From Poimboeuf v. Merritt, decided today by the N.C. Court of Appeals (No. 23-229), in an opinion by Judge John Tyson, joined by Judges Zachary and Flood; some quick and likely not fully reliable Googling suggests that Poimboeuf wasn’t trained as a lawyer, though Riselvato had been a paralegal:
Kevin Poimboeuf’s … long-term girlfriend, Shelley Welch Riselvato …, owns Wildflower Preschool, a farm and nature preschool …. Wildflower Preschool bordered and shared an access easement with the adjacent Merritt’s Gravel Pit, Inc. …. Merritt’s Gravel Pit is owned and operated by Defendant Tony [Merritt]. Defendant Ilene [Merritt] is not an employee on the payroll of Merritt’s Gravel Pit, but she often helps with the business ….
Katelyn Merritt …, Tony’s and Ilene’s daughter, is the Vice President of Merritt’s Gravel Pit. TIK, LLC … owns the land from where Merritt’s Gravel Pit operates. Tony, Ilene, and Katelyn Merritt are each one-third member-owners of TIK.
Riselvato and the Merritts have endured a contentious relationship since Riselvato first visited the property adjacent to Merritt’s Gravel Pitt. Shortly after the property was listed for sale, Riselvato’s realtor instructed her to review the property. While there, Tony and Katelyn confronted Riselvato, accused her of trespassing, told her the property was not for sale, and reported her to the Orange County Sheriff’s Office. Tony’s mother owned the property Riselvato eventually purchased, and selling the property was a source of contention amongst members of the Merritt family.
Once Riselvato and Poimboeuf began constructing Wildflower Preschool, Riselvato’s and Poimboeuf’s relationship with the Merritt family quickly deteriorated. Tony accused Poimboeuf of exposing his penis in the presence of children and reported Poimboeuf to law enforcement officers. Although the Merritts filed a complaint at the magistrate’s office to bring criminal charges against Poimboeuf, those charges were later dismissed.
The Merritts also accused Riselvato and Poimboeuf of cutting their telephone line, which ran along the easement between the two properties. Lastly, the Merritts accused Poimboeuf of burning down the barn, where Wildflower Preschool previously held classes, along with burning down a house in Charlotte.
This animosity led to two explosive interactions between the Merritts and Poimboeuf and Riselvato. In April 2020, Riselvato began constructing a wall on her property line to reduce the noise coming from Merritt’s Gravel Pit during school hours. Poimboeuf was helping Riselvato with the construction. Tony drove a blue tractor onto Riselvato’s side of the easement, and at some point both Ilene and Katelyn joined the confrontation. This encounter quickly became heated, and during the conversation Tony made sexual gestures towards his crotch when accusing Poimboeuf of exposing his penis. The Merritts’ “statements were loud, sustained, and contained offensive language.” Poimboeuf recorded the interaction.
On another occasion in May 2020, Tony used machinery to uproot a large pine tree separating Merritt’s Gravel Pit from Wildflower Preschool. Riselvato leaped in front of the excavator to prevent Tony from removing the remaining trees. Katelyn, Ilene, and Poimboeuf were also present. Tony and Ilene yelled at Riselvato and Poimboeuf for over two hours during this encounter, and, again, the “statements were loud, sustained, and contained offensive language.” Poimboeuf recorded this conversation, too.
During the two encounters, Tony made the following statements to Poimboeuf:
“F–ked with a tractor again, you egg-headed son-of-a-b–ch.” “Hey, we found out about that house you burnt down in Charlotte, too, big boy. You a barn burning motherf–ker, ain’t ya?” “You got a tractor down there you f–ked with. You got pictures where you took trespassing. You have placed yourself at the scene. You f–ked with my excavator.” “Motherf–ker took his thumb and his forefinger and go owa, owa, owa. G–damn, the boys think that’s funny as hell, bro.”
Ilene directed the following statements to Poimboeuf:
“Kevin, why don’t you tell ’em that they dismissed the charges of you shaking your weenie at us. That is disgusting.” “He got in trouble, but they dismissed it. Carrboro didn’t want y’all to be exposed that y’all do that stuff to children.” “It’s pitiful what you do to children.” “Don’t expose yourself like you did before.” “What did they tell you they let you off for, huh? When you exposed yourself in front of the preschool? What did they say they dropped the charges for, do you know? Do you know why they dropped the charges? Yes[,] when you exposed yourself. You remember, don’t you[,] Kevin?”
Poimboeuf sued for defamation, representing himself; the jury ruled in his favor, and awarded a total of $10,000 in presumed damages against Tony and Ilene plus $70,000 in punitive damages against Tony, Ilene, and Merritt’s Gravel Pit. The appellate court affirmed, concluding, among other things:
The trial court heard all of the evidence, watched the videos, and concluded: “Taken in the light most favorable to the Plaintiff and considering the circumstances and the Defendants’ words, tones, and gestures, the Defendants imputed crimes of moral turpitude to the Plaintiff and made statements that were actionable per se.” The trial did not err as a matter of law when it submitted the evidence to the jury and let the jury’s verdict stand.
The trial court did not err by allowing the jury to determine whether Merritt’s Gravel Pit was liable for punitive damages [even in the absence of compensatory damages against it], because Tony [an officer of Merritt’s] “participated in or condoned the conduct.” Punitive damages may be awarded in the absence of nominal damages, as long as nominal damages could have been awarded….
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