IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-928
Filed 7 October 2026
Brunswick County, No. 21CVS002373-090
DANIEL PALLEN & JANET A. PALLEN, Plaintiffs,
v.
STEVEN A. WINGFIELD & DEBORAH J. WINGFIELD, Defendants.
Appeal by plaintiffs from order entered 21 March 2025 by Judge Jason C.
Disbrow in Brunswick County Superior Court. Heard in the Court of Appeals 12
August 2026.
Watts Phanco Law Group PLLC, by Joshua Phanco and S. Denise Watts, for
plaintiffs-appellants.
The DiGuiseppe Law Firm, P.C., by Raymond M. DiGuiseppe, for defendantsappellees.
FLOOD, Judge.
Plaintiffs Daniel and Janet Pallen appeal from the trial court’s order awarding
Defendants Steven and Deborah Wingfield attorney’s fees. On appeal, Plaintiffs
argue that the trial court erred in awarding attorney’s fees pursuant to Rule 68 of the
North Carolina Rules of Civil Procedure, which does not authorize attorney’s fees, or
pursuant to N.C.G.S. § 6-21.5, because the claims were factually and legally
justiciable. Upon review, we conclude that the trial court was without authority to
award attorney’s fees in a private nuisance case pursuant to Rule 68; however, we
PALLEN V. WINGFIELD
Opinion of the Court
affirm the trial court’s award of attorney’s fees pursuant to N.C.G.S. § 6‑21.5 where
Plaintiffs persisted in litigating a nonjusticiable issue.
I. Factual and Procedural Background
In 2009, Plaintiffs purchased real property located at 6242 Castlebrook Way
SW, Ocean Isle Beach, North Carolina. Three years later, Defendants purchased one
of the undeveloped lots next to Plaintiffs. Defendants then had a property and
landscaping plan approved by the Ocean Ridge Plantation Architectural Review
Board, built their house, and moved in around the summer of 2015. Both parties’ lots
were subject to the Master Declaration of Protective Covenants and Easements for
Ocean Ridge Plantation.
Two months after moving in, Defendants requested an in-person meeting with
the administrator of Ocean Ridge Plantation after noticing water running off from
Plaintiffs’ lot into their lot. The administrator informed Defendants that their lot was
properly graded while Plaintiffs’ lot was not. The administrator explained that “[t]he
current problem was that [Plaintiffs’] front yard was graded so as to slope towards
[Defendants’] property which created ponding in a low area of [Plaintiffs’] yard and
also was overflowing onto [Defendants’] property.” Defendants were permitted to
install a berm to prevent water from running off from Plaintiffs’ lot into their own.
Later, in 2019, Plaintiffs sued Defendants, complaining that Defendants’
property was causing water to run off into Plaintiffs’ lot, but they voluntarily
dismissed their suit in March 2021 without prejudice. Plaintiffs filed another suit in
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Opinion of the Court
December 2021, alleging claims of breach of contract, trespass, and nuisance, and
requesting declaratory judgment and punitive damages. In their Complaint,
Plaintiffs alleged that their lot was “graded in accordance with water drainage
routes[,]” and they had “beg[u]n noticing an increased amount of water running off
[Defendants’] lot and onto [] Plaintiffs’ lot in the Summer of 2015. The water run off
increased exponentially in the Summer of 2017, eventually producing large amounts
of standing water on [Plaintiffs’] lot.” They further alleged that “Defendants altered
[Defendants’] lot continuously from Summer 2015 through Spring/Summer of 2017
and the present[,]” and in 2017, Defendants altered their lot by “adding dirt and fill
to the property and constructing a berm[,]” which thus caused the water to run off
into Plaintiffs’ lot.
Defendants filed an answer, which included a motion to dismiss and
counterclaims for trespass and nuisance. Plaintiffs then filed a motion for sanctions,
alleging that Defendants’ motion “is not made in good faith, in so far as the facts of
the matter of this case have always been in dispute and a question of law is not at
issue” and that motion “is made for the purpose of harassment and/or to increase the
attorney fees of [] Plaintiff[s].” The trial court granted Defendants’ motion to dismiss
as to Plaintiffs’ claims of trespass and breach of contract, and the remaining issue of
nuisance proceeded to trial. At trial, Defendants introduced Plaintiffs’ landscaping
plan, which showed that Plaintiffs were “not in compliance with the landscaping plan
on file pertaining to their property.” This trial, however, resulted in a mistrial on the
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Opinion of the Court
third day of trial.
After the mistrial, Defendants made an offer of judgment to Plaintiffs
pursuant to Rule 68 of the Rules of Civil Procedure, offering to settle Plaintiffs’ claim
for “$15,000.00, which said amount is an all[-]inclusive amount including, but not
limited to, damages, attorney’s fees taxable as costs, interest and all costs presently
accrued.” Plaintiffs did not accept this offer, and the matter proceeded to a second
trial. The jury subsequently returned verdicts that neither party was liable to the
other for private nuisance.
After the jury was released, Defendants’ counsel moved for costs pursuant to
the previous Rule 68 offer of judgment. After some debate between Plaintiffs’ counsel
and Defendants’ counsel as to whether Rule 68 included attorney’s fees, the court
stated it was going to hold its “order in abeyance” and requested the parties submit
briefs. Defendants additionally argued that Plaintiffs’ punitive damages claim was
nonjusticiable. After hearing from both parties on the issue of attorney’s fees
pursuant to Rule 68 and non-justiciability, the following conversation took place after
the trial judge requested further briefing:
[PLAINTIFFS’ COUNSEL:] . . . Also, Your Honor, just for
clarification, would you like us to brief the issue on Rule
68, just the order of judgment and the nonjusticiable issue,
or would you just like it on Rule 68?
THE COURT: Just on Rule 68. I’m going to deny any claim
as far as the nonjusticiable issue.
[DEFENDANTS’ COUNSEL]: Yes, sir.
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Opinion of the Court
THE COURT: Obviously, it’s moot now. And I would simply
ask that you file – well, the Court is going to enter an order
dismissing the claim for punitive damages as being moot.
[DEFENDANTS’ COUNSEL]: Yes, sir.
THE COURT: Given the jury’s verdict. So if someone will
prepare an order and e-mail that to Ms. Hauser, please so
I can get that filed.
Subsequently, the trial court entered an order on 18 February 2025, dismissing
Plaintiffs’ punitive damages claim as moot. The trial court then entered a written
order awarding Defendants’ attorney’s fees pursuant to Defendants’ Rule 68 offer of
judgment. It found that, “excluding representation in the 2019 District Court lawsuit
and including only fees and expenses paid to counsel subsequent to the filing of the
present lawsuit, [] Defendants spent $27,443.00 in reasonable attorney’s fees and
expenses . . . .” The trial court concluded as a matter of law that “there was a complete
absence of a justiciable issue of either law or fact raised by [] Plaintiffs supporting a
claim for punitive damages[,]” “Defendants are entitled to costs incurred subsequent
to the extended and rejected Offer of Judgment as permitted by the Rules of Civil
Procedure[,]” and the “attorney’s fees and costs are reasonable[.]” Plaintiffs timely
appealed.
II. Jurisdiction
This Court has jurisdiction to hear an appeal from a final judgment from a
superior court pursuant to N.C.G.S. § 7A‑27(b) (2025).
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Opinion of the Court
III. Analysis
On appeal, Plaintiffs argue the trial court erred in awarding attorney’s fees (A)
pursuant to Rule 68, or in the alternative, (B) pursuant to N.C.G.S. § 6‑21.5. We
address each argument in turn.
A. Rule 68
Plaintiffs first argue that the trial court erred in awarding attorney’s fees
pursuant to Rule 68, contending that Rule 68 does not authorize an award of
attorney’s fees, and there are no other statutes providing an award of attorney’s fees
in private nuisance claims. We agree.
“In North Carolina, parties to litigation are generally responsible for their own
attorney[’]s fees unless a statute provides otherwise.” McLennan v. C.K. Josey, Jr.,
247 N.C. App. 95, 98 (2016). “Whether a trial court has properly interpreted the
statutory framework applicable to costs is a question of law reviewed de novo on
appeal.” Peters v. Pennington, 210 N.C. App. 1, 25 (2011). “Under a de novo review,
the court considers the matter anew and freely substitutes its own judgment for that
of the lower tribunal.” In re S.W., 298 N.C. App. 39, 44 (2025) (citation omitted).
Rule 68(a) provides:
At any time more than 10 days before the trial begins, a
party defending against a claim may serve upon the
adverse party an offer to allow judgment to be taken
against him for the money or property or to the effect
specified in his offer, with costs then accrued. If within 10
days after the service of the offer the adverse party serves
written notice that the offer is accepted, either party may
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Opinion of the Court
then file the offer and notice of acceptance together with
proof of service thereof and thereupon the clerk shall enter
judgment. An offer not accepted within 10 days after its
service shall be deemed withdrawn and evidence of the
offer is not admissible except in a proceeding to determine
costs. If the judgment finally obtained by the offeree is not
more favorable than the offer, the offeree must pay the
costs incurred after the making of the offer. The fact that
an offer is made but not accepted does not preclude a
subsequent offer.
N.C.G.S. § 1A-1, Rule 68(a) (2025). Our courts have held that “[a]ttorney[’]s fees may
be awarded under Rule 68 if they are ‘part of the “costs then accrued” when defendant
made his offer to plaintiff[.]’” Lincoln v. Bueche, 166 N.C. App. 150, 157 (2004)
(quoting Purdy v. Brown, 307 N.C. 93, 96 (1982)). Although “[t]here is no provision in
Rule 68 authorizing the trial courts to award attorney[’]s fees[,]” the trial court can
award attorney’s fees “in the context of Rule 68 where there exists authorization to
tax them as costs under some other Rule or statute.” Id. “In determining the ‘costs
then accrued,’ we must consider the relative positions of the parties as they existed
at the time the offer was made[,]” such that the authorizing Rule or statute must
come from the “substantive law involved[.]” Purdy, 307 N.C. at 96–98 (holding there
were no attorney’s fees to be awarded under Rule 68 where, “[a]t the time [the]
defendant tendered his offer to [the] plaintiff, [N.C.]G.S. [§] 6-21.1 was not applicable
because the situation did not then involve a judgment for $5,000 or less[,]” and “we
f[ound] no other statute permitting the trial judge to award attorney’s fees to the
prevailing party in a personal injury action”).
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Opinion of the Court
Here, at the time Defendants made the offer of judgment to Plaintiffs pursuant
to Rule 68, the sole underlying claim left was private nuisance. Private nuisance
claims do not have a special costs statute. See Lincoln, 166 N.C. App. at 157. Instead,
under our civil liability statute, our legislature has provided that, “[i]n actions where
allowance of costs is not otherwise provided by the General Statutes, costs may be
allowed in the discretion of the court. Costs awarded by the court are subject to the
limitations on assessable or recoverable costs set forth in [N.C.]G.S. [§] 7A-305(d),
unless specifically provided for otherwise in the General Statutes.” N.C.G.S. § 6-20
(2025). Section 7A-305(d) provides a “complete and exclusive” list of expenses a party
may include as part of the costs, which does not include attorney’s fees. See N.C.G.S.
§ 7A-305(d) (2025) (“The expenses set forth in this subsection are complete and
exclusive and constitute a limit on the trial court’s discretion to tax costs pursuant to
[N.C.]G.S. [§] 6-20[.]”). Thus, at the time Defendants made the offer of judgment to
Plaintiffs, there was no rule or statute related to the substantive law of private
nuisance that could have provided attorney’s fees pursuant to Rule 68 as part of the
“costs then accrued.” Lincoln, 166 N.C. App. at 157. Accordingly, it was error for the
trial court to award attorney’s fees pursuant to Rule 68.
B. N.C.G.S. § 6‑21.5
Plaintiffs next argue that attorney’s fees could not have been granted pursuant
to N.C.G.S. § 6‑21.5. Although the trial court referenced only Rule 68 in its order, it
used language from N.C.G.S. § 6‑21.5, which provides for attorney’s fees when there
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Opinion of the Court
are nonjusticiable issues. Plaintiffs contend that, even if this Court were to conclude
the trial court based its award of attorney’s fees pursuant to N.C.G.S. § 6‑21.5, rather
than Rule 68, this was error because their punitive damages claim was justiciable.
1. Oral Ruling
We first address whether the trial court could enter a written ruling
contradicting its previous oral ruling where it provided it would deny any
nonjusticiable claims.
“[T]his Court has not generally required written entered judgments to adhere
to the prior non-entered, orally rendered judgments upon which they were based.” In
re O.D.S., 247 N.C. App. 711, 718 (2016) (citation omitted). “The announcement of
judgment in open court is the mere rendering of judgment, and is subject to change
before entry of judgment.” Id. (citation and internal quotation marks omitted). “A
judgment is entered when it is reduced to writing, signed by the judge, and filed with
the clerk of court.” Id. (citation and internal quotations omitted).
“What this Court has continually held[] . . . is that a notice of appeal from a
judgment rendered in open court will not vest jurisdiction in this Court until that
judgment is entered—meaning until a written judgment, generally conforming with
the judgment rendered, is filed with the appropriate clerk.” Id.
The logical continuation of the reasoning of this holding is
that jurisdiction will not vest in this Court if notice of
appeal is given after oral rendering of the judgment but
before entry of the judgment if the written judgment
entered does not generally comply with the judgment
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Opinion of the Court
rendered in open court. This is an issue of appellate
jurisdiction, not a limitation on what the trial court may
include in its written order.
Id. at 719 (second emphasis added). As this Court has previously explained in In re
O.D.S.,
the holding in Edwards that “[i]f the written judgment
conforms generally with the oral judgment, the judgment
is valid [,]”. . . does not command the converse, i.e. that any
written judgment that does not generally conform with the
oral judgment is necessarily invalid. Though there may be
situations when this is true, we can find no opinion in
which it has been held that the written and entered
judgment must always generally conform with a prior oral
rendition of that judgment in order to be valid. However, .
. . there are plenary opinions in which our appellate courts
have affirmed entered judgments and orders that do not
conform to the associated orally rendered judgments and
orders.
Id. at 720–21. This Court, however, did so hold a written order was invalid because
it did not conform to the prior oral ruling in In re J.C., 236 N.C. App. 558, 562–63
(2014). In In re J.C.,
the trial court heard arguments regarding [the]
respondent’s ability to pay for supervised visitation and her
objections to the imposition of those costs. DSS specifically
recommended that [the] respondent continue her visits
with the juveniles at a visitation center at respondent’s
expense. At the conclusion of the hearing, the trial court
made two statements which constituted its order regarding
visitation: “I’m going to adopt the recommendations put
for[th] by the Department with the exception that DSS will
supervise until they can find a replacement[,]” and “I’m
adopting every recommendation [by DSS] with the
exception of the visitation will be at Social Services every
other week.” Nonetheless, in its written order, the trial
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Opinion of the Court
court directly contradicted the order it rendered from the
bench, instead adopting DSS’s recommendation by
ordering that respondent’s visitation would continue to be
at a visitation center at respondent’s expense.
Id. In holding that the written order was invalid because it did not conform to the
oral ruling, the Court reasoned “[t]he difference between the trial court’s
pronouncement in open court and its written order is substantive and the change in
the written order cannot be said to generally conform to the court’s oral statement[,]”
and cited to State v. Sellers, 155 N.C. App. 51, 59 (2002). In re J.C., 236 N.C. App. at
563. In In re O.D.S., however, we explained that, the
holding in Sellers stands for the proposition that, when it
is apparent from the transcript that a clerical error has
been committed on the written order, remand is
appropriate so that the trial court can correct the clerical
error. Sellers does not stand for the proposition that the
trial court is always bound by its pronouncements in open
court.
247 N.C. App. at 721. Thus, we held that “[t]o the extent that J.C. is in conflict with
prior holdings of this Court, or our Supreme Court, we are bound by the prior
holdings[,]” and “[a]ssuming arguendo J.C. is not in conflict with prior opinions, we
believe it is limited to the facts in that case.” Id. at 722.
Our prior holdings regarding affirming a written order that differs from a prior
oral order, however, do not involve direct contradictions between oral and written
rulings. See id. at 722 (holding that where “the trial court did not directly contradict
itself[,]” and was instead “silent on the ground of dependency at the end of the trial,
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Opinion of the Court
apparently unaware of its omission[]” but “included both grounds for termination
argued at trial, neglect and dependency[,]” the trial court “was not bound by its
oversight in rendering judgment, and that the written order, subsequently entered,
controls”); Fayetteville Publ’g Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419,
425 (2008) (holding the written order by a trial court controlled where, although the
trial judge at trial “admitted that it did not read the entire case file, that it did not
read all the law that was handed up by the parties, and that it did not read the
affidavits in support of the [d]efendant[,]” the trial judge’s “comments during the
hearing as to its consideration of the entire case file, evidence and law are not
controlling[,] the written court order as entered is controlling” and the trial court “had
ample time to review the evidence and law, as stated in the written order”).
Here, the trial court orally ruled that it would deny any nonjusticiable claims
and requested briefing for attorney’s fees only as to Rule 68 arguments. Both parties,
however, included arguments in their briefing to the trial court regarding
Defendants’ request for attorney’s fees pursuant to N.C.G.S. § 6‑21.5 for Plaintiffs’
punitive damages claim, and the trial court noted in the written order that it had
received the briefs. See In re O.D.S., 247 N.C. App. at 718 (“[T]he trial court can
consider evidence presented following the oral rendering of the judgment in order to
better inform its subsequent written judgment.” (citation omitted)). Thus, although
the trial court’s written judgment is directly contradictory to its oral ruling, the trial
court had the authority to change its ruling “before entry of judgment[,]” and both
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Opinion of the Court
parties provided additional briefing on the matter. See id. Therefore, we now address
whether the trial court correctly ruled that Plaintiffs’ punitive damages claim was
nonjusticiable.
2. Nonjusticiable Claim
Plaintiffs argue that the trial court erred by concluding their punitive damages
claim was nonjusticiable. We disagree.
“[T]he presence or absence of justiciable issues in pleadings is . . . a question of
law that this Court reviews de novo.” Wayne St. Mobile Home Park, LLC v. N.
Brunswick Sanitary Dist., 213 N.C. App. 554, 561 (2011) (citation omitted).
N.C.G.S. § 6‑21.5 provides:
In any civil action, special proceeding, or estate or trust
proceeding, the court, upon motion of the prevailing party,
may award a reasonable attorney’s fee to the prevailing
party if the court finds that there was a complete absence
of a justiciable issue of either law or fact raised by the
losing party in any pleading. The filing of a general denial
or the granting of any preliminary motion, such as a motion
for judgment on the pleadings pursuant to [N.C.]G.S. 1A‑1,
Rule 12, a motion to dismiss pursuant to [N.C.]G.S. 1A‑1,
Rule 12(b)(6), a motion for a directed verdict pursuant to
[N.C.]G.S. 1A‑1, Rule 50, or a motion for summary
judgment pursuant to [N.C.]G.S. 1A‑1, Rule 56, is not in
itself a sufficient reason for the court to award attorney’s
fees, but may be evidence to support the court’s decision to
make such an award. A party who advances a claim or
defense supported by a good faith argument for an
extension, modification, or reversal of law may not be
required under this section to pay attorney’s fees. The court
shall make findings of fact and conclusions of law to
support its award of attorney’s fees under this section.
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Opinion of the Court
N.C.G.S. § 6‑21.5 (2025). “A justiciable issue has been defined as an issue that is real
and present as opposed to imagined or fanciful.” Sunamerica Financial Corp. v.
Bonham, 328 N.C. 254, 257 (1991) (citations and internal quotation marks omitted).
To find complete absence of a justiciable issue, “it must conclusively appear that such
issues are absent even giving the pleadings the indulgent treatment they receive on
motions for summary judgment or to dismiss.” Credigy Receivables, Inc. v.
Whittington, 202 N.C. App. 646, 655 (2010) (citation omitted).
Under this deferential review of the pleadings, a plaintiff
must either: (1) reasonably have been aware, at the time
the complaint was filed, that the pleading contained no
justiciable issue; or (2) be found to have persisted in
litigating the case after the point where he should
reasonably have become aware that pleading he filed no
longer contained a justiciable issue. Section 6-21.5 was
enacted to discourage frivolous legal action and that
purpose may not be circumvented by limiting the statute’s
application to the initial pleadings. Frivolous action in a
lawsuit can occur at any stage of the proceeding and
whenever it occurs is subject to the legislative ban.
Id.; Compare Sunamerica Fin. Corp., 328 N.C. at 258 (holding that, “when [the]
defendant’s answer raising the statute of limitations defense was filed and served, it
should have become apparent to [the] plaintiff that, barring circumstances permitting
the statute of limitations to be tolled, the complaint no longer contained a justiciable
issue”) and Burton Constr. Cleanup & Landscaping, Inc. v. Outlawed Diesel
Performance, LLC, 261 N.C. App. 317, 323 (2018) (holding there was no justiciable
issue where “[a] review of the record establishe[d], at a minimum, that [the p]laintiffs
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Opinion of the Court
persisted in litigating the case after the point where they should have reasonably
been aware that the pleadings no longer contained a justiciable issue” after one of the
plaintiffs “admitted during cross-examination that he knew the truck was ‘driveable’
when it left [the d]efendants’ shop and that his statement in [his] affidavit that the
truck was ‘undriveable’ was incorrect”), with Lincoln, 166 N.C. App. at 155 (holding
a claim for a breach of implied warranty of habitability was justiciable where “[t]here
was sufficient evidence contained in the relevant pleadings and documents to present
a justiciable issue that [the defendant] was ‘in the business of building such
dwellings’” for profit rather than building the home with intent to personally live in
it).
Regarding punitive damages, “North Carolina has consistently allowed
punitive damages solely on the basis of its policy to punish intentional wrongdoing
and to deter others from similar behavior.” Newton v. Standard Fire Ins. Co., 291
N.C. 105, 113 (1976). “They are given to the plaintiff in a proper case, not because
they are due, but because of the opportunity the case affords the court to inflict
punishment for conduct intentionally wrongful.” Cavin’s Inc. v. Atl. Mut. Ins. Co., 27
N.C. App. 698, 701–02 (1975) (citation omitted). “Punitive damages are never
awarded merely because of a personal injury inflicted nor are they measured by the
extent of the injury; they are awarded because of the outrageous nature of the
wrongdoer’s conduct.” Id.
Here, in their Complaint, Plaintiffs alleged that their lot was “graded in
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Opinion of the Court
accordance with water drainage routes[.]” During trial, however, Plaintiffs admitted
that their property was not in compliance with their property plan and that their
water ran off into Defendants’ lot:
Q. Okay. So you are aware that the HOA prohibits you from
dumping water on vacant, yet-to-be-built properties?
A. Yes.
Q. But it’s been your testimony that prior to the house
being built that your water was traversing part of
[Defendants’] property out to their street[,] correct?
A. Correct.
Q. Are you also aware that the HOA prohibits dumping
water or directing water, whatever term you want to use,
onto neighbors[] at anytime, even after houses are built?
Are you aware of that?
A. Yes.
Q. So it’s safe to say that you still want – what you want to
have happen here is for your water to continue to be
allowed to traverse over a portion of [Defendants’]
property[,] right?
A. That is the way the water was when we bought the
property.
Furthermore, during trial, Willis Aldrige, who had been in the stormwater
management business for sixteen years at the time, testified that when he had met
with Plaintiffs at their house, he informed them that the water could not come from
Defendants’ property, as the water would have to be traveling uphill:
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Opinion of the Court
Q: How did the meeting ultimately – that second time you
went out when you were still there at the request of []
[P]laintiffs . . . how did that meeting ultimately end?
A. I was shooting elevations. Mrs. Pallen was trying to
explain to me where the water was coming from and what
the issues were. And at one point she was telling me that
the water was coming from [Defendants’] property onto her
property. And I was – had my grade rod and my laser there,
and I – it’s uphill. Mrs. Pallen, it can’t – water is not going
to go uphill. It’s just going to follow the path of least
resistance. I don’t see how it can come on your property.
Plaintiffs did not provide evidence at trial, outside of their own belief and testimony,
that any water from Defendants’ lot ran off into Plaintiffs’ lot.
In concluding Plaintiffs’ punitive damages claim was nonjusticiable, the trial
court made several relevant findings of fact:
7. That shortly because the February 2023 hearing, []
Defendants received via a subpoena, a copy of [] Plaintiffs’
Ocean Ridge Landscaping Plan that was introduced as an
exhibit at trial.
8. That said landscaping plan was made available to []
Plaintiffs.
9. That said landscaping plan shows that [] Plaintiffs are
not in compliance with the landscaping plan on file
pertaining to their property.
10. That in April 2023, a trial commenced that ultimately
resulted in a mistrial due to issues with the jury on day
three of the trial.
11. That subsequent to the mistrial, [] Plaintiffs received a
proposal from Rainstorm Solutions for less than $30,000.00
that proposed a solution to [] Plaintiff[s’] long standing
water problem.
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Opinion of the Court
12. That the creation of the Rainstorm Solutions proposal
was initiated by [] Defendants who hired Rainstorm
Solutions to travel to the parties’ properties to assess the
situation and craft a solution.
13. That [] Plaintiffs also requested and received a proposal
to alleviate the ponding in their yard from their own
landscaper, but ultimately did not accept the proposal
either.
14. That the Ocean Ridge Governing documents state that
property owners cannot cause stormwater to be drained
across neighboring properties and all stormwater must
drain to an approved stormwater outlet.
15. That in the present case, the approved stormwater
outlet consisted of the golf course pond to the rear of the
parties’ homes and to an outlet in the street in from of []
Plaintiffs’ home.
16. That [] Plaintiffs at all times relevant to the present
lawsuit, were aware that a representative of the property
owners’ association granted [] Defendants permission to
build a small berm in [] Defendants’ yard to remain in place
only until [] Plaintiffs fixed the grading to their property.
20. That prior to the trial, the [c]ourt dismissed [] Plaintiffs’ claim for Declaratory Judgment.
21. That on February 13, 2025, the Jury deliberated for less
than one hour and found in [] Defendants’ favor while also
not awarding [] Defendants any relief on their
counterclaims.
22. That subsequent to the jury’s verdict, the [c]ourt
dismissed [] Plaintiffs’ punitive damages claim as being
moot.
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Opinion of the Court
From a review of the Record, transcripts, and the trial court’s findings, we
agree with the trial court that “there was a complete absence of a justiciable issue of
either law or fact raised by [] Plaintiffs supporting a claim for punitive damages[.]”
Plaintiffs continued “persist[ing] in litigating the case after the point where [they]
should reasonably have become aware that [the] pleading [they] filed no longer
contained a justiciable issue.” See Credigy Receivables, 202 N.C. App. at 655.
Accordingly, we affirm the trial court’s decision to award attorney’s fees.
IV. Conclusion
Upon review, we conclude the trial court was without authority to award
attorney’s fees in a private nuisance case pursuant to Rule 68; however, we affirm
the trial court’s award of attorney’s fees pursuant to N.C.G.S. § 6‑21.5 where
Plaintiffs persisted in litigating a nonjusticiable issue.
AFFIRMED.
Chief Judge DILLON and Judge MURRY concur.
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