Opinion
No. COA12–1460.
2013-06-4
Toni ANWAY, Dr. Ernest Berrisford, Elizabeth Bosarge, Calvin Bosarge, Calvin Bosarge, Jr., Alonzo Edwards, Terry Fleming, Regina C. Fleming, Iris J. Fleming, Jerry V. Fleming, Hector Garcia, Elizabeth Langdon, Paul Mees, Gladys Mess, Plaintiffs, v. SILVER CREEK COMMUNITY PROPERTY OWNERS ASSOCIATION, INC., Defendant.
LeCroy Law Firm, PLLC by M. Alan LeCroy for plaintiffs-appellants. Starnes, Aycock, Haire, Hogan, Saunders & Rigsbee, PLLC by James B. Hogan for defendant-appellee.
Appeal by plaintiffs from order entered 9 July 2012 by Judge James U. Downs in Burke County Superior Court. Heard in the Court of Appeals 24 April 2013. LeCroy Law Firm, PLLC by M. Alan LeCroy for plaintiffs-appellants. Starnes, Aycock, Haire, Hogan, Saunders & Rigsbee, PLLC by James B. Hogan for defendant-appellee.
STEELMAN, Judge.
Where the trial court concluded plaintiffs were estopped from challenging the actions and authority of Silver Creek and plaintiffs do not challenge this conclusion of law on appeal, the judgment of the trial court is affirmed.
I. Factual and Procedural Background
In the early 1980s, Silver Creek Properties, Inc., and Silver Creek Development Corporation were the corporate entities that bought the real property that became the Silver Creek Community. In 1989, Silver Creek Community Property Owners Association, Inc. (defendant) was formed as a non-profit corporation for the purpose of providing “a recreational and residential resort comprised of homesites in Burke County, North Carolina, in order to promote the quality of human recreational life, fitness and sports, hobbies, leisure and pastimes.” Defendant's articles of incorporation provided that the corporation shall have no members and that the directors of the corporation shall be elected in the manner provided in the by-laws.
At defendant's general membership meeting held 27 August 1990, defendant's by-laws were adopted. The by-laws outlined the specific purposes of defendant as: “maintenance of all streets and roads within the community[;]” “upkeep and maintenance of all recreation facilities, greenbelts, and other common areas; security and fire protection; water system construction and maintenance; and other services commonly provided to members by similar association.” The by-laws provided that every property owner automatically became a member of defendant upon purchasing real property in the Silver Creek Community and that each property owner was entitled to one vote. The by-laws also provided for annual meetings. Through the process of its annual meetings, defendant began imposing annual dues and maintenance fees upon all property owners.
During the October 2006 meeting, the membership voted on and adopted the second amendment to its constitution and bylaws. This amendment declared that all sections of the North Carolina Planned Community Act, Chapter 47F of the North Carolina General Statutes, applied to defendant and its members. The act provided defendant with the authorization to impose and enforce liens on lots of members who were delinquent in the payment of their dues.
Toni Anway, Ernest Berrisford, Elizabeth Bosarge, Calvin Bosarge, Calvin Bosarge, Jr., Alonzo Edwards, Terry Fleming, Regina C. Fleming, Iris J. Fleming, Jerry V. Fleming, Hector Garcia, Elizabeth Langdon, Paul Mees, and Gladys Mees (collectively plaintiffs) are owners of lots in the Silver Creek Community. Each of the plaintiffs at various times decided not to pay the fees imposed by defendant, but continued to use the amenities of the subdivision, which were funded by other property owners' payments. The revenues from the fees and assessments paid for the maintenance and upkeep of defendant's amenities, including roads and the water system.
Three of the plaintiffs, Calvin Bosarge, Calvin Bosarge, Jr., and Hector Garcia took title to their respective lots by virtue of foreclosure actions by defendant. Defendant had filed notices of lien in the Office of the Clerk of Superior Court for Burke County when the previous lot owners' annual membership dues and assessments were not paid. Defendant foreclosed on the properties pursuant to the Planned Community Act, N.C. Gen.Stat. § 47F–3–116, and its by-laws. These three plaintiffs each received a “lien foreclosure deed” after the foreclosure sale.
Five plaintiffs were elected to serve as various officers of defendant. These plaintiffs included: Iris J. Fleming, who served as Director and Secretary of Silver Creek for two years from October 1999 to October 2001; Regina Fleming, who served as a Director and Vice President of Silver Creek for one year from October 2001 to October 2002; Paul Mess, who served as Director and Vice President/President of Silver Creek for two years from October 2005 to October 2007; Gladys Mees, who served as Director and Treasurer of Silver Creek for ten years from October 1996 to October 2005; and Alonzo Edwards, who served as Director and Vice President/Member at Large of Silver Creek for two years from October 2005 to October 2007 and was acting vice president at the time the second amendment was adopted. Plaintiff Terry Fleming was elected as Director of Silver Creek for the 2009–2010 calendar year, but did not serve because of delinquent dues. Plaintiff Elizabeth Bosarge served on the Hospitality Committee of Silver Creek and is married to Calvin Bosarge, Sr.
On 7 December 2010, plaintiffs filed the complaint and petition in this case alleging that defendant was illegally placing liens upon their properties in an attempt to foreclose upon their properties. The complaint sought a declaratory judgment from the court as to: whether defendant has the authority to control plaintiffs' properties and to enforce any recorded restrictions or covenants against plaintiffs' properties; whether plaintiffs are subject to the by-laws or board decisions of defendant; and whether the decisions of defendant since October 2007 have complied with defendant's by-laws. Plaintiffs also requested judicial dissolution of defendant pursuant to N.C. Gen.Stat. § 55A–14–30, a temporary restraining order, and a preliminary injunction to enjoin defendant from any further action, resolution, or business decision until this matter was resolved. The trial court granted plaintiffs' temporary restraining order on 3 January 2011 and the preliminary injunction on 4 February 2011. Defendant filed an answer and counterclaim, seeking a monetary judgment against each plaintiff for outstanding dues and assessments, and monetary damages from plaintiffs Ernest Berrisford and Elizabeth Bosarge for tortious interference with contract. Defendant also requested a declaratory judgment to determine that defendant has the authority to control the real property owned by plaintiffs, to enforce restrictions, to file claims of lien on any lot owner, and to foreclose on delinquent lot owners; that plaintiffs were subject to the by-laws; that the actions, resolutions and business decisions of the Board of Directors reflect the actions of defendant; that defendant is successor in title to Silver Creek Properties, Inc., Silver Creek Springs Development Corporation, and Silver Creek Property Owners Association, Inc.; and that all references in recorded deeds at the Burke County Registrar of Deeds to Silver Creek Property Owner Association or Silver Creek Property Owners Association, Inc., made prior to 2001 are references to defendant.
On 17 June 2011, defendant's motion for partial summary judgment was granted. The trial court dismissed plaintiff Elizabeth Langdon for lack of standing, and dismissed plaintiffs' claim for judicial dissolution of defendant. The parties subsequently dismissed with prejudice plaintiffs Jerry V. Fleming and Ernest Berrisford from the complaint and counterclaim. On 4 January 2012, the trial court dismissed plaintiff Toni Anway from the complaint and counterclaim. None of the parties requested a jury trial and the case was heard by the trial court, without a jury, pursuant to Rule 38(d) of the North Carolina Rules of Civil Procedure.
On 9 July 2012, the trial court filed its judgment and order containing detailed findings of fact and conclusions of law. The trial court concluded that plaintiffs were estopped under a theory of equitable estoppel from challenging the actions and authority of defendant. The trial court further concluded that that Silver Creek has always operated as a nonprofit corporation with voting non-members and is governed by its Board of Directors pursuant to its by-laws. The trial court declared that defendant has the authority to control the real property within the Silver Creek Springs development, to enforce the restrictions, to file claims of lien on lots which become delinquent, and to foreclose on any lot within Silver Creek Springs development which becomes delinquent. The trial court ordered that defendant recover from each plaintiff outstanding dues and assessments. All remaining portions of defendant's counterclaims were dismissed with prejudice.
Plaintiffs appeal.
II. Standard of Review
“The standard of appellate review for a decision rendered in a non-jury trial is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.” Sessler v. Marsh, 144 N.C.App. 623, 628, 551 S.E.2d 160, 163 (2001). Unchallenged findings of fact are presumed to be supported by competent evidence and are binding on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
III. Estoppel
The trial court's judgment and order was based on the theory of estoppel. In ruling that defendant could recover dues and assessments from plaintiffs, the trial court concluded: that each and all of the plaintiffs “have willingly and intentionally participated in the governance of Silver Creek, and have paid dues and assessments duly assessed by Silver Creek[;]” “have derived some benefit from being members of Silver Creek[;] and “are estopped under a theory of equitable estoppel from challenging the actions and authority of Silver Creek.”
Plaintiffs do not challenge any of the trial court's findings of fact and their challenges to the trial court's conclusions of law address the validity of various documents of defendant, such as the by-laws, declarations, and deed covenants. These arguments are unrelated to the theory of estoppel. Plaintiffs do challenge the conclusion that they are estopped, but state that “the resolution of this issue is not essential to this [C]ourt's determination of the declaratory issues outlined above.” The sole case they cite as basis for their challenge to the trial court's conclusion of law that plaintiffs are estopped from challenging the authority of defendant is Armstrong v. Ledges Homeowners Ass'n, Inc., 360 N.C. 547, 633 S.E.2d 78 (2006). Armstrong provides no support for plaintiff's argument and in fact, is silent on the issue of estoppel. Since estoppel was the basis of the trial court's rulings, it is essential to our review of the judgment and order. Because plaintiffs have not successfully challenged this conclusion on appeal, we must affirm the trial court's conclusion of law that plaintiffs “are estopped under a theory of equitable estoppel from challenging the actions and authority of Silver Creek.”
Because we have affirmed the ruling of the trial court on equitable estoppel, we need not address plaintiff's remaining arguments.
The order of the trial court is affirmed.
AFFIRMED.