{ "id": 4156363, "name": "CECI AUSTIN, Plaintiff, v. BALD II, L.L.C., Defendant", "name_abbreviation": "Austin v. Bald II, L.L.C.", "decision_date": "2008-03-18", "docket_number": "No. COA07-1152", "first_page": "338", "last_page": "345", "citations": [ { "type": "official", "cite": "189 N.C. App. 338" } ], "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": "220 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11301975 ], "opinion_index": -1, "case_paths": [ "/nc/220/0302-01" ] }, { "cite": "655 S.E.2d 875", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640275 ], "year": 2008, "opinion_index": 0, "case_paths": [ "/se2d/655/0875-01" ] }, { "cite": "649 S.E.2d 14", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639165 ], "year": 2007, "pin_cites": [ { "page": "20" } ], "opinion_index": 0, "case_paths": [ "/se2d/649/0014-01" ] }, { "cite": "644 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638317 ], "year": 2007, "pin_cites": [ { "page": "247", "parenthetical": "citing Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0245-01" ] }, { "cite": "514 S.E.2d 730", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "133 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11217162 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0131-01" ] }, { "cite": "229 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "301", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "291 N.C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557369 ], "year": 1976, "pin_cites": [ { "page": "112", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0105-01" ] }, { "cite": "188 N.C. App. 430", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156336 ], "year": 2008, "pin_cites": [ { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc-app/188/0430-01" ] }, { "cite": "192 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "2" }, { "page": "2" } ], "opinion_index": 0 }, { "cite": "16 N.C. App. 429", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551859 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "430" }, { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0429-01" ] }, { "cite": "443 S.E.2d 737", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "739" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 134", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12123351 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/115/0134-01" ] }, { "cite": "465 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "18", "parenthetical": "citing Anderson v. Austin, 115 N.C. App. 134, 443 S.E.2d 737, 739 (1994)" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 166", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916130 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "168", "parenthetical": "citing Anderson v. Austin, 115 N.C. App. 134, 443 S.E.2d 737, 739 (1994)" }, { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0166-01" ] }, { "cite": "553 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 449", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11359409 ], "year": 2001, "pin_cites": [ { "page": "464" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0449-01" ] }, { "cite": "607 S.E.2d 286", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "291", "parenthetical": "quoting Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 464, 553 S.E.2d 431, 441 (2001)" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 49", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468117 ], "year": 2005, "pin_cites": [ { "page": "55", "parenthetical": "quoting Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 464, 553 S.E.2d 431, 441 (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0049-01" ] }, { "cite": "185 N.C. App. 356", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209846 ], "year": 2007, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0356-01" ] }, { "cite": "531 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080078 ], "year": 2000, "pin_cites": [ { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0425-01" ] }, { "cite": "565 S.E.2d 248", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "252", "parenthetical": "quoting Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429, 531 S.E.2d 476, 479 (2000)" }, { "page": "252" } ], "opinion_index": 0 }, { "cite": "151 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9079936 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "250", "parenthetical": "quoting Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429, 531 S.E.2d 476, 479 (2000)" }, { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc-app/151/0244-01" ] }, { "cite": "583 S.E.2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "320" }, { "page": "320" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956450 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "411" }, { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0408-01" ] }, { "cite": "516 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "860" } ], "opinion_index": 0 }, { "cite": "350 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132071 ], "year": 1999, "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0621-01" ] }, { "cite": "333 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "256" } ], "opinion_index": 0 }, { "cite": "314 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694301 ], "year": 1985, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0284-01" ] }, { "cite": "183 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8202792 ], "year": 2007, "pin_cites": [ { "page": "252", "parenthetical": "citing Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0249-01" ] }, { "cite": "17 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1941, "pin_cites": [ { "page": "124" } ], "opinion_index": 0 }, { "cite": "66 S.E. 439", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1909, "pin_cites": [ { "page": "439", "parenthetical": "citing 12 Am. & Eng. Enc., 1058, and cases cited in note; 1 Cyc., 789" }, { "page": "439", "parenthetical": "internal quotation marks omitted" }, { "page": "439", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "151 N.C. 433", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655135 ], "weight": 3, "year": 1909, "pin_cites": [ { "page": "434", "parenthetical": "citing 12 Am. & Eng. Enc., 1058, and cases cited in note; 1 Cyc., 789" }, { "page": "434" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/nc/151/0433-01" ] }, { "cite": "133 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1963, "pin_cites": [ { "page": "173" }, { "page": "173", "parenthetical": "citations omitted" }, { "page": "173" } ], "opinion_index": 0 }, { "cite": "260 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575421 ], "weight": 4, "year": 1963, "pin_cites": [ { "page": "528" }, { "page": "528" }, { "page": "529" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0527-01" ] }, { "cite": "220 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11301975 ], "weight": 2, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0302-01" ] } ], "analysis": { "cardinality": 840, "char_count": 17236, "ocr_confidence": 0.752, "pagerank": { "raw": 1.0548637599505953e-07, "percentile": 0.5551008958437346 }, "sha256": "33f8133b0a353edb3cf3073f6072bf985b693b9d3da9e6d0cf811a6b7d0a16ea", "simhash": "1:1f2c0d20727f05dc", "word_count": 2814 }, "last_updated": "2023-07-14T16:47:52.494477+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and STROUD concur." ], "parties": [ "CECI AUSTIN, Plaintiff, v. BALD II, L.L.C., Defendant" ], "opinions": [ { "text": "ARROWOOD, Judge.\nBald II, L.L.C., (Defendant), owned and operated by Dr. Francis A. Bald (Dr. Bald) appeals from judgment entered on 2 April 2007 awarding Plaintiff damages in the amount of $1.00, and ordering Defendant to remove the ten foot wooden fence and erect a new fence no higher than six feet. This judgment was based upon a jury verdict determining that Defendant erected a spite fence along Ceci Austin\u2019s (Plaintiff\u2019s) property.\nOn 5 April 2007 Plaintiff filed a motion for new trial on the issue of punitive damages, which the trial court denied. From the judgment and order, Plaintiff also appeals. We affirm the trial court\u2019s judgment in part and remand in part for a new trial on the issue of punitive damages.\nPlaintiff owns a home in Elizabeth City in Pasquotank County, and Defendant owns the adjoining property, upon which Riverwind Apartments (Riverwind) is located. Dr. Bald\u2019s son, Steven Bald (Bald), managed Riverwind. In 2005, Defendant planned to build additional condominiums on the property next to Riverwind \u2014 a plan which Defendant abandoned. On 20 December 2005, instead of building condominiums, Defendant erected a ten foot wooden fence on Plaintiff\u2019s property line, obstructing Plaintiff\u2019s view of the Pasquotank River and restricting the sunlight into Plaintiff\u2019s yard. The fence along the southern boundary of Defendant\u2019s property, which did not adjoin Plaintiff\u2019s property, was only six feet tall. Plaintiff alleged that Defendant \u201cerected [the] fence for no legitimate purpose [or beneficial use] and has, in fact, erected the fence for the purpose of spite[.]\u201d Plaintiff alleged that the fence was \u201ca private nuisance\u201d and that Defendant built the fence \u201cto satisfy vengeful and malicious motive to injure the Plaintiff].]\u201d Plaintiff stated that the fence will \u201cdetrimentally] effect. . . the property value\u201d of her home.\nIn an affidavit submitted 6 September 2006, Plaintiff stated that \u201cI have lived at [this residence] for more than 11 years[,] . . . [and] I have always had a small wooden fence at or near the boundary of my property with the defendant\u2019s property, which wooden fence was approximately three feet high.\u201d Plaintiff stated that the fence \u201c[defined] my property line and . . . fencfed] in my small dog.\u201d When Plaintiff wrote Defendant to \u201cadvise him\u201d that new ten feet tall fence \u201cwas very obtrusive, blocked my view of the Pasquotank River, blocked the sunlight in my side yard and blocked any breezes that I would normally get off the Pasquotank River[,]\u201d she received \u201cno response\u201d from Defendant.\nIn an affidavit submitted 6 September 2006, Mary McLendon (McLendon) stated that \u201c[s]hortly before construction [of the fence] began ... I noticed two gentlemen who worked for Riverwinds . . . measuring and marking a line along the property line of [Plaintiff][.]\u201d When McLendon asked the men \u201cwhat they were doing[,]\u201d the men replied, \u201cbuilding a fence].]\u201d McLendon inquired why, and the men said, \u201cwe are going to show her[,]\u201d pointing towards Plaintiff\u2019s house.\nOn 28 August 2006, Defendant filed a motion for summary judgment, which the court denied on 19 September 2006, concluding that \u201cthere is a genuine issue of material fact[.]\u201d The matter was tried before a jury on 5 March 2007, and on 2 April 2007, the trial court entered judgment ordering Defendant to remove the fence and to erect a new fence no taller than six feet; the court awarded Plaintiff $1.00 in compensatory damages. From this judgment, Plaintiff and Defendant appeal.\n\u201cA spite fence is one which is of no beneficial use to the owner and which is erected and maintained solely for the purpose of annoying a neighbor.\u201d Welsh v. Todd, 260 N.C. 527, 528, 133 S.E.2d 171, 173 (1963). \u201c \u2018[A] fence erected maliciously and with no other purpose than to shut out the light and air from a neighbor\u2019s window is a nuisance.\u2019 \u201d Barger v. Barringer, 151 N.C. 433, 434, 66 S.E. 439, 439 (1909) (citing 12 Am. & Eng. Enc., 1058, and cases cited in note; 1 Cyc., 789). \u201cIt may be abated, subject to the same equitable principles which govern injunctive relief generally, and damages recovered if any have been sustained.\u201d Welsh, 260 N.C. at 528, 133 S.E.2d at 173 (citing Burris v. Creech, 220 N.C. 302, 17 S.E.2d 123 (1941)).\n\u201cCourts have denied equitable relief where the walls and fences complained of screened a defendant\u2019s premises from objectionable noises, odors, and unseemly conduct on the plaintiff\u2019s property.\u201d Welsh, 260 N.C. at 529, 133 S.E.2d at 173 (citations omitted).\nSummary Judgment\nIn its first assignment of error, Defendant contends that the trial court erred by denying Defendant\u2019s motion for summary judgment.\nThis Court cannot consider an appeal from the denial of the summary judgment motion now that a final judgment on the merits has been made:\nImproper denial of a motion for summary judgment is not reversible error when the case has proceeded to trial and has been determined on the merits by the trier of the facts, either judge or jury.\nTo grant a review of the denial of the summary judgment motion after a final judgment on the merits . . . would mean that a party who prevailed at trial after a complete presentation, of evidence by both sides with cross-examination could be deprived of a favorable verdict. This would allow a verdict reached after the presentation of all the evidence to be overcome by a limited forecast of the evidence. In order to avoid such an anomalous result, we hold that the denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits.\nWRI/Raleigh, L.P. v. Shaikh, 183 N.C. App. 249, 252, 644 S.E.2d 245, 247 (2007) (citing Harris v. Walden, 314 N.C. 284, 286, 333 S.E.2d 254, 256 (1985)). Thus, we cannot address Defendant\u2019s first assignment of error.\nRule 50 \u2022\nBy Assignments of Error Three, Four and Five, Defendant contends that the trial court erred by denying Defendant\u2019s motions for directed verdict at the close of Plaintiff\u2019s evidence and at the close of all evidence and its motion for judgment notwithstanding the verdict under Rule 50 of the North Carolina Rules of Civil Procedure.\n\u201c[T]he questions concerning the sufficiency of the evidence to withstand a Rule 50 motion for directed verdict or judgment notwithstanding the verdict present an issue of law[.]\u201d In re Will of Buck, 350 N.C. 621, 624, 516 S.E.2d 858, 860 (1999). On appeal, this Court thus reviews an order ruling on a motion for directed verdict or judgment notwithstanding the verdict de novo. See Denson v. Richmond County, 159 N.C. App. 408, 411, 583 S.E.2d 318, 320 (2003). The standard of review of a ruling entered upon a motion for directed verdict and judgment notwithstanding the verdict is \u201c \u2018whether upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury.\u2019 \u201d Branch v. High Rock Realty, Inc., 151 N.C. App. 244, 250, 565 S.E.2d 248, 252 (2002) (quoting Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429, 531 S.E.2d 476, 479 (2000)). \u201cA motion for . . . [directed verdict and] judgment notwithstanding the verdict \u2018should be denied if there is more than a scintilla of evidence supporting each element of the non-movant\u2019s claim.\u2019 \u201d Denson, 159 N.C. App. at 412, 583 S.E.2d at 320 (quoting High Rock Realty, 151 N.C. App. at 250, 565 S.E.2d at 252); see also N.C. Indus. Capital, LLC v. Clayton, 185 N.C. App. 356, 362, 649 S.E.2d 14, 20 (2007).\nThe evidence presented by Plaintiff, viewed in a light most favorable to her, showed the following: Defendant built the fence surrounding the apartment complex six feet tall along the southern boundary of its property, but ten feet tall along Plaintiff\u2019s property. When asked the reason for building the tall fence, an employee of Defendant stated, \u201cwe\u2019re going to show her,\u201d indicating toward Plaintiff\u2019s home. Moreover, both Plaintiff and an employee of Defendant testified that no one had crossed from Plaintiff\u2019s property onto the Riverwind Apartments[.]\u201d At trial, when asked, \u201c[f]or the [twelve] years ... that you\u2019ve lived there, has there ever been an issue with people crossing from your property],]\u201d Plaintiff replied, \u201c[n]ever, never, to my knowledge, ever.\u201d Moreover, when asked, \u201c[h]ave you ever had anybody cross over from Ms. Austin\u2019s property, to your knowledge, onto the Riverwinds property],]\u201d Bald, the manager of Riverwind, responded, \u201c[n]ot to my knowledge.\u201d Moreover, William Manning, Plaintiff\u2019s neighbor, testified that he addressed Dr. Bald, owner and operator of Defendant corporation about the \u201cfence being high[,]\u201d and Dr. Bald replied that \u201cwe wanted to build some apartments but the city . . . wouldn\u2019t let us.\u201d Then, immediately after the statement that the city thwarted Defendant\u2019s plans, Dr. Bald stated that Defendant decided to \u201cbuild a security fence.\u201d Notably, Plaintiff served on the city council. When Manning asked Dr. Bald, \u201ccouldn\u2019t you make [the fence] smaller[?]\u201d Dr. Bald and Manning argued briefly, and Dr. Bald asked Manning to \u201cget off the property.\u201d\nThe evidence also shows that in 2005, Dr. Bald planned to build condominiums on the Riverwind Apartments property. McClendon, who lived two blocks from Riverwind Apartments testified that she was \u201caware . . . [that] there were . . . plans to build condominiums on [Defendant\u2019s] property^]\u201d because Defendant posted, in the Riverwind Health Club, \u201c[floor] plans . . . showing . . . how the apartments would be situated[.]\u201d Later, McClendon testified that Defendant took down the floor plans; McClendon inquired why, and an employee of Defendant stated, \u201cWell[,] your city council took care of that].]\u201d Even though the evidence shows that Plaintiff was a member of the city council, she \u201cplayed no role ... in that condominium application process[.]\u201d Defendant\u2019s fence was erected only a few months after the condominium project was abandoned, even though Dr. Bald testified in his deposition that the \u201csecurity problems\u201d had been \u201cconstant\u201d at Riverwind \u201csince 2003.\u201d Furthermore, the original condominium plans included a six foot fence along Plaintiff\u2019s property, but after the condominium project was abandoned, the fence grew to ten feet. Finally, the evidence shows that \u201cthe fence was still in progress when [Plaintiff] filed the lawsuit[.]\u201d\nAfter examining the evidence in the light most favorable to Plaintiff, and giving Plaintiff the benefit of every reasonable inference drawn therefrom, we conclude that the evidence was sufficient to be submitted to the jury. There was more than a scintilla of evidence supporting each element of Plaintiff\u2019s claim. The associated assignments of error are overruled.\nDefendant does not bring forward or argue its Assignments of Error Two, Six and Seven; therefore, they are deemed abandoned. N.C.R. App. P. 28(b)(6).\nPunitive. Damages\nIn her Cross-Appeal, Plaintiff contends that the trial court erred by not instructing the jury on the issue of punitive damages. We agree.\n\u201c \u2018When a party\u2019s requested jury instruction is correct and supported by the evidence, the trial court is required to give the instruction.\u2019 \u201d Maglione v. Aegis Family Health Ctrs., 168 N.C. App. 49, 55, 607 S.E.2d 286, 291 (2005) (quoting Whiteside Estates, Inc. v. Highlands Cove, L.L.C., 146 N.C. App. 449, 464, 553 S.E.2d 431, 441 (2001)). \u201cIn reviewing the trial court\u2019s decision to give or not give a jury instruction, the preliminary inquiry is whether, in the light most favorable to the proponent, the evidence presented is sufficient to support a reasonable inference of the elements of the claim asserted.\u201d Blum v. Worley, 121 N.C. App. 166, 168, 465 S.E.2d 16, 18 (1995) (citing Anderson v. Austin, 115 N.C. App. 134, 443 S.E.2d 737, 739 (1994)). \u201cOnce a party has aptly tendered a request for a specific instruction, correct in itself and supported by the evidence, failure of the trial court to render such instruction, in substance at least, is error.\u201d Worley, 121 N.C. App. at 168, 465 S.E.2d at 18 (citing Faeber v. E.C.T. Corp., 16 N.C. App. 429, 430, 192 S.E.2d 1, 2 (1972)). \u201c[I]t is the duty of the trial court to charge the law applicable to the substantive features of the case arising on the evidence . . . and to apply the law to the various factual situations presented by the conflicting evidence.\u201d Faeber, 16 N.C. App. at 430, 192 S.E.2d at 2.\nPlaintiff\u2019s cause of action in the instant case is based on the following: \u201cA spite fence is one which is of no beneficial use to the owner and which is erected and maintained solely for the puipose of annoying a neighbor.\u201d Welsh, 260 N.C. at 528, 133 S.E.2d at 173. \u201c[A] fence erected maliciously and with no other purpose than to shut out the light and air from a neighbor\u2019s window is a nuisance.\u201d Barger, 151 N.C. at 434, 66 S.E. at 439 (internal quotation marks omitted). The jury here found Defendant culpable of erecting a \u201cspite fence\u201d.\n\u201cPunitive damages may only be awarded where the claimant proves the defendant is liable for compensatory damages and proves the existence of fraud, malice, or willful or wanton conduct by clear and convincing evidence.\u201d Scarborough v. Dillards, Inc., 188 N.C. App. 430, 434, 655 S.E.2d 875, - (2008); see also N.C. Gen. Stat. \u00a7 ID-15 (2007). \u201cThe claimant must prove the existence of an aggravating factor by clear and convincing evidence.\u201d N.C. Gen. Stat. \u00a7 1D-I5(b) (2007). Malice, as defined by the punitive damages statute, means \u201ca sense of personal ill will toward the claimant that activated or incited the defendant to perform the act or undertake the conduct that resulted in harm to the claimant.\u201d N.C. Gen. Stat. \u00a7 lD-5(5) (2007).\nIn Newton v. Standard Fire Ins. Co., 291 N.C. 105, 112, 229 S.E.2d 297, 301 (1976) (citations omitted), our Supreme Court held:\nThe aggravated conduct which supports an award for punitive damages when an identifiable tort is alleged may be established by allegations of behavior extrinsic to the tort itself... [o]r it may be. established by allegations sufficient to allege a tort where that tort, by its very nature, encompasses any of the elements of aggravation.\nId. Notably, the definition of \u201cspite fence,\u201d requires that the \u201c \u2018fence [be] erected maliciously[.]\u2019 \u201d Barger, 151 N.C. at 434, 66 S.E. at 439 (citation omitted); see also Mehovic v. Mehovic, 133 N.C. App. 131, 514 S.E.2d 730 (1999); N.C. Gen. Stat. \u00a7 1D-I5(a)(2) (2007).\nDefendant cites Burris for the proposition that punitive damages are categorically unavailable in \u201cspite fence\u201d cases. However, this argument is not the correct reading of our Supreme Court\u2019s holding in Burris. In Burris, the Court held that \u201c[i]t is not thought the case is one in which punitive damages [should be] awarded.\u201d The Court reasoned that \u201c[t]here is no evidence [here] that the plaintiff has suffered any pecuniary loss or personal discomfort[,]\u201d and furthermore, \u201c[a]n abatement of the nuisance ... alleviate[d] the damage[.]\u201d Burris, 220 N.C. at 304, 17 S.E.2d at 124. Thus, the Court held that the trial court erred by allowing the issue of punitive damages, based on these facts, to go to a jury.\nWe conclude that the Supreme Court in Burris did not intend to create a categorical exception to punitive damages in \u201cspite fence\u201d cases, but rather, held that under the facts of that case plaintiff had not suffered any pecuniary loss or personal discomfort that would entitle him to pecuniary or punitive damages. The facts in the instant case differ from those of Burris. Here, Plaintiff has tendered evidence of pecuniary loss and personal discomfort. We conclude th\u00e1t the evidence presented by Plaintiff is sufficient to meet the elements necessary to require the submission of the punitive damages to the jury. Thus, the trial court erred by failing to do so.\nAffirmed in part, and Remanded in part for a new trial on punitive damages.\nJudges ELMORE and STROUD concur.", "type": "majority", "author": "ARROWOOD, Judge." } ], "attorneys": [ "C. Everett Thompson, II, for Plaintiff-Appellant.", "Wills & Wills, P.C., by Gregory E. Wills, for Defendant-Appellant." ], "corrections": "", "head_matter": "CECI AUSTIN, Plaintiff, v. BALD II, L.L.C., Defendant\nNo. COA07-1152\n(Filed 18 March 2008)\n1. Appeal and Error\u2014 appealability \u2014 denial of summary judgment \u2014 final judgment on merits\nAn appeal from the denial of summary judgment was not considered after a final judgment on the merits.\n2. Nuisance\u2014 spite fence \u2014 evidence sufficient\nThe trial court did not err by denying defendant\u2019s motions for a directed verdict and for judgment notwithstanding the verdict in a spite fence action where there was mor\u00e9 than a scintilla of evidence supporting each element of plaintiff\u2019s claim.\n3. Damages\u2014 punitive \u2014 spite fence\n\u25a0 The trial court erred by not instructing the jury on the issue of punitive damages in a spite fence action where defendant argued that punitive damages are categorically not available in spite fence cases, but plaintiff here tendered evidence of pecuniary loss and personal discomfort, unlike Burris v. Creech, 220 N.C. 302.\nAppeal by Plaintiff and Defendant from judgment entered 2 April 2007 and order entered 25 April 2007 by Judge Quentin T. Sumner in Pasquotank County Superior Court. Heard in the Court of Appeals 20 February 2008.\nC. Everett Thompson, II, for Plaintiff-Appellant.\nWills & Wills, P.C., by Gregory E. Wills, for Defendant-Appellant." }, "file_name": "0338-01", "first_page_order": 370, "last_page_order": 377 }