Figure Eight Beach Homeowners' Ass'n v. Raymond Clifton Parker , 62 N.C. App. 367 ( 1983 )

303 S.E.2d 336 (1983)

FIGURE EIGHT BEACH HOMEOWNERS' ASSOCIATION, INC.
v.
Raymond Clifton PARKER.
FIGURE EIGHT BEACH HOMEOWNERS' ASSOCIATION, INC.
v.
H.P. LAING and wife, K.G. Laing.

No. 825DC738.

Court of Appeals of North Carolina.

June 7, 1983.

Hogue, Hill, Jones, Nash & Lynch by William L. Hill, II, Wilmington, for plaintiff-appellee.

Harold P. Laing, Wilmington, for defendants-appellants.

HILL, Judge.

Defendants' sole exception is to the entry of judgment by the trial court in this matter. Defendants assign as error the trial court's granting of plaintiff's motion for summary judgment and denial of defendants' motion for summary judgment. On appeal defendants advance three questions:

I. Is restrictive covenant number 8 of the Declaration of Restrictive Covenants for Figure Eight Island Company unenforceable due to its vagueness, uncertainty, and failure to state an ascertainable standard?

II. Are the restrictive covenants upon which the plaintiff-appellee relies enforceable only by the original grantor?

III. Are the covenants upon which the plaintiff-appellee relies unenforceable as against public policy?

As plaintiff points out in his brief, only the first of these questions was the issue before the trial court. The scope of our consideration is therefore properly limited only to the first question. Hall v. Hall, 35 N.C.App. 664, 242 S.E.2d 170, disc. rev. denied, 295 N.C. 260, 245 S.E.2d 777 (1978). We have nevertheless considered the other questions presented by defendants' appeal and the arguments offered in support thereof. We find defendants' contentions with respect to these questions to be without substantial merit.

The sole question remaining for our consideration is whether the trial court acted properly in granting plaintiff's motion for summary judgment and denying defendants' motion for summary judgment. Defendants contend that paragraph 8 of the Declaration of Restrictive Covenants recorded by the Figure Eight Island Co. is vague and uncertain and therefore unenforceable. For this reason, defendants argue, the trial judge's grant of summary judgment for plaintiff was improper.

The law in North Carolina is that on a motion for summary judgment under Rule 56, N.C. Rules of Civil Procedure, the test to be applied by the trial court is whether, on the basis of the materials submitted by the parties supporting and opposing the motion, there is any genuine issue as to any material fact. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). If no such issue exists, the remaining question for the court's determination is whether the moving party is entitled to judgment as a matter of law. In re Will of Edgerton, 29 N.C.App. 60, 223 S.E.2d 524, cert. denied, 290 N.C. 308, 225 S.E.2d 832 (1976).

In support of their argument, defendants cite us to the cases of Beach Mountain Property Owner's Association v. Seifart, 48 N.C.App. 286, 269 S.E.2d 178 (1980), and Snug Harbor Property Owners Association v. Curran, 55 N.C.App. 199, 284 S.E.2d 752 (1981), disc. rev. denied, 305 N.C. 302, 291 S.E.2d 151 (1982), for the following proposition recited in defendants' brief:

Assessments based on restrictive covenants lacking some ascertainable standard by which a court can objectively determine both the amount of the assessment and the purpose for which it is levied are void and unenforceable.

Defendants overread both cases.

Beech Mountain, supra, considered for the first time in this jurisdiction the matter of restrictive covenants which imposed affirmative obligations on the grantee of a deed. These affirmative obligations consisted of monetary assessments. In Beech Mountain, this Court upheld the trial court's grant of summary judgment for defendants-property owners. Speaking through Judge Parker, the Court said:

[J]ust as covenants restricting the use of property are to be strictly construed against limitations on use, [citation,] and will not be enforced unless clear and unambiguous, [citation,] even more so should covenants purporting to impose affirmative obligations on the grantee be strictly construed and not enforced unless the obligation be imposed in clear and unambiguous language which is sufficiently definite to guide the courts in its application.

Id. at 295, 269 S.E.2d at 183. The Court in Beech Mountain noted with approval the decisions of other jurisdictions which "stressed the necessity for some ascertainable standard contained in the covenant by which the court can objectively determine both that the amount of the assessment and the purpose for which it is levied fall within the contemplation of the covenant." Id. The Court adopted this view and held that in order for assessments to be imposed on the basis of restrictive covenants there must appear a "sufficient standard by which to measure the [property owners'] liability for assessments." Id. The Court also required that covenants must identify with particularity the property to be maintained and must provide some guidance to a reviewing court as to which facilities and properties the property owners' association or other similar body chooses to maintain. Id. at 295-96, 269 S.E.2d at 183-84, Snug Harbor Property Owners Association v. Curran, supra, 55 N.C.App. 199 at 204, 284 S.E.2d 752 at 755.

In Snug Harbor, this Court considered a fact situation very similar to that in Beech Mountain, but did so in the context of defendants-property owners' motion under Rule 12(b)(6), N.C. Rules Civil Procedure, to dismiss plaintiff-property owners' association's complaint for failure to state a claim for relief. In affirming the trial court's grant of that motion, Snug Harbor relied heavily on Beech Mountain in finding the restrictive covenants involved unenforceably vague.

The Courts in Beech Mountain and Snug Harbor concluded that the covenants in each case failed to meet the three-pronged requirement set forth in Beech Mountain and found them unenforceable. Nowhere in either opinion, however, does the Court require, as defendants apparently contend, that the restrictive covenants must provide the reviewing court with a standard by which it can objectively determine the amount of the assessment.

Considering the matter before us in light of the established requirements, we find that paragraph 8 of the Declaration of Restrictive Covenants is not unenforceably vague. We note first that paragraph 24(d), set forth above, requires that the restrictions in the Declaration be construed together. Bearing this in mind, any reading of the language of paragraph 8(c) would provide a standard against which to measure the property owner's liability. Particularly when read with those portions of the Declaration relating to appearance and maintenance, paragraph 8(c) is sufficiently definite in its terms that the purpose and amount of the annual and special assessments in question clearly "fall within the contemplation of the covenant."

Secondly, we find that the property to be maintained is described with particularity. Having reference to the Declaration of Restrictive Covenants recorded by the developer and its predecessors in title in the New Hanover County Registry, and a map of the entire island showing roads, lots, facilities, bridge, causeway, natural and man-made channels and peninsulas, we can perceive no construction of paragraph 8 of the Declaration of Restrictive Covenants that would support any conclusion other than that reached by the trial court. Further, other than simply asserting that the property to be maintained is not sufficiently described, defendants advance no argument to support them in this regard.

Lastly, we find that there is no question as to which properties and facilities the HOA seeks to maintain with the contested assessments. Contrary to the situation in Beech Mountain, defendants here were aware, by reference in the deed to maps and Restrictive Covenants, what properties and facilities were to be maintained and improved with the revenues from the assessments. There are no after-acquired properties or facilities other than those specified or referred to in the Declaration of Restrictive Covenants of the development maps for the maintenance or improvement of which the assessments were made. Consequently, we find the covenants sufficient to guide the trial court in its review of the determination made by plaintiff HOA.

Our careful review of the record on appeal and consideration of the arguments advanced by defendants in their brief fail to persuade us that there is any genuine issue of material fact. The trial court's judgment granting plaintiff's motion for summary judgment was therefore proper. In affirming the grant of plaintiff's summary judgment motion, we necessarily conclude that defendants' motion for summary judgment was properly denied.

The trial court's judgment granting plaintiff's motion for summary judgment and denying defendants' motion for summary judgment is therefore affirmed.

Affirmed.

JOHNSON and PHILLIPS, JJ., concur.