Appeal by plaintiffs from an order entered 27 April 2005 by
Judge Howard E. Manning, Jr. in Wake County Superior Court. Heard
in the Court of Appeals 22 February 2006.
Wallace, Nordan & Sarda, LLP, by Peter J. Sarda, for
Ellis & Winters, LLP, by Jonathan D. Sasser, for defendant-
Hugh K. Evans and Jackie Evans (plaintiffs) appeal from an
order entered 27 April 2005 dismissing their claims against
Lochmere Recreation Club, Inc. (defendant). We reverse the order
of the trial court and remand for further proceedings.
Facts & Procedural History
In 1994, plaintiff Hugh Evans (Evans) filed suit against
MacGregor Development Co. (MacGregor) and Lochmere Swim & Tennis
Club, Inc. (LSTC), claiming the noise from the speakers and crowds
located at the Swim Club interfered with the use and enjoyment of
his property. At trial, a jury found in favor of Evans and awarded
him $50,000.00 in compensatory damages and $135,000.00 in punitive
damages. The trial court further granted a permanent injunction
and restraining order against MacGregor and LSTC instructing them
to take measures, such as repositioning their speakers, to reduce
the noise encroachment on plaintiff's property. This final
judgment was affirmed on appeal. Evans v. MacGregor Dev. Co.
N.C. App. 224, 491 S.E.2d 566 (1997) (unpublished).
defendant Lochmere Recreation Club acquired the property from LSTC.
Plaintiffs initiated the instant civil action against
defendant on 22 December 2004, alleging that between May and
September of each year from 1998-2004, defendant operated their
swim and tennis club in a manner that created a nuisance.
Plaintiff's complaint listed several different ways in which
plaintiffs assert that defendant caused an unreasonable
interference with the enjoyment of their home. Plaintiffs
initially sought a permanent injunction against defendant's allegednuisance and damages for trespass, intentional infliction of
emotional distress, contempt for the enforcement of a prior
injunction, nuisance, and damages for violations of the local noise
control ordinance. On 13 January 2005, defendant moved to dismiss
plaintiffs' complaint under Rule 12(b)(6). On 5 April 2005,
plaintiffs filed an amendment to their complaint retracting their
claims for contempt, trespass, and violations of the noise control
Defendant's motion was heard on 5 April 2005 before the
Honorable Howard E. Manning, Jr. On 27 April 2005, the trial court
granted defendant's motion to dismiss finding plaintiffs had
received permanent damages as well as prior injunctive relief for
the nuisance created by the swim and tennis club as a result of the
1994 lawsuit. The trial court dismissed all of plaintiffs' claims,
although the claim for violation of the 1994 permanent injunction
was dismissed without prejudice to allow Evans to seek enforcement
of the 1994 permanent injunction. Plaintiffs' current claims
seeking damages for violation of the 1994 permanent injunction and
seeking further injunctive relief against defendant were dismissed
on the basis that the proper recourse was for plaintiffs to seek
enforcement of the 1994 judgment. The trial court further
dismissed plaintiffs' claims for damages for nuisance due to the
previous recovery of permanent economic damages by Evans.
 Plaintiffs argue that the trial court erred in dismissing
their claim for private nuisance. For the reasons below, we
reverse the order of the trial court dismissing plaintiffs' claim
for private nuisance and remand for further proceedings.
Standard of Review
The system of notice pleading affords a sufficiently liberal
construction of complaints so that few fail to survive a motion to
dismiss. Ladd v. Estate of Kellenberger
, 314 N.C. 477, 481, 334
S.E.2d 751, 755 (1985) (citations omitted). In considering a Rule
12(b)(6) motion to dismiss, the trial court must determine whether
the factual allegations in the complaint state a claim for relief.
Sutton v. Duke
, 277 N.C. 94, 176 S.E.2d 161 (1970). A plaintiff
must state the substantive elements of a legally recognized claim
in order to survive a Rule 12(b)(6) motion to dismiss. Booher v.
, 86 N.C. App. 390, 392, 358 S.E.2d 127, 128 (1987) (citations
omitted). To support a complaint for private nuisance, a plaintiff
must allege sufficient facts from which it may be determined what
liability forming conduct is being complained of and what injury
plaintiffs have suffered. Hill v. Perkins
, 84 N.C. App. 644, 648,
353 S.E.2d 686, 689 (1987). When hearing a motion to dismiss, the
trial court must take the complaint's allegations as true and
determine whether they are 'sufficient to state a claim upon which
relief may be granted under some legal theory.' Newberne v. Dep't
of Crime Control & Pub. Safety
, 359 N.C. 782, 784, 618 S.E.2d 201,
203 (2005) (quoting Meyer v. Walls
, 347 N.C. 97, 111, 489 S.E.2d
880, 888 (1997)).
Sufficiency of Complaint
[A] private nuisance exists in a legal sense when one makes
an improper use of his own property and in that way injures the
land or some incorporeal right of one's neighbor. Morgan v. High
Penn Oil Co.
, 238 N.C. 185, 193, 77 S.E.2d 682, 689 (1953)
(citations omitted). In their complaint plaintiffs alleged several
specific actions which would support a private nuisance claim
against defendant, including that defendant has used amplified
sound from speakers aimed directly at [plaintiffs'] premises and
that when the public address system is used, it can be clearly
heard in plaintiffs' home even with all plaintiffs' doors and
windows closed and their television playing. While plaintiffs
allege most of the specific acts in order to prove defendant was in
violation of the injunction arising out of the 1994 lawsuit, all of
these acts are re-alleged in their claim for nuisance. As the
complaint is to be liberally construed, we find it is sufficient on
its face to provide defendant sufficient notice of the conduct on
which the claim is based to enable defendant to respond and prepare
for trial and state[s] enough . . . to satisfy the substantive
elements of a private nuisance claim against defendant. Hill v.
, 84 N.C. App. 644, 647, 353 S.E.2d 686, 688 (1987)
Prior Injunction & Permanent Damages
In its order granting defendant's motion to dismiss relating
to plaintiffs' claim for private nuisance, the trial court found:
. . . to the extent that the claim seeks
damages for diminution in value of theproperty owned by Hugh Evans, must be
dismissed as Hugh Evans has already received
permanent economic damages for the nuisance.
Phillips v. Chesson
, 231 N.C. 566, 570 (1950).
As for that portion of the  Claim for Relief
that seeks injunctive relief to abate the
nuisance, the [c]ourt is of the opinion that
this claim is in essence a claim for permanent
injunctive relief, the subject matter of which
resides in the 1994 lawsuit and its permanent
injunction. Put another way, the [c]ourt views
the  Claim for Relief as seeking additional
injunctive relief, a claim which is rationally
and logically resident in the cause of the
1994 lawsuit and its permanent injunction. . .
. . .
. . . A motion in the cause [filed within the
1994 lawsuit] followed by an evidentiary
hearing could result, upon the proper
evidentiary presentation, in the restraint of
the use of the swim club . . . .
Having determined the foregoing, the  Claim
For Relief to the extent it seeks additional
monetary damages for diminution in value is
dismissed because permanent damages have
already been awarded in the 1994 lawsuit and
the injunctive relief sought . . . lies within
the subject matter jurisdiction of the 1994
lawsuit and its Permanent Injunction.
These findings are in error.
Rule 65 of the North Carolina Rules of Civil Procedure states
that [e]very order granting an injunction . . . is binding only
upon the parties to the action, their officers, agents, servants,
employees, and attorneys, and upon those persons in active concert
or participation with them who receive actual notice in any manner
of the order by personal service or otherwise. N.C. Gen. Stat. §
1A-1, Rule 65(d) (2005). This Court has held that successors in
ownership of real property are not automatically bound by priorjudgments granting injunctions concerning the use of the property.
Ferrell v. Doub
, 160 N.C. App. 373, 378-80, 585 S.E.2d 456, 459-61
(2003). As there was no evidence offered of any active concert or
participation between defendant and the previous owners,
plaintiffs could not enforce the previous injunction against
defendant and thus were entitled to bring a new suit against
defendant requesting relief in the form of an injunction.
Regarding permanent damages resulting from a continuing
nuisance, our Supreme Court has held:
[A] landowner may not as a matter of right
recover permanent damages from a private
corporation or individual for the maintenance
of a continuing nuisance or trespass. His
remedy is to recover in separate and
successive actions for damages sustained to
the time of the trial. However, the parties
may consent that an issue as to permanent
damages be submitted; and in such case the
defendant, upon payment of permanent damages
so assessed, acquires a permanent right to
continue such nuisance or trespass as in
Wiseman v. Tomrich Constr. Co.
, 250 N.C. 521, 524, 109 S.E.2d 248,
251 (1959) (internal citations omitted). The verdict and award in
the 1994 lawsuit does not indicate that an issue as to permanent
damages was submitted to the jury. Rather, the verdict merely
determined MacGregor and LSTC created a private nuisance and Evans
was entitled to recover for his damages. Further, as an injunction
was entered against MacGregor and LSTC, it follows they did not
acquire a permanent right to continue the nuisance and therefore
the damages awarded were not permanent damages. This Court's unpublished opinion affirming the verdict and
award in the 1994 lawsuit is not controlling on whether the
original award was for permanent damages. The relevant issue
determined by this Court was whether the trial court erred in
allowing Evans to testify regarding the purported diminution of
value of his property due to the sound nuisance. Evans v.
MacGregor Dev. Co.
, 126 N.C. App. 224, 491 S.E.2d 566 (1997)
(unpublished). This Court held that the trial court did not err in
admitting Evans' testimony, however it made no indication that the
jury's award for damages was based solely on the diminution of
Evans' property, stating, plaintiff's evidence showed he suffered
both pecuniary loss and personal discomfort. Evans
, slip op. at
4. As the verdict and award in the 1994 lawsuit was not explicitly
for permanent damages, plaintiffs' remedy is to recover in separate
and successive actions for damages sustained to the time of the
trial. Phillips v. Chesson
, 231 N.C. 566, 569-70, 58 S.E.2d 343,
 For the reasons above we find the trial court erred in
dismissing plaintiffs' claim for private nuisance. While
plaintiffs also assign as error the dismissal of their claims
against defendant for violating the 1994 permanent injunction and
restraining order, plaintiffs correctly abandon this argument in
their brief. This assignment of error is therefore deemed waived.
N.C. R. App. P. 28(b)(6) (2006); State v. Sakobie
, 157 N.C. App.
275, 279, 579 S.E.2d 125, 128 (2003). Affirmed in part, reversed in part, and remanded for further
proceedings on plaintiffs' claim for private nuisance.
Judges McGEE and HUDSON concur.
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