Wrightsville Winds Townhouses Homeowners' Ass'n v. Miller , 100 N.C. App. 531 ( 1990 )

397 S.E.2d 345 (1990) 100 N.C. App. 531

WRIGHTSVILLE WINDS TOWNHOUSES HOMEOWNERS' ASSOCIATION, Appellee/Plaintiff,
v.
Douglas E. MILLER and wife, Roxanna B. Miller, Appellant/Defendant.

No. 905DC183.

Court of Appeals of North Carolina.

October 30, 1990.

Smith and Smith by W.G. Smith and Barbara Smith, Wilmington, for appellee/plaintiff.

Ryals, Jackson and Mills by Anthony A. Saffo, Wilmington, for appellant/defendant.

ARNOLD, Judge.

Although 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's 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' testimony conflicted with statements of defendant's 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 "expert," the testimony of the layman cannot constitute competent, credible testimony. We disagree.

First, we find no indication in the record that Mr. Miller objected to Mr. Evans' testimony or to Mr. Evans' 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.

Lay 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).

In 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' testimony as competent and hold the trial court's finding that the structures were built on the common elements supported by the evidence.

Defendant 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, "but that the injury is one to which the complainant should not be required to submit or the other party permitted to inflict...." Id. 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's bylaws and Declaration.

Although 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's 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).

Finally, defendant argues the trial judge erred in ordering him to pay plaintiff's attorney's fees. However, Article VIII, Section 5 of the Association's bylaws provides that an owner must pay the Association's attorney's 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's attorney's fees was properly entered.

We have examined defendant's other assignments of error and, after a thorough review of the briefs and record, found them to be without merit.

Affirmed.

HEDRICK, C.J., and PHILLIPS, J., concur.