Summary
In Wendell v. Long, 107 N.C. App. 80, 418 S.E.2d 825 (1992), plaintiffs were property owners in a residential subdivision and asked the court, under the Declaratory Judgment Act, to declare the restrictive covenants in their neighbors' deeds valid.
Summary of this case from Bueltel v. Lumber Mut. Ins. Co.Opinion
No. 9115SC452
Filed 21 July 1992
Declaratory Judgment Actions 15 (NCI4th) — intent to violate restrictive covenants — no justiciable controversy Plaintiffs' complaint failed to allege a justiciable controversy sufficient to give the court jurisdiction under the Declaratory Judgment Act where they alleged that defendants divided a subdivision lot into two lots and filed a plat showing a "proposed house site" on the western portion, that there is an existing dwelling on the eastern portion, and that defendants "intend to violate" the restrictive covenants applicable to their property by building a second dwelling thereon.
Am Jur 2d, Declaratory Judgments 25 et seq.
Supreme Court's view as to what is a "case or controversy" within the meaning of Article III of the Federal Constitution or an "actual controversy" within the meaning of the Declaratory Judgment Act. 40 L.Ed.2d 783.
Appeal by defendants from Battle (F. Gordon), Judge. Judgment entered 23 January 1991 in Superior Court, ORANGE County. Heard in the Court of Appeals 11 March 1992.
Northen, Blue, Little, Rooks, Thibaut Anderson, by Jo Ann Ragazzo Woods, for plaintiff, appellees.
Maxwell Hutson, P.A., by Alice Neece Moseley and Ruth A. McKinney, for defendant, appellants.
Judge WALKER dissenting.
This is an action brought pursuant to the Declaratory Judgment Act, G.S. 1-253 et seq., by plaintiffs, who are record owners of certain lots within the Rocky Ridge subdivision in Chapel Hill, North Carolina, "to enforce the restrictive covenants of the subdivision."
In their complaint, plaintiffs allege the following:
7. That Defendants were the owners of all of Lot 56, Rocky Ridge, and that in December 1988, Defendants subdivided Lot 56 into two (2) lots, this subdivision being platted and recorded in Book 51, page 157, Orange County Registry.
8. That the existing dwelling on Lot 56 is entirely on the eastern tract, designated as "Lot 1" on the aforesaid plat, which has been conveyed to a third party, David G. Martin, Jr.
9. That the western tract designated as "Lot 2" of the subdivision of Lot 56, Rocky Ridge, Plat Book 51, page 157, Orange County Registry, shows the location of a "proposed house site."
10. That the construction of a second house on Lot 56, Rocky Ridge, is a violation of the Restrictive Covenants of the Rocky Ridge Development.
16. That Defendants intend to violate the Restrictive Covenants applicable to Lot 56 and all of the subdivision known as Rocky Ridge Development by proposing to build or allow to be built a second dwelling on Lot 56.
Plaintiffs prayed that the court declare the restrictive covenants contained in the deeds to be valid and "order that neither Defendants, nor any subsequent owner of Lot 56, . . . in Rocky Ridge Development, build more than one dwelling house on such lot . . . ." A trial was held before the judge on 31 December 1990, and Judge Battle entered a judgment on 23 January 1991 making findings of fact and conclusions of law and ordering that ". . . not more than one dwelling house may be erected on Lot 56 . . . and Defendants and subsequent owners of Lot 56 are prohibited from building more than one dwelling house thereon." Defendants appealed.
Although neither party raises the question in their briefs, we ex mero motu consider whether plaintiffs have alleged in their complaint an actual justiciable controversy sufficient to give the superior court jurisdiction to determine this matter pursuant to the Declaratory Judgment Act.
The authority of our court to render declaratory judgments is set forth in G.S. 1-253 which provides in part:
Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed . . . .
Although not expressly provided by statute, courts have jurisdiction to render declaratory judgments only when the complaint demonstrates the existence of an actual controversy. N.C. Farm Bureau Mut. Ins. Co. v. Warren, 89 N.C. App. 148, 365 S.E.2d 216, disc. review denied, 322 N.C. 481, 370 S.E.2d 226 (1988); Sharpe v. Park Newspapers of Lumberton, 317 N.C. 579, 347 S.E.2d 25 (1986); Gaston Bd. of Realtors v. Harrison, 311 N.C. 230, 316 S.E.2d 59 (1984). To satisfy the jurisdictional requirement of an actual controversy, it must be shown in the complaint that litigation appears unavoidable. N.C. Farm Bureau, supra, Gaston Bd. of Realtors, supra. Mere apprehension or the mere threat of an action or suit is not enough. Gaston Bd. of Realtors, supra.
In the present case, plaintiffs' complaint affirmatively demonstrates that there is no actual controversy existing between the parties. In paragraph 9 of the complaint, plaintiffs, allege that a "proposed house site" is noted on the Plat Book description of defendants' property. They further allege in paragraph 16, that defendants, "intend to violate" the restrictive covenants applicable to their property. Plaintiffs do not allege that defendants have acted in violation of these covenants, but that they anticipate some future action to be taken by defendants which would result in a violation. "The courts of this state do not issue anticipatory judgments resolving controversies that have not arisen." Bland v. City of Wilmington, 10 N.C. App. 163, 164, 178 S.E.2d 25, 26 (1970), rev'd on other grounds, 278 N.C. 657, 180 S.E.2d 813 (1971).
Therefore, the superior court did not have jurisdiction to render a declaratory judgment in the present case. The judgment of the trial court is vacated, and the matter is remanded for entry of an order dismissing the action.
Vacated and remanded.
Judge ORR concurs.
Judge WALKER dissents.