Real Property – Civil Practice – Declaratory Judgment – Jury Issues – Fencing & Drainage

The plaintiff-homeowners sought a declaratory judgment as to their rights and duties with respect to the automatic approval of their requests to install fencing and drainage control (because the defendant homeowners’ association waited more than 30 days to respond) and whether the conditions included in the HOA’s untimely approval were valid or applicable. The trial court cited issues of fact – such as where to start measuring dimensions – in deciding to submit plaintiffs’ claims to a jury. Because it is within the trial court’s discretion to issue a declaratory judgment and there is no clear abuse of discretion here, the trial court did not err in submitting these issues to the jury.

We affirm the trial court’s judgment entered upon the jury’s verdict. We vacate the orders entered upon plaintiffs’ post-trial motions.

Plaintiffs also sought a declaratory judgment as to whether mounded concrete constituted support for their fence or a concrete barrier to the HOA’s desired drainage system. The trial court did not err in submitting this issue to the jury.

Plaintiffs had already filed a notice of appeal of the trial court’s final judgment when the trial court denied plaintiffs’ N.C. R. Civ. P. 50 and 59 motions. The trial court was without jurisdiction to enter these orders.

Aziz v. Heatherstone Homeowners Association, Inc. (Lawyers Weekly No. 012-210-23, 10 pp.) (Jefferson Griffin, J.) Appealed from Cabarrus County Superior Court (Martin McGee, J.) Kenneth Andresen for plaintiffs’ Gavin Reardon and Harmony Taylor for defendant. North Carolina Court of Appeals (unpublished)