 0 }, { "cite": "162 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8914681 ], "year": 2004, "pin_cites": [ { "page": "72", "parenthetical": "\"The fact that Vaughn's expert testimony . . . was based on information related to her by a third party does not affect the admissibility of her opinion, but instead goes to the weight of the evidence.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/162/0064-01" ] }, { "cite": "377 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528005 ], "year": 1989, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0269-01" ] }, { "cite": "126 S. Ct. 47", "category": "reporters:federal", "reporter": "S. Ct.", "year": 2005, "opinion_index": 0 }, { "cite": "163 L. Ed. 2d 79", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "604 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "903-04", "parenthetical": "citing Howerton, 358 N.C. at 458, 597 S.E.2d at 686" } ], "opinion_index": 0 }, { "cite": "359 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3803286 ], "year": 2004, "pin_cites": [ { "page": "160", "parenthetical": "citing Howerton, 358 N.C. at 458, 597 S.E.2d at 686" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0131-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "686" }, { "page": "686" }, { "page": "688" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "458" }, { "page": "458" }, { "page": "461" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "572 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511169, 1511387, 1511370, 1511183, 1511131 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0434-04", "/nc/356/0434-05", "/nc/356/0434-02", "/nc/356/0434-03", "/nc/356/0434-01" ] }, { "cite": "567 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "178" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 697", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9082078 ], "year": 2002, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0697-01" ] }, { "cite": "571 S.E.2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "356 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511539 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/356/0315-01" ] }, { "cite": "553 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "437", "parenthetical": "\"Once plaintiff establishes that the invasion or intrusion is unreasonable, plaintiff must prove the invasion caused substantial injury to its property interest.\"" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11359409 ], "year": 2001, "pin_cites": [ { "page": "456", "parenthetical": "\"Once plaintiff establishes that the invasion or intrusion is unreasonable, plaintiff must prove the invasion caused substantial injury to its property interest.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0449-01" ] }, { "cite": "124 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1962, "pin_cites": [ { "page": "814" }, { "page": "814" }, { "parenthetical": "emphasis added" }, { "page": "815" } ], "opinion_index": 0 }, { "cite": "256 N.C. 611", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574237 ], "weight": 2, "year": 1962, "pin_cites": [ { "page": "618" }, { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0611-01" ] }, { "cite": "140 S.E.2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "390", "parenthetical": "\"A race track is not a nuisance per se. But its operation may, under certain circumstances, be a nuisance per accidens, i.e., a nuisance in fact.\"" } ], "opinion_index": 0 }, { "cite": "263 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572614 ], "year": 1965, "pin_cites": [ { "page": "690", "parenthetical": "\"A race track is not a nuisance per se. But its operation may, under certain circumstances, be a nuisance per accidens, i.e., a nuisance in fact.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0686-01" ] }, { "cite": "77 S.E.2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1953, "pin_cites": [ { "page": "687", "parenthetical": "internal citations omitted" }, { "page": "689" } ], "opinion_index": 0 }, { "cite": "238 N.C. 185", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602245 ], "year": 1953, "pin_cites": [ { "page": "191", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/238/0185-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] }, { "cite": "594 S.E.2d 796", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "799", "parenthetical": "quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 703", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8920472 ], "year": 2004, "pin_cites": [ { "page": "707", "parenthetical": "quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0703-01" ] } ], "analysis": { "cardinality": 834, "char_count": 17700, "ocr_confidence": 0.741, "pagerank": { "raw": 4.417441169658951e-08, "percentile": 0.2771696342141955 }, "sha256": "929981c2be8cd3158161b50dc16d0bc3176fedb7580fed183e16f39d29e6853d", "simhash": "1:2b78f4203a1fab70", "word_count": 2850 }, "last_updated": "2023-07-14T20:45:28.578783+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and CALABRIA concur." ], "parties": [ "MARK and BETSEY ELLIOTT, KIM and LEWIS CARAGANIS, WAYNE THORN and ROBIN WHITTEN, JOEY HOWELL and LISA NEAL, PAT WESLEY and DAVID GREEN, Plaintiffs v. JAMES and MARY MUEHLBACH, Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiffs Mark and Betsey Elliott, Kim and Lewis Caraganis, Wayne Thom and Robin Whitten, Joey Howell and Lisa Neal, and Pat Wesley and David Green, brought suit against defendants James and Mary Muehlbach, alleging that defendants\u2019 constmction and use of a racetrack for all terrain vehicles (\u201cATVs\u201d) on defendants\u2019 property constituted a nuisance. Defendants appeal from the trial court\u2019s order granting a permanent injunction prohibiting defendants\u2019 operation of the racetrack. Because we hold that the trial court\u2019s order failed to make sufficient findings of fact to support its conclusion that the track was a nuisance per accidens, we reverse and remand for additional findings of fact.\nFacts\nThe trial court made the following findings of fact that have not been challenged on appeal. The parties to this action all live on multiple-acre tracts of land in an unzoned rural area in Chatham County. As of 2001, each of the plaintiffs had lived in their homes for at least nine years. They were attracted to the area because of the relative peace and quiet, seclusion, and isolation.\nDefendants\u2019 son rode ATVs in the area for a number of years and, in approximately 1998, began competing in ATV races. At the time of the trial, he had become a professional ATV racer. In late 2001, defendants constructed a dirt racetrack on their property. The track, which took up approximately three cleared acres of defendants\u2019 property, had both an outer loop and an inner loop, with the outer loop measuring approximately 1/5 to 1/4 of a mile in distance. In November 2001, defendants also obtained a building permit to construct a 16 by 20 foot building with restrooms next to the track. The permit was for a business with an \u201copen air arena\u201d for up to 50 spectators, with parking for up to 50 vehicles. Only the foundation for the building had been built at the time of trial and defendants indicated that they had abandoned the building project. The permits, however, remain in effect.\nAlthough the track had not been fully completed, defendants began to run ATVs on the track in early December 2001. Plaintiffs filed suit on 5 November 2002, alleging claims for nuisance and trespass and seeking an injunction against use of the racetrack. The trial court issued a preliminary injunction on 26 January 2003, pending resolution of the lawsuit. On 22 December 2003, following a bench trial, the trial court entered a final judgment concluding \u201cthat the Defendants\u2019] use of the Track and operation of ATVs and testing of ATVs ... on the Track constitutes a private nuisance per acci-dens in fact.\u201d The court further concluded \u201cthat the only reasonable and sure means for eliminating the nuisance caused by use of the Track is to ban its use entirely by any ATV vehicle, whether 2 wheel, 3 wheel, or 4 wheel.\u201d The court, therefore, entered a permanent injunction barring defendants from operating or allowing others to operate any ATV on the track or from constructing a new track or similar facility on their property. Defendants have appealed from the trial court\u2019s decision.\nDiscussion\n\u201c \u2018It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in.light of such facts.\u2019 \u201d Keel v. Private Bus., Inc., 163 N.C. App. 703, 707, 594 S.E.2d 796, 799 (2004) (quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). We reject defendants\u2019 suggestion that we apply a different standard of review that would permit us to substitute our own view of the facts.\nPrivate nuisances are either nuisances per se or nuisances per accidens:\nA nuisance per se or at law is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances per accidens or in fact are those which become nuisances by reason of their location, or by reason of the manner in which they are constructed, maintained, or operated.\nMorgan v. High Penn Oil Co., 238 N.C. 185, 191, 77 S.E.2d 682, 687 (1953) (internal citations omitted). \u201cA person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury.\u201d Id. at 194, 77 S.E.2d at 689.\nIn this case, plaintiffs contended and the trial court concluded that defendants\u2019 ATV track was a private nuisance per accidens. See Hooks v. Int\u2019l Speedways, Inc., 263 N.C. 686, 690, 140 S.E.2d 387, 390 (1965) (\u201cA race track is not a nuisance per se. But its operation may, under certain circumstances, be a nuisance per accidens, i.e., a nuisance in fact.\u201d). In Watts v. Pama Mfg. Co., 256 N.C. 611, 618, 124 S.E.2d 809, 814 (1962), the Supreme Court held that in order to establish a prima facie case of nuisance per accidens, a plaintiff must prove: (1) that the defendant\u2019s use of its property, under the circumstances, unreasonably invaded or interfered with the plaintiff\u2019s use and enjoyment of the plaintiff\u2019s property; and (2) because of the unreasonable invasion or interference, the plaintiff suffered substantial injury. See also Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 456, 553 S.E.2d 431, 437 (2001) (\u201cOnce plaintiff establishes that the invasion or intrusion is unreasonable, plaintiff must prove the invasion caused substantial injury to its property interest.\u201d), disc. review denied, 356 N.C. 315, 571 S.E.2d 220 (2002).\nDefendants first contend that the trial court\u2019s findings of fact fail to properly address the first element. In Watts, our Supreme Court stressed that the proper focus with respect to the reasonableness of the interference is \u201cnot whether a reasonable person in plaintiffs\u2019 or defendant\u2019s position would regard the invasion as unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.\u201d Watts, 256 N.C. at 618, 124 S.E.2d at 814. The Court added: \u201cRegard must be had not only for the interests of the person harmed but also for the interests of the defendant, and for the interests of the community.\u201d Id. After acknowledging that what is reasonable in one locality and in one set of circumstances may be unreasonable in another, the Court held:\nThe circumstances which are to be considered by [the factfinder] in determining whether or not defendant\u2019s conduct is unreasonable include: the surroundings and conditions under which defendant\u2019s conduct is maintained, the character of the neighborhood, the nature, utility and social value of defendant\u2019s operation, the nature, utility and social value of plaintiffs\u2019 use and enjoyment which have been invaded, the suitability of the locality for defendant\u2019s operation, the suitability of the locality for the use plaintiffs make of their property, the extent, nature and frequency of the harm to plaintiffs\u2019 interest, priority of occupation as between the parties, and other considerations arising upon the evidence.\nId. (emphasis added). While no single factor is decisive, \u201call the circumstances in the particular case must be considered.\u201d Id.\nDefendants argue that the trial court\u2019s findings of fact do not acknowledge the distinction between \u201ca reasonable person in plaintiffs\u2019 or defendant\u2019s position\u201d and \u201creasonable persons generally, looking at the whole situation impartially and objectively,\u201d as required by Watts. Id. We agree with defendants.\nThe trial court made only one finding of fact regarding the reasonableness inquiry: \u201cThe operation of ATVs on the Track, the Defendant\u2019s [sic] operation and testing of Racing ATVs on the Track and any running of any ATV type vehicle on the Track has on multiple occasions, substantially and unreasonably interfered with the plaintiffs us [sic] and enjoyment of their properties . . . .\u201d The trial court never made a finding on the question \u201cwhether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable.\u201d Id. The order focused only on the reasonableness from the perspective of the plaintiffs rather than on the broader issue mandated by Watts. While the trial court made findings of fact on some of the circumstances identified by the Watts Court, other pertinent circumstances were' omitted.\nWe are, therefore, compelled to hold that the trial court\u2019s order contains insufficient findings of fact to support its conclusion of law. In light of this holding, we remand this case to the trial court for additional findings on the reasonableness issue as defined by Watts, including the circumstances pertinent to that issue set forth in Watts or arising out of the evidence.\nWith respect to the second element of nuisance per accidens\u2014 the substantiality of the injury \u2014 the Court in Watts held:\nBy substantial invasion is meant an invasion that involves more than slight inconvenience or petty annoyance. The law does not concern itself with trifles. Practically all human activities, unless carried on in a wilderness, interfere to some extent with others or involve some risk of interference, and these interferences range from mere trifling annoyances to serious harms. Each individual in a community must put up with a certain amount of annoyance, inconvenience or interference, and must take a certain amount of risk in order that all may get on together. But if one makes an unreasonable use of his property and thereby causes another substantial harm in the use and enjoyment of his, the former is liable for the injury inflicted.\nId. at 619, 124 S.E.2d at 815. Defendants do not dispute that the trial court made the necessary findings of fact, but contend that those findings are not supported by competent evidence. We disagree.\nPlaintiffs\u2019 testimony and exhibits provide ample support for the trial court\u2019s findings of fact. Defendants, however, contend that the findings are unsupported because of the lack of any \u201cobjective measurement of the sound generated by ATVs operating on the track,\u201d the failure of plaintiffs to offer testimony from disinterested or impartial witnesses, and defendants\u2019 characterization of plaintiffs\u2019 testimony as exaggerated. These factors all relate to the credibility and weight to be afforded the testimony. Such questions must be resolved by the trial court and are not a basis for overturning a finding of fact. Cartin v. Harrison, 151 N.C. App. 697, 703, 567 S.E.2d 174, 178, disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). We, therefore, overrule defendants\u2019 assignments of error contending that the trial court\u2019s findings of fact are not supported by competent evidence.\nFinally, defendants assign error to the trial court\u2019s denial of their motion to strike the testimony of plaintiffs\u2019 expert witness, Dr. Noral Stewart. Dr. Stewart is an expert in acoustics and noise control and in community and environmental noise. He testified about the topography of the plaintiffs\u2019 and defendants\u2019 rural property and how it might affect the sounds emanating from defendants\u2019 track. He also offered opinions that the engine noise from the track would constitute the \u201cdominant\u201d sound in the neighborhood, that the nature of that sound could cause substantial annoyance to neighbors regardless of the decibel level, and that no controls could be implemented that would prevent the track from being the dominant noise source.\nA trial court\u2019s ruling on the admissibility of an expert\u2019s opinion will not be reversed on appeal absent a showing of abuse of discretion. Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004). \u201c[U]nder North Carolina law, a trial court that is considering whether to admit proffered expert testimony pursuant to North Carolina Rule of Evidence 702 must conduct a three-step inquiry to determine: (1) whether the expert\u2019s proffered method of proof is reliable, (2) whether the witness presenting the evidence qualifies as an expert in that area, and (3) whether the evidence is relevant.\u201d State v. Morgan, 359 N.C. 131, 160, 604 S.E.2d 886, 903-04 (2004) (citing Howerton, 358 N.C. at 458, 597 S.E.2d at 686), cert. denied, - U.S. -, 163 L. Ed. 2d 79, 126 S. Ct. 47 (2005).\nOn appeal, defendants do not address Howerton or Morgan. Nor do they cite any case law authority to support their contention that Dr. Stewart\u2019s testimony was inadmissible. They instead rely only on a general citation to Rules 602 and 703 of the North Carolina Rules of Evidence. Rule 602 provides that \u201c[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.\u201d As this Court has previously pointed out, \u201c[i]t is well settled that an expert witness need not testify from firsthand personal knowledge, so long as the basis for the expert\u2019s opinion is available in the record or on demand.\u201d State v. Purdie, 93 N.C. App. 269, 276, 377 S.E.2d 789, 793 (1989). See also State v. McCall, 162 N.C. App. 64, 72, 589 S.E.2d 896, 901 (2004) (\u201cThe fact that Vaughn\u2019s expert testimony . . . was based on information related to her by a third party does not affect the admissibility of her opinion, but instead goes to the weight of the evidence.\u201d). Defendants\u2019 objection based on Rule 602 is, therefore, without merit.\nWith respect to Rule 703, defendants argue that Dr. Stewart\u2019s testimony should have been excluded because Dr. Stewart admitted that he had not personally heard any of the sounds emanating from the track or heard defendants\u2019 ATVs in operation and he had not measured their decibel levels. Rule 703 requires only that the facts or data upon which an expert bases his opinion be \u201cof a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.\u201d N.C.R. Evid. 703. Dr. Stewart testified that he viewed the racetrack (although not while it was in use); reviewed aerial photos and topographical maps of the area; listened to recordings of the sound generated by the ATVs; and discussed the racetrack noise with several of the plaintiffs. Defendants have made no showing and presented no argument' suggesting that this information was an inadequate basis under Rule 703 for Dr, Stewart\u2019s opinions. Without such a showing, defendants\u2019 arguments represent only \u201clingering questions or controversy concerning the quality of the expert\u2019s conclusions [and] go to the weight of the testimony rather than its admissibility.\u201d Howerton, 358 N.C. at 461, 597 S.E.2d at 688. The trial court, therefore, did not err in denying defendants\u2019 motion to strike Dr. Stewart\u2019s testimony.\nConclusion\nWe hold that the trial court did not err in admitting Dr. Stewart\u2019s testimony and defendants have pointed to no other possible trial error. We further hold that the trial court\u2019s findings of fact appealed by defendants are supported by competent evidence, but that the trial court\u2019s findings are inadequate to support its conclusion of law that defendants\u2019 racetrack constitutes a nuisance per accidens. Accordingly, we reverse and remand for further findings of fact.\nReversed and remanded.\nJudges TIMMONS-GOODSON and CALABRIA concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Poyner & Spruill, LLP, by Keith H. Johnson, for plaintiffs-appellees.", "Stark Law Group, PLLC, by Thomas H. Stark and W. Russell Congleton, for defendants-appellants." ], "corrections": "", "head_matter": "MARK and BETSEY ELLIOTT, KIM and LEWIS CARAGANIS, WAYNE THORN and ROBIN WHITTEN, JOEY HOWELL and LISA NEAL, PAT WESLEY and DAVID GREEN, Plaintiffs v. JAMES and MARY MUEHLBACH, Defendants\nNo. COA04-1128\n(Filed 18 October 2005)\n1. Nuisance\u2014 per accidens \u2014 findings of fact \u2014 reasonableness\nThe trial court erred in a nuisance case by concluding its findings of fact adequately supported its conclusion of law that defendants\u2019 racetrack constitutes a nuisance per accidens, and the case is remanded for further findings of fact, because the trial court\u2019s findings of fact do not acknowledge the distinction between a reasonable person in plaintiffs\u2019 or defendants\u2019 position and reasonable persons generally looking at the whole situation impartially and objectively.\n2. Nuisance\u2014 per accidens \u2014 findings of fact \u2014 substantiality of injury\nThe trial court did not err in a nuisance case by its findings of fact regarding the substantiality of the injury, and the findings are supported by competent evidence because: (1) plaintiffs\u2019 testimony and exhibits provide ample support for the trial court\u2019s findings; and (2) factors including the objective measurement of the sound generated by ATVs operated on the track, the failure of plaintiffs to offer testimony from disinterested or impartial witnesses, and defendants\u2019 characterization of plaintiffs\u2019 testimony as exaggerated all relate to the credibility and weight to be afforded the testimony which must be resolved by the trial court and are not a basis for overturning a finding of fact.\n3. Evidence\u2014 acoustics \u2014 expert testimony \u2014 motion to strike\nThe trial court did not abuse its discretion in a nuisance case by denying defendants\u2019 motion to strike the testimony of plaintiffs\u2019 expert witness in acoustics and noise control, because: (1) defendants\u2019 objection based on N.C.G.S. \u00a7 8C-1, Rule 602 is without merit; and (2) defendants have made no showing and presented no argument suggesting that the information relied upon by the expert was an inadequate basis under N.C.G.S. \u00a7 8C-1, Rule 703 for the expert\u2019s opinion.\nAppeal by defendants from judgment entered 22 December 2003 by Judge Ronald L. Stephens in Chatham County Superior Court. Heard in the Court of Appeals 24 March 2005.\nPoyner & Spruill, LLP, by Keith H. Johnson, for plaintiffs-appellees.\nStark Law Group, PLLC, by Thomas H. Stark and W. Russell Congleton, for defendants-appellants." }, "file_name": "0709-01", "first_page_order": 739, "last_page_order": 746 }