Opinion
No. COA10-469
Filed 1 March 2011 This case not for publication
Appeal by Plaintiffs from an order entered 12 January 2010 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2010.
Ferguson, Scarbrough, Hayes, Hawkins Demay, P.A. by James E. Scarbrough and James R. DeMay for Plaintiff-Appellant River Run Limited Partnership. Poyner Spruill LLP by Thomas L. Ogburn III and Karen H. Chapman for Defendants-Appellees CCC Enterprises, Inc. and John and Marcia Haddock. Kennedy Wulfhorst, PA by F. Wesley Sigmon for Defendant-Appellee Equus Merda, Inc. Bolster Rogers, PC by Jeffrey S. Bolster and Meredith L. Cushing for Defendants-Appellees Steven and Sheri Wolfe. York Williams Lewis, LLP by R. Gregory Lewis and David R. DiMatteo for Defendants-Appellees Murphy, Pearn, Salpietra, Sturgill, Arrington, Suprock, Cortese, Brueggeman, French, Hoagland and Mangiapane. Robinson, Elliott Smith by Lew Smith for Defendants-Appellees Kenneth C. Kimberly L. Burnette. Louis J. Sellman, pro se. Marisa A. Sellman, pro se.
Mecklenburg County No. 08-CVS-1438.
Plaintiff, River Run Limited Partnership, appeals from a trial court order granting summary judgement in favor of Defendants. Because the trial court appropriately determined that no genuine issues of material fact were in dispute, we affirm.
Plaintiff, is the developer of River Run Subdivision in Davidson, North Carolina. The subdivision is a residential community consisting of approximately 700 residential homes, a golf course, and a country club. Plaintiff began developing the residential neighborhood in 1989. On 25 August 1989, Plaintiff recorded the "Declaration of Covenants and Restrictions" for River Run subdivision. In September 1990, Barnwell and Vicki Ramsey acquired a lot located within Plaintiff's subdivision.
The lot acquired by the Ramseys bordered a right-of-way known as Cannonade Lane. On 8 June 1993, the Town of Davidson abandoned the Cannonade Lane right-of-way. As a result of the abandoned right-of-way, Plaintiff and the Ramseys each acquired title "from their respective lot line to the center line of the former Cannonade Lane [right-of-way.]" On 1 November 2006 Plaintiff conveyed, by deed, its interest in the Cannonade Lane right-of-way to the Ramseys. Included in the deed, were a number of restrictions generally prohibiting the use of the former right-of-way as a means of access to any other lot in the subdivision. Immediately following the receipt of the deed conveying Plaintiff's interest in Cannonade Lane, the Ramseys conveyed their lot to Defendants, the Sellmans.
In December 2006, developers were in the process of developing several subdivisions on property adjoining the River Run Subdivision. A representative from the developers contacted the Sellmans seeking a sewer easement under the former Cannonade Lane to connect the public sewer line located in the River Run subdivision to the adjoining subdivision. On 19 November 2007, the Sellmans granted Equus Merda, Inc. an easement for the "installation and maintenance of water and sewer lines[.]"
By letter dated 11 December 2007, Plaintiffs informed the Sellmans that construction of the sewer line violated the November 2006 deed restrictions and demanded that "all use of the former [right-of-way] in violation of the restriction[s] stop immediately and that the sewer line and all other improvements constructed within the portion of the former [right-of-way] subject to the restriction be removed." On 22 January 2008, Plaintiff filed a complaint seeking a declaratory judgment that the Equus sewer easement violated restrictions included in the "Declaration of Covenants and Restrictions" and the 2006 deed. Plaintiff filed an amended complaint on 20 May 2009. The River Run Property Owners' Association was granted leave to intervene as a Plaintiff. All parties filed cross-motions for summary judgment. After reviewing the "motions, the affidavits of record, discovery responses of the parties, deposition testimony, and all other matters of record," the trial court determined that there was no genuine issue of material fact and that Defendants were entitled to judgment as a matter of law. On 2 February 2010, Plaintiff filed notice of appeal. River Run Property Owners' Association did not file notice of appeal from the trial court's order.
On appeal Plaintiff contends that the trial court erred in denying its motion for summary judgment and granting Defendants' motion for summary judgment. We disagree. A trial court's decision to grant a motion for summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56 (2009). "[T]he party moving for summary judgment bears the burden of establishing the lack of any triable issue." Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001). Our Court will view the pleadings and the record evidence in a light most favorable to the non-moving party and draw all reasonable inferences in their favor. Barger v. McCoy Hillard Parks, 346 N.C. 650, 662, 488 S.E.2d 215, 221 (1997).
I.
Plaintiff first specifically argues that the sewer easement conflicts with restrictions included in the 2006 deed. We disagree. "In construing restrictive covenants, the fundamental rule is that the intention of the parties governs, and that their intention must be gathered from study and consideration of all the covenants contained in the instrument or instruments creating the restrictions." Long v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 238 (1967). "Restrictive covenants are to be strictly construed and `all ambiguities will be resolved in favor of the unrestrained use of land.'" Page v. Bald Head Ass'n, 170 N.C. App. 151, 155, 611 S.E.2d 463, 466 (2005) (quoting Hobby Son v. Family Homes, 302 N.C. 64, 70, 274 S.E.2d 174, 179 (1981)). "Nevertheless, such covenants must be reasonably construed to give effect to the intention of the parties, and the rule of strict construction may not be used to defeat the plain and obvious purposes of a restriction." Black Horse Run Ppty. Owners Assoc. v. Kaleel, 88 N.C. App. 83, 85, 362 S.E.2d 619, 621 (1987).
However, construing the intention of the parties from a reading of the restrictive covenants can often prove difficult. "It is a matter of common understanding that the pertinent terms which guide a legal relationship between parties are not always clearly defined, if they are defined at all." Hobby Son, Inc., 302 N.C. at 71, 274 S.E.2d at 179.
In interpreting ambiguous terms in restrictive covenants, the intentions of the parties at the time the covenants were executed "ordinarily control," and evidence of the situation of the parties and the circumstances surrounding the transaction is admissible to determine intent. "But it . . . is not primarily the intention of the parties which the court is seeking, but the meaning of the words at the time and place when they were used."
Angel v. Truitt, 108 N.C. App. 679, 681, 424 S.E.2d 660, 662 (1993) (internal citations omitted). "Intent is . . . properly discovered from the language of the document itself, the circumstances attending the execution of the document, and the situation of the parties at the time of execution." Id. at 682, 424 S.E.2d at 662. Therefore, to insure that our courts follow the parties' intentions, we will review each part of the deed restrictions giving effect to the natural meaning of the words and phrases used therein "provided that the meanings of the relevant terms have not been modified by the parties to the undertaking." Hobby Son, 302 N.C. at 71, 274 S.E.2d at 179 (citations omitted); see also Parkwood Ass'n v. Capital Health Care investors, 133 N.C. App. 158, 161, 514 S.E.2d 542, 544 (1999).
Because the restrictions noted in the deed here are ambiguous, the trial court correctly construed this provision in favor of the unrestrained use of the property. See Page, 170 N.C. App. at 155, 611 S.E.2d at 466. The 2006 deed contained the following restriction on the use of the property:
1. [T]he Property shall be used exclusively for access to Lot 6 in block 10 of River Run Subdivision (the "Lot") as shown on a plat thereof recorded in Map Book 23, Page 283 Mecklenburg County Public Registry and for no other purpose. The Property shall not be used as access to any other property.
Plainly read, the first sentence of the deed restriction prohibits use of the former right-of-way for purposes other than access to the Sellman lot. However, this interpretation of the restriction would prevent all use of the subject property for purposes other than access, limiting all other practical uses. It is doubtful that this was the intended result when the restriction was drafted. Providing clarification, the second sentence of the restriction further instructs that the subject property cannot be used to access any other property. When the restriction is read in its entirety, it appears its purpose was to prevent the subject property from being used as a means to access other lots located within the subdivision. This interpretation corresponds with the circumstances at the time the deed was recorded. First, the subject property originally existed as a right-of-way, before it was abandoned at the request of the developer. Additionally, because the Sellmans' home was not completed at the time the deed restrictions were drafted, there was no way for Plaintiff to be certain that the former right-of-way would be used for means other than access for the property. Accordingly, after a review of the deed restrictions and their surrounding circumstances, it is evident that the first deed restriction was intended to prohibit use of the subject property as a means of access to another property.
Plaintiffs next argue that the trial court erroneously failed to determine that the sewer easement violated the second restriction included in the 2006 deed. We disagree. In its second restriction on the use of the property, the 2006 deed provides that:
2. The property shall be combined with the Lot and may not be sold, conveyed, leased, encumbered or otherwise alienated except in combination with the Lot.
Our Court has explained that "[a]n encumbrance is `[a] claim, lien, charge, or liability attached to and binding real property.'" Commonwealth Land Title Ins. Co. v. Stephenson, 101 N.C. App. 379, 381, 399 S.E.2d 380, 381 (1991) (quoting Black's Law Dictionary 473 (5th ed. 1979)). Here, while the sewer easement running under the subject property is arguably an encumbrance, Juhan v. Cozart, 102 N.C. App. 666, 670, 403 S.E.2d 589, 591 (1991), there is no evidence that the property was encumbered separate and apart from the entire lot. There is no evidence in the record to suggest that the lot was divided and only the subject premises was encumbered by the sewer easement. When read in context with the first deed restriction, it is evident that the covenant was created to prevent lot owners from encumbering only a portion of the subject premises.
II.
In their second argument on appeal, Plaintiffs contend that the trial court erroneously failed to determine that the sewer easement violated the restrictive covenants. We disagree and hold that Plaintiff failed to properly preserve this argument for appellate review. Where a party fails to raise an issue in its pleadings, or argue it before the trial court, it will not be considered for the first time on appeal. See Merritt, Flebotte, Wilson, Webb Caruso, PLLC v. Hemmings, 196 N.C. App. 600, 606, 676 S.E.2d 79, 84 (holding that a breach of contract issue were not properly preserved for appellate review where the defendant failed to raise the issue in its pleadings or argue it before the trial court), disc. review denied, 363 N.C. 655, 686 S.E.2d 518 (2009). In the present case, Plaintiff asserts that the sewer easement violates a restrictive covenant providing that "[n]o lot shall be occupied or used except for single-family residential purposes[.]" While Plaintiff did assert in its pleadings that the sewer easement violated a number of restrictive covenants, Plaintiff failed to specifically argue that the easement was a violation of the covenant limiting use of the lot to single family residential purposes. Additionally, Plaintiff failed to specifically raise this argument before the trial court at the summary judgment hearing. Because Plaintiff failed to preserve this issue for appellate review, we dismiss Plaintiff's argument.
Affirmed.
Judges McGEE and HUNTER, JR. concur.
Report per Rule 30(e).