Fed. Point Yacht Club Ass'n, Inc. v. Moore , 233 N.C. App. 298 ( 2014 )

NO. COA13-681
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
FEDERAL POINT YACHT CLUB
ASSOCIATION, INC., a North
Carolina Corporation,
Plaintiff,
v. New Hanover County
No. 12 CVS 190
GREGORY MOORE,
Defendant.
Appeal by defendant from orders entered 18 September and 18
October 2012 by Judge W. Allen Cobb, Jr., in New Hanover County
Superior Court. Heard in the Court of Appeals 5 November 2013.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
L.L.P., by Steven M. Sartorio, and the Law Offices of G.
Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr.,
for plaintiff-appellee.
Chleborowicz Law Firm, PLLC, by Christopher A.
Chleborowicz, for defendant-appellant.
BRYANT, Judge.
An association has representational standing to bring a
lawsuit provided at least one of its members has suffered
imminent harm. Where a defendant fails to join necessary parties
to his action, a dismissal of his claim pursuant to N.C. R. Civ.
P. 12(b)(7) is appropriate. Where a restrictive covenant must
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be enforced, a permanent injunction is the proper remedy. A
trial court has discretion to award injunctive relief upon its
weighing and balancing of the parties’ equities. However, a
permanent injunction that prohibits contact between defendant
and others without establishing specific boundaries as to when,
where, and how the injunction applies is overly broad.
Plaintiff Federal Point Yacht Club Association (“FPYC”) is
a residential water-access community with appurtenant marina
facilities located in Carolina Beach. FPYC has eighteen
residential lots, a clubhouse, pool, and marina with 110 boat
slips. FPYC is governed by a recorded Declaration of Covenants,
which is enforced by a board comprised of community members.
Defendant Gregory Moore owns a residence and two boat slips
within FPYC.
On 12 August 2010, Moore filed a complaint against FPYC,
members of FPYC’s board, and FPYC’s dockmaster Randy Simon
(“Simon”). Moore’s complaint alleged that FPYC fined him
excessively, FPYC and Simon engaged in unfair and deceptive
trade practices, Simon abused legal process, and FPYC and its
board were negligent in hiring Simon as dockmaster. Moore
sought compensatory, treble, and punitive damages. FPYC filed a
motion to dismiss for failure to join all necessary parties
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pursuant to North Carolina Rules of Civil Procedure, Rule
12(b)(7). On 11 October 2010, this motion was granted by Judge
W. Allen Cobb, Jr., dismissing Moore’s complaint without
prejudice.
On 4 March 2011, FPYC’s board conducted a hearing regarding
Moore’s violations of FPYC’s rules. In a final decision issued
22 April 2011, FPYC’s board found that Moore had damaged water
faucets on one of FPYC’s docks; damaged the bathrooms in the
clubhouse; allowed his dog to run without a leash on FPYC
property; committed acts of harassment and intimidation against
FPYC board members, residents, and guests; impermissibly moved a
concrete parking bumper; and did not follow FPYC’s rules when
parking and storing a boat trailer. Moore was assessed a fine
of $496.80 which was paid.
On 5 November 2011, FPYC’s board conducted a second hearing
regarding Moore’s continued violation of FPYC rules. In the
second hearing, the FPYC board found that Moore continued to
violate association rules despite having agreed to comply with
the board’s decision of 22 April. Specifically, the FPYC board
found that Moore violated FPYC’s rules regarding threatening
and/or offensive conduct, signage, property damage, dockage,
parking, bike riding on docks, and keeping his dog on a leash.
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Moore was assessed total fines of $550.00 and his FPYC
membership rights were suspended for a period of sixty days.
On 17 January 2012, FPYC filed an action against Moore
(hereafter “defendant”) seeking a temporary restraining order, a
preliminary injunction and a permanent injunction restraining
him from continuing to violate FPYC’s rules.1 On 25 January,
defendant filed an answer and counterclaims for unfair and
deceptive trade practices; abuse of process; negligent hiring,
retention, and supervision of dockmaster; negligent infliction
of emotional distress; intentional infliction of emotional
distress; and punitive damages. On 26 March 2012, FPYC filed a
response to defendant’s counterclaims, including a motion to
dismiss for failure to join all necessary parties pursuant to
N.C. R. Civ. P. 12(b)(7), as well as for res judicata and
collateral estoppel. Defendant filed a motion to dismiss FPYC’s
claims pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7), and 12(c)
on 25 July 2012.
1
FPYC alleged that defendant violated FPYC’s rules by spraying
ketchup on the fence and home of the FPYC board president,
shining a spotlight into the home of the board president,
repeatedly using profane language towards members of the FPYC
board, and sending threatening messages to board members. Other
allegations of rule violations against defendant included
defendant riding his bike along the marina’s docks, defendant’s
dog running loose without a leash, and defendant defacing the
FPYC clubhouse bathrooms with feces.
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On 18 September 2012, Judge Cobb granted FPYC’s motion and
dismissed defendant’s counterclaim with prejudice based on
defendant’s failure to join necessary parties. That same day,
Judge Cobb entered a second order denying defendant’s motions to
dismiss FPYC’s complaint pursuant to N.C. R. Civ. P. 12(b)(1),
(6), (7), and 12(c), and for FPYC’s lack of standing to sue on
behalf of its members.
On 28 September 2012, defendant filed a new motion to
dismiss pursuant to N.C. R. Civ. P. 12(b)(6) on grounds that
FPYC already had an adequate remedy at law and thus, an
injunction was unnecessary. On 5 October 2012, FPYC filed
motions for summary judgment and for permanent injunction
against defendant. On 15 October 2012, Judge Cobb heard FPYC’s
motions for summary judgment and permanent injunction and
defendant’s second motion to dismiss. On 18 October 2012, Judge
Cobb issued an order granting FPYC’s motions for summary
judgment and permanent injunction and denying defendant’s motion
to dismiss. Defendant appeals.
________________________________
On appeal, defendant raises the following issues: whether
the trial court erred (I) in its first 18 September 2012 order
denying defendant’s motion to dismiss; (II) in its second 18
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September 2012 order dismissing defendant’s counterclaim; (III)
in its 18 October 2012 order denying defendant’s motion to
dismiss and granting FPYC’s motions for summary judgment and
permanent injunction; (IV) in its 18 October 2012 order granting
FPYC’s motions for summary judgment and permanent injunction
where the permanent injunction applied to undefined persons and
places; and (V) in its 18 October 2012 order granting FPYC’s
motion for summary judgment.
I.
Defendant argues the trial court erred in its 18 September
2012 order denying defendant’s motion to dismiss pursuant to
N.C. R. Civ. P. 12(b)(1), (b)(6) and (b)(7). We disagree.
A motion to dismiss under Rule 12(b)(1) for lack of
jurisdiction is reviewed by this Court de novo. Fuller v.
Easley, 145 N.C. App. 391, 395, 553 S.E.2d 43, 46 (2001). “For
a motion to dismiss based upon Rule 12(b)(6), the standard of
review is whether, construing the complaint liberally, the
allegations of the complaint, treated as true, are sufficient to
state a claim upon which relief may be granted under some legal
theory.” Strates Shows, Inc. v. Amusements of Am., Inc., 184
N.C. App. 455, 460, 646 S.E.2d 418, 423 (2007) (citation and
quotation omitted).
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In its first 18 September 2012 order, the trial court
observed that defendant filed the following motions:
1. A Motion to Dismiss [FPYC]’s Complaint
filed pursuant to Rules 12(b)(1) and
12(c) of the North Carolina Rules of
Civil Procedure because [FPYC] . . .
lacked standing to bring the claim(s) set
forth in its Complaint because (a) the
FPYC does not have standing to seek
permanent injunctions on behalf of an
individual, (b) even if the FPYC, as a
non-profit corporation, has standing to
bring an action as set forth and
described in its Complaint, each and
every member on whose behalf such relief
is sought must also have standing to seek
the same relief and that those individual
members had previously given up their
rights to seek the remedies set forth in
the Complaint, and (c) the relief sought
by [FPYC] in its Complaint has been, at
least in part, rendered moot.
2. A Motion to Dismiss [FPYC]’s Complaint
filed pursuant to Rule 12(b)(6) of the
North Carolina Rules of Civil Procedure
because the basis that [FPYC] (a) did not
affirmatively plead conditions precedent
to the filing of its Complaint and (b)
[FPYC] lacked standing to bring the
claims set forth in its Complaint.
3. A Motion to Dismiss [FPYC]’s Complaint
filed pursuant to Rule 12(b)(7) of the
North Carolina Rules of Civil Procedure
because [FPYC] failed to join necessary
and indispensable parties to the action.
The trial court then held “that Defendant’s Motions to Dismiss
the remaining claims set forth in [FPYC’s] Complaint filed
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pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7) and 12(c) are
hereby DENIED.” Defendant contends that the trial court
erred in denying his motions to dismiss under Rules 12(b)(1) and
(b)(6) because FPYC lacked standing to represent its members.
“A lack of standing may be challenged by motion to dismiss for
failure to state a claim upon which relief may be granted."
Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351
N.C. 331, 337, 525 S.E.2d 441, 445 (2000) (citation omitted).
"Standing refers to whether a party has a sufficient stake in an
otherwise justiciable controversy such that he or she may
properly seek adjudication of the matter." Am. Woodland Indus.
v. Tolson, 155 N.C. App. 624, 626—27, 574 S.E.2d 55, 57 (2002)
(citations omitted). To have standing, a party must be a "real
party in interest." Energy Investors Fund, 351 N.C. at 337, 525
S.E.2d at 445.
Defendant specifically argues that FPYC lacked standing
because fourteen members of FPYC dismissed their no-contact
claims against him with prejudice. An association like FPYC has
representational standing for its members if: “(a) its members
would otherwise have standing to sue in their own right; (b) the
interests it seeks to protect are germane to the organization's
purpose; and (c) neither the claim asserted nor the relief
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requested requires the participation of individual members in
the lawsuit.” River Birch Assocs. v. City of Raleigh, 326 N.C.
100, 130, 388 S.E.2d 538, 555 (1990) (citation omitted). “The
clear language of River Birch . . . does not require a threat of
immediate injury to each and every individual member of the
association in order for the association to have standing.”
State Emps. Ass’n of N.C. v. State, 154 N.C. App. 207, 219, 573
S.E.2d 525, 533 (2002) (Tyson, J., dissenting), overruled on
other grounds by State Emps. Ass’n of N.C. v. State, 357 N.C.
239, 580 S.E.2d 693 (2003).
Here, defendant contends that FPYC lacked representational
standing because by voluntarily dismissing their no-contact
orders with prejudice, fourteen of FPYC’s members forfeited
their individual standing because they no longer suffered from
an immediate harm caused by defendant. Defendant’s argument
lacks merit for, as previously discussed, FPYC had standing as
its own corporate entity to bring suit, regardless of the claims
brought by its fourteen individual members. See Warth v.
Seldin, 422 U.S. 490, 511 (1975) (“An association may have
standing in its own right to seek judicial relief from injury to
itself and to vindicate whatever rights and immunities the
association itself may enjoy."). Furthermore, our Supreme Court
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has held that not every member of an association must have
suffered an immediate harm in order for the association to have
standing to seek relief from such harm. See River Birch, 326
N.C. at 130, 388 S.E.2d at 555. Accordingly, the trial court
did not err in its first 18 September 2012 order denying
defendant’s motion to dismiss pursuant to N.C. R. Civ. P.
12(b)(1) and (b)(6) for FPYC’s lack of representational
standing.
Defendant further argues that FPYC lacked standing because
the dismissal with prejudice of fourteen no-contact orders by
FPYC members against him served as res judicata to bar any
claims by FPYC against him. On 13 January 2012, fourteen
individual members of FPYC, including FPYC’s board of directors
and their respective spouses as well as FPYC’s dockmaster and
his wife, filed no-contact orders for stalking or nonconsensual
sexual conduct against defendant. These no-contact complaints
stated that:
Defendant has repeatedly tormented,
terrorized, or terrified the Plaintiff, a
member of the Board of Directors (“Board”)
of [FPYC] or a spouse thereof, with the
intent of placing the Plaintiff in
reasonable fear for the Plaintiff’s safety
or the safety of the Plaintiff’s immediate
family or close personal associates by
engaging in hostile, threatening behavior
directed toward the Board, FPYC’s
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Dockmaster, and/or the spouses of the same.
By way of example and not limitation,
Defendant has (i) trespassed upon the land
of . . . the president of the Board, and
sprayed a blood-like substance all over the
fence, gate, and steps of his home (1/2/12);
(ii) used a weapon or other dangerous
instrument to slash the tires of the spouse
of FPYC’s Dockmaster (12/31/11); (iii)
threatened physical violence and/or bodily
injury against FPYC’s Dockmaster (10/18/11);
and, (iv) threatened to kill FPYC’s
Dockmaster (7/10/10). There are many more
examples. All of Defendant’s conduct,
regardless of to whom it was immediately
directed, was intended to place and did
place the Board’s members and their spouses
in reasonable fear for their safety and/or
the safety of their family and/or close
personal associates, as it was in apparent
retaliation for the Board’s censuring and
fining Defendant for his repeated violations
of the Rules and Regulations and
Declarations of FPYC. Defendant’s acts of
aggression are escalating, and, given
Defendant’s frequent apparent intoxication
and/or inability to control himself,
Plaintiff fears for the Plaintiff’s safety
and the safety of the Plaintiff’s immediate
family and close personal associates.
All fourteen no-contact orders were voluntarily dismissed with
prejudice on 23 July 2012.
Meanwhile, on 17 January 2012, five days after fourteen
FPYC members filed no-contact orders against defendant, FPYC
filed as a corporation a complaint against defendant alleging
that:
14. [Defendant], while a member of [FPYC],
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has repeatedly violated various provisions
of the Declaration, By-Laws, and/or Rules
and Regulations of [FPYC].
15. [Defendant] has been notified of his
potential violations of the Declaration, By-
Laws, and/or Rules and Regulations of [FPYC]
and has on two occasions in the past year
had hearings before the Board of Directors
of [FPYC] to review and consider those
potential violations.
16. Most recently, the Board of Directors of
[FPYC], in a decision dated 1 December 2011,
determined [defendant] had violated the
Declaration, By-Laws, and/or Rules and
Regulations of [FPYC] through, inter alia,
(a) his intimidating, threatening,
harassing, profanity-laden, and nuisance-
creating actions, and his disorderly conduct
directed at the Board of Directors and
[FPYC]’s Dockmaster, including but not
limited to his offensive, verbal assault on
[FPYC]’s Dockmaster which was captured on
videotape on 18 October 2011; (b) his
destruction of property by, on information
and belief, urinating, defecating, and/or
placing soiled toilet paper on signs hung by
[FPYC] in the men’s bathroom of the FPYC
clubhouse; and, (c) continuing to violate
[FPYC]’s Declaration, By-Laws, and/or Rules
and Regulations.
17. Pursuant to the Board of Directors’
hearing decision dated 1 December 2011
(“Hearing Decision”), [defendant] and his
wife were assessed fines, and [defendant’s]
membership rights in [FPYC] were suspended
for sixty (60) days beginning 4 December
2011 and ending 3 February 2012.
18. During the period of [defendant’s]
suspension of his membership rights in
[FPYC], he has no right to access or use the
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common areas of [FPYC].
19. Since 4 December 2011, [defendant] has
repeatedly violated the terms of the
suspension of his membership rights by,
inter alia, (a) purposefully accessing the
common areas by the docks and clubhouse of
[FPYC]; (b) on information and belief,
entering the parking lot of the clubhouse on
31 December 2011 and using a weapon or other
dangerous instrument to slash the tires of
the wife of [FPYC’s] Dockmaster (she and her
husband, the Dockmaster, both members of
[FPYC]), which event was captured on
videotape; and, (c) on 2 January 2012,
accessing the common areas by the docks and
smearing, placing, and applying a dark red
substance, which had the appearance of blood
but which turned out to be ketchup, on the
fencing, gate and steps of the home of
[FPYC’s] President, with, on information and
belief, the intent and purpose to further
intimidate, threaten, stalk, annoy, harass
and terrorize [FPYC’s] President, the
President’s spouse, all of the other members
of [FPYC’s] Board of Directors and their
respective spouses, and all other members of
[FPYC], which event, too, was captured on
videotape.
20. [Defendant’s] past behavior and present
violent outbursts are in retaliation against
the Board of Directors for their enforcement
of the Declaration, By-Laws, and/or Rules
and Regulations of [FPYC].
21. [FPYC] fears for the safety of its Board
of Directors, its Dockmaster, its other
members, and its property due to the
violent, unpredictable, and uncontrollable
behavior of [defendant].
Defendant contends that because the allegations in the no-
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contact orders differ from those in FPYC’s complaint only to the
extent that the no-contact orders were brought by individual
members of FPYC while FPYC’s complaint was brought by the
corporation itself, res judicata should act as a bar against
FPYC’s complaint.
“Under the doctrine of res judicata or ‘claim preclusion,’
a final judgment on the merits in one action precludes a second
suit based on the same cause of action between the same parties
or their privies.” Whitacre P’ship v. Biosignia, Inc., 358 N.C.
1, 15, 591 S.E.2d 870, 880 (2004) (citations omitted). “A
dismissal with prejudice is an adjudication on the merits and
has res judicata implications.” Caswell Realty Assocs., I, L.P.
v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610
(1998) (citations omitted).
FPYC’s complaint was brought by FPYC acting as “a
corporation organized and existing under the laws of the State
of North Carolina doing business in New Hanover County, North
Carolina.” As such, FPYC was not the same party or privy to the
fourteen individual members of FPYC who filed no-contact orders
against defendant. See Troy Lumber Co. v. Hunt, 251 N.C. 624,
627, 112 S.E.2d 132, 135 (1960) (holding that although a person
may be a shareholder or an officer of a corporation, that is not
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sufficient to establish privity for purposes of res judicata
between the shareholder or officer and the corporation).
Defendant further contends that FPYC is barred by res
judicata under this Court’s reasoning in Caswell Realty. In
Caswell Realty, the plaintiff filed an initial lawsuit which was
settled and dismissed with prejudice. The plaintiff then filed
two additional lawsuits based upon the same allegations as
alleged in the first lawsuit. The defendants moved for summary
judgment, which was granted by the trial court. The trial court
held that because the allegations and parties were the same in
all three claims raised by the plaintiff, the second and third
claims were barred by res judicata. Caswell Realty, 128 N.C.
App. 716, 496 S.E.2d 607.
Here, as already discussed, the no-contact orders did not
involve the same parties or privies as FPYC’s complaint. As
such, Caswell Realty is not applicable to the instant case. See
also Smoky Mountain Enters., Inc. v. Rose, 283 N.C. 373, 196
S.E.2d 189 (1973) (res judicata barred a new action by a
corporation’s president against the defendant where the
corporation’s president had brought a prior action against the
same defendant for the same relief); Thompson v. Lassiter, 246
N.C. 34, 97 S.E.2d 492 (1957) (holding that a person who is not
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a party to an action can be bound by the adjudication of a
litigated matter only when that person controls an action,
individually or in cooperation with others).
II.
Defendant next argues that the trial court erred in its
second 18 September 2012 order dismissing defendant’s
counterclaim with prejudice pursuant to N.C. R. Civ. P.
12(b)(7). We disagree.
North Carolina General Statutes, section 1A-1, Rule
12(b)(7), holds that “[e]very defense, in law or fact, to a
claim for relief in any pleading, whether a claim [or]
counterclaim . . . may at the option of the pleader be made by
motion [for] [f]ailure to join a necessary party.” N.C. Gen.
Stat. § 1A-1, Rule 12(b)(7) (2013).
When faced with a motion under Rule
12(b)(7), the court will decide if the
absent party should be joined as a party. If
it decides in the affirmative, the court
will order him brought into the action.
However, if the absentee cannot be joined,
the court must then determine, by balancing
the guiding factors set forth in Rule 19(b),
whether to proceed without him or to dismiss
the action. . . . A dismissal under Rule
12(b)(7) is not considered to be on
the merits and is without prejudice.
Crosrol Carding Dev., Inc. v. Gunter & Cooke, Inc., 12 N.C. App.
448, 453—54, 183 S.E.2d 834, 838 (1971) (citation omitted).
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On 12 August 2010, defendant filed a complaint against
FPYC. On 11 October 2010, the trial court issued an order
dismissing defendant’s complaint without prejudice pursuant to
N.C. R. Civ. P. 12(b)(7) for failure to join necessary parties.
Defendant did not appeal from this order.
On 25 January 2012, defendant filed a counterclaim against
FPYC; on 29 March 2012, FPYC moved to dismiss the counterclaim
pursuant to Rule 12(b)(7) for failure join necessary parties. A
hearing was held on 9 August 2012, and in an order dated 18
September 2012, the trial court granted FPYC’s motion to dismiss
dismissing defendant’s counterclaims with prejudice. In its
order, the trial court noted that:
5. The allegations of the Counterclaim filed
by [defendant] in this action are based upon
the same factual allegations that formed the
basis of the Complaint filed by [defendant]
in Civil Action Number 10 CVS 3796.2 In
addition, all of the claims that are now set
forth in [defendant’s] Counterclaim were
included as part of the claims set forth in
the Complaint [defendant] filed in Civil
Action Number 10 CVS 3796. The claims as set
forth in [defendant’s] Counterclaim are a
restatement of the same claims he asserted
against FPYC in his Complaint. In addition,
[defendant] makes the same request for
damages against the FPYC in his Counterclaim
that he made in his “original” Complaint.
2
Defendant’s complaint, filed 12 August 2010, was docketed under
10 CVS 3796. This complaint was dismissed by the trial court on
11 October 2010 without prejudice.
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The trial court concluded that:
BASED UPON THE FOREGOING, and as with the
Motion to Dismiss filed by the FPYC to the
Complaint filed by [defendant] in Civil
Action Number 10 CVS 3796, this Court
determines as a matter of law that Plaintiff
FPYC’s Motion to Dismiss [defendant’s]
Counterclaim for failure to join necessary
and indispensable parties should be and is
hereby ALLOWED.
Here, defendant’s first complaint was dismissed without
prejudice by the trial court under Rule 12(b)(7) for failure to
join necessary parties. Under Rule 41(b),
[f]or failure of the plaintiff to prosecute
or to comply with these rules or any order
of court, a defendant may move for dismissal
of an action or of any claim therein against
him. . . . Unless the court in its order
for dismissal otherwise specifies, a
dismissal under this section . . . operates
as an adjudication upon the merits. If the
court specifies that the dismissal of an
action commenced within the time prescribed
therefor, or any claim therein, is without
prejudice, it may also specify in its order
that a new action based on the same claim
may be commenced within one year or less
after such dismissal.
N.C. Gen. Stat. § 1A-1, Rule 41(b) (2013) (emphasis added).
In its 11 October 2010 order dismissing defendant’s
complaint, the trial court did not specify a period of time for
defendant to refile his complaint; as such, defendant had a
statutory period of one year from the date of that order to
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refile his complaint. When defendant failed to refile his
complaint or appeal the trial court’s order of 11 October 2010,
defendant’s counterclaim filed 25 January 2012 was properly
dismissed. See id.; see also id. §1A-1, Rule 41(c) (“The
provisions of this rule apply to the dismissal of any
counterclaim, crossclaim, or third-party claim.”).
III. & IV.
In his third and fourth arguments on appeal, defendant
contends that the trial court erred in its 18 October 2012 order
denying defendant’s motion to dismiss and granting FPYC’s
motions for summary judgment and permanent injunction where
there were adequate remedies at law and the injunction was
overly broad.
“A mandatory injunction is the proper remedy to enforce a
restrictive covenant [] and to restore the status quo.”
Wrightsville Winds Townhouses Homeowners' Ass’n. v. Miller, 100
N.C. App. 531, 536, 397 S.E.2d 345, 347 (1990) (citations
omitted). "Whether injunctive relief will be granted to
restrain the violation of such restrictions is a matter within
the sound discretion of the trial court . . . and the appellate
court will not interfere unless such discretion is manifestly
abused." Buie v. High Point Assocs. Ltd. P’ship, 119 N.C. App.
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155, 161, 458 S.E.2d 212, 216 (1995) (citation omitted).
North Carolina Rules of Civil Procedure, Rule 65 requires
that “[e]very order granting an injunction . . . shall be
specific in terms [and] shall describe in reasonable detail, and
not by reference to the complaint or other document, the act or
acts enjoined or restrained.” N.C. Gen. Stat. § 1A-1, Rule
65(d) (2013). This Court has characterized the specificity
inquiry to be conducted under Rule 65 as a determination of
“whether the party enjoined can know from the language of the
order itself, and without having to resort to other documents,
exactly what the court is ordering it to do.” Auto. Dealer
Res., Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 642,
190 S.E.2d 729, 734 (1972).
Defendant argues that the trial court erred in granting
FPYC’s motion for permanent injunction because FPYC had an
adequate remedy at law. Specifically, defendant contends that
because individual members of FPYC could seek no-contact orders
against him, FPYC had adequate remedies at law. As already
discussed in Issue I, FPYC had standing to pursue a claim
against defendant, independent of any claims FPYC’s members
could bring against defendant. Moreover, as a corporate entity
FPYC had representational standing to bring a claim against
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defendant on behalf of FPYC’s full membership. See Warth, 422
U.S. at 511; Troy Lumber, 251 N.C. at 627, 112 S.E.2d at 135.
Here, FPYC’s complaint indicated that defendant continued
to violate FPYC’s rules and regulations repeatedly, even after
defendant agreed to no-contact orders issued for fourteen
individual members of FPYC:
23. Based upon the allegations contained in
this Verified Complaint, [FPYC] is entitled
to an adjudication that [defendant] has
violated the Declaration, By-Laws, and/or
Rules and Regulations of the [FPYC]; has
violated [FPYC]’s suspension of his
membership rights; and, should be
permanently enjoined from further violations
of [FPYC]’s 1 December 2011 Hearing
Decision.
24. [FPYC] has demonstrated a likelihood of
success on the merits of this action against
[defendant] for the issuance of a temporary
restraining order and preliminary injunction
against [defendant] during the pendency of
this action from taking any action to
violate the Declaration, By-Laws, Rules and
Regulations, and decisions of the Board of
Directors and to have no contact with any of
[FPYC]’s Board members and their spouses
except through his legal counsel during the
pendency of this Court’s temporary,
preliminary and permanent injunction against
him and all such terms and conditions as the
Court may place on [defendant] to control
his menacing, offensive and abusive
behavior.
25. Further, based upon the allegations of
this Verified Complaint, [FPYC] has
demonstrated it will sustain irreparable
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damage, namely bodily injury or death of its
Board of Directors, Dockmaster, or other
members and/or property damage for which no
reasonable redress is afforded by law and to
which [FPYC] in equity and good conscience
should not be required to submit.
26. For the foregoing reasons, [FPYC] moves
the Court for a permanent injunction against
[defendant], restraining him from taking any
action to violate his suspension and other
provisions contained in [FPYC]’s 1 December
2011 Hearing Decision, including a permanent
order enjoining [defendant] from engaging in
any further menacing, offensive, threatening
and abusive conduct towards [FPYC]’s Board
members, their respective spouses, the
Dockmaster and his spouse, employees and
other representatives of [FPYC], and all
other members of [FPYC].
In its 15 October 2012 order, the trial court held that:
[b]y virtue of this Order, and for so long
as [defendant] remains and/or is a member in
[FPYC], [defendant] (including those acting
through [defendant]) shall be and is hereby
PERMANENTLY RESTRAINED AND ENJOINED from
engaging in the same or substantially
similar violative conduct, behavior and
actions as described and set forth in
[FPYC]'s Hearing Decisions of April and
December 2011 . . . .
The trial court then listed seventeen “prohibited actions” which
mirrored defendant’s alleged violations stated in FPYC’s
complaint. As the trial court made findings of fact in the 18
September and 15 October 2012 orders regarding defendant’s
behavior and conduct towards FPYC and its members and concluded
-23-
that defendant’s behavior and conduct was violative of FPYC’s
rules and regulations, the trial court acted within its sound
discretion in granting FPYC’s motion for summary judgment and a
permanent injunction against defendant.
Defendant also contends that the 18 October 2012 order is
overly broad because the language of the order’s “prohibitive
actions” extends to persons, locations, and dates that are
currently unknown to defendant. Specifically, defendant
contends that he “has absolutely no discernible standard as to
the persons, places and times to which the restraints apply.”
Defendant further argues that the language of the order is
overly broad because FPYC failed to present evidence that
defendant had issues with any members of FPYC other than the
FPYC board president and dockmaster.
Defendant’s only citations of authority for this argument
concern the proposed standard of review. Defendant urges this
Court to review this issue de novo, to “review and weigh the
evidence and find facts for ourselves.” We decline defendant’s
request and apply the standard of review we set out earlier in
this opinion: "[w]hether injunctive relief will be granted to
restrain the violation of such restrictions is a matter within
the sound discretion of the trial court . . . and the appellate
-24-
court will not interfere unless such discretion is manifestly
abused." Buie, 119 N.C. App. at 161, 458 S.E.2d at 216.
In its order granting a permanent injunction against
defendant, the trial court noted that “[defendant] shall be and
is hereby PERMANENTLY RESTRAINED AND ENJOINED from engaging in
the same or substantially similar violative conduct, behavior
and actions as described and set forth in [FPYC]’s Hearing
Decisions of April and December 2011, both of which are . . .
fully incorporated herein by reference.” FPYC’s motion to the
trial court specifically requested “a permanent injunction
against Defendant restraining and precluding him from engaging
in recurring and similar violations of [FPYC]’s rules,
regulations, restrictive covenants, bylaws and hearing
decisions.” The trial court’s order stated that “Defendant’s
Prohibited Actions shall include, without limitation, the
following:”
(1) screaming profanities at, towards, or in
the general direction of any [FPYC] member,
their family members or guests, [FPYC]’s
Board of Director members (“BOD”), and/or
[FPYC]’s employees and independent
contractors whether in public, in private,
in person, and/or through the telephone or
voicemail;
(2) trespassing and/or entering upon the
personal property or real property of [FPYC]
members, their family members or guests,
-25-
[FPYC]’s BOD, and/or [FPYC]’s employees and
independent contractors;
(3) having a violent outburst of any kind
whether verbal, physical, or insinuative
toward [FPYC] members, their family members
or guests, [FPYC]’s BOD, and/or [FPYC]’s
employees and independent contractors;
(4) “flipping off” or “giving the finger to”
[FPYC] members, their family members or
guests, [FPYC]’s BOD, and/or [FPYC]’s
employees and independent contractors;
(5) shining bright lights (including
flashlights and/or high-intensity
spotlights) into or onto the home or
property of [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s employees and independent
contractors;
(6) driving any vehicle toward, in the
direction of, or in such a way or in such
proximity to [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s employees and independent
contractors that it puts the person in fear
of his/her personal safety and/or blocks the
person’s right of way;
(7) “cussing out” any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors in public, through email,
through voicemail, through internet
postings, text message, or other form of
written or oral communication;
(8) calling any [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s employees and independent
contractors an “a******,” “dickhead,”
“pervert,” or other derogatory name in
-26-
public or in any email, text message,
voicemail, telephone call or other
interaction with any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors;
(9) threatening any kind of violence,
retribution, or “pay-back” toward [FPYC]
members, their family members or guests,
[FPYC]’s BOD, and/or [FPYC]’s employees and
independent contractors;
(10) taking any violent or destructive
action toward [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s employees and independent
contractors and/or toward any such person’s
personal or real property;
(11) destroying, vandalizing, defacing,
marking, or damaging (including by urinating
on, spraying ketchup on, slashing the tires
of, dropping electrical cords into the
water, etc.) the real or personal property
of [FPYC] and any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors;
(12) moving or removing any structure,
barriers, signs, equipment or safety device
found on or within the common areas or
roadways of [FPYC];
(13) docking or causing to be docked any
unauthorized boat or vessel in any slip or
dock at [FPYC] or within the common area of
[FPYC];
(14) “mooning,” exposing himself, grabbing
his crotch, sticking hoses between his legs,
or making any profane and/or obscene gesture
toward any [FPYC] members, their family
-27-
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s employees and independent
contractors, whether in person or on any
kind or type of video or recording device
located on a member’s property;
(15) depositing dock carts, garbage or
refuse, including but not limited to empty
beer cans and broken chairs or the like,
upon the property of any [FPYC] member or
their family members or guests, [FPYC]’s
BOD, and/or [FPYC]’s employees and
independent contractors;
(16) defacing, marking, vandalizing, or
damaging the common areas of [FPYC]; and,
(17) engaging in any type or kind of
intimidating, harassing, and terrorizing
conduct toward any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors.
Defendant contends that the language of the permanent
injunction is overly broad, arguing that “[u]nder the language
of the Order as written, the restraints could apply: to persons
whom [d]efendant does not even know . . . at locations which
[defendant] does not know apply . . . and at times/circumstances
that [defendant] does not know applies.” We agree. While the
specific types of behaviors which are prohibited are themselves
fairly clear, categories 1, 3—4, 7—10, 14, and 17 ban behavior
in vague or unspecified terms as to persons, times, and
geographic scope. Although some of the prohibited behavioral
-28-
categories are limited to the geographic boundaries of FPYC,
such as categories 12 (“moving or removing any structure,
barriers, signs, equipment or safety device found on or within
the common areas or roadways of [FPYC]”), 13 (“docking or
causing to be docked any unauthorized boat or vessel in any slip
or dock at [FPYC] or within the common area of [FPYC]”), and 16
(“defacing, marking, vandalizing, or damaging the common areas
of [FPYC]”), the majority of the categories lack any specified
boundaries, thus implying an unlimited applicability. See
Norfleet v. Baker, 131 N.C. 99, 102, 42 S.E. 544, 545 (1902)
(“Expressio unius est exclusio alterius. The presumption is
that, having expressed some, they have expressed all, the
conditions by which they intend to be bound under the
instrument.”).
This Court has previously upheld permanent injunctions
where the prohibited behavior is clearly limited in terms of
geographic scope. See Matthieu v. Miller, No. COA11-1287, 2012
N.C. App. LEXIS 886 (July 17, 2012) (finding that the trial
court did not abuse its discretion in upholding injunctive
relief where the injunction only affected one lot within a
subdivision); Schwartz v. Banbury Woods Homeowners Ass’n, Inc.,
196 N.C. App. 584, 675 S.E.2d 382 (2009) (the trial court did
-29-
not abuse its discretion in granting injunctive relief where the
injunction was specifically limited to prohibiting the
homeowners from permanently storing their RV camper on their
property). However, as this Court has not previously addressed
the appropriateness of injunctive relief which is seemingly
unlimited in scope, we find Webb v. Glenbrook Owners Ass’n,
Inc., 298 S.W.3d 374 (Tex. App. 2009), to be enlightening.
In Webb, the defendants sued the plaintiffs for breach of
their declaration of covenants and sought injunctive relief.
The Texas Court of Appeals found the defendants’ permanent
injunction against the plaintiffs to be vague and overly broad
as the injunction granted relief that went beyond the boundaries
of the defendants’ community. In finding that the trial court
abused its discretion in issuing the permanent injunction, the
Texas Court of Appeals noted that where the injunction’s
prohibited behaviors “requires reference to records outside the
injunction to determine all ‘members, wherever located[,]’” the
trial court clearly abused its discretion because “the
injunction grants relief beyond that supported by the evidence
by extending outside the physical boundaries of the Glenbrook
community.” Id. at 386.
We find that the instant matter is akin to that of Webb, as
-30-
here, FPYC has obtained a permanent injunction against defendant
that prohibits seventeen categories of behavior. Although some
of these categories are clearly limited in terms of scope, the
majority of these categories are not. Moreover, the injunction
grants relief that extends beyond the boundaries of the FPYC
community or immediately identifiable members of the FPYC
community. We agree with defendant that the language used in
categories 1, 3—4, 7—10, 14, and 17 is overly broad, as we find
nothing that clearly limits these prohibited behaviors to any
particular geographic area, durational period or immediately
identifiable persons even though the evidence presented
concerned only defendant’s violations of FPYC’s rules while
within the FPYC community. As such, we must hold that the trial
court abused its discretion in granting a permanent injunction
with unlimited scope. Accordingly, we remand to the trial court
solely to limit the scope of the injunction to actions directed
at certain, identified individuals anywhere, such as the FPYC
Board and community residents, or actions directed toward anyone
in certain places, such as within the physical boundaries of the
FPYC community.
Defendant further argues that the language of the order is
overly broad because FPYC failed to present evidence that
-31-
defendant had issues with any members of FPYC other than the
FPYC Board’s president and dockmaster. Defendant’s argument is
without merit, as his behavior and conduct was directed towards
and affected more members of FPYC than just FPYC’s president and
dockmaster. A review of the emails sent by defendant indicates
that defendant contacted numerous members of FPYC. Defendant
also verbally communicated, both in person and over the
telephone, with various FPYC members and their families. As
defendant’s actions and behaviors affected both individual
members of FPYC as well as the entire FPYC community, FPYC’s
motion for permanent injunction was meant to prevent defendant
from committing further harm against FPYC, its members and their
guests. See id. However, as discussed above, we must remand to
the trial court to have the order’s “prohibited actions” limited
to certain, identifiable individuals, and to the physical
boundaries of the FPYC community.
V.
Defendant’s final argument on appeal is that the trial
court erred in its 18 October 2012 order granting FPYC’s motion
for summary judgment where there were questions of fact, and
therefore, the trial court should not have granted a permanent
injunction. We disagree.
-32-
Summary judgment is proper when "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 [pursuant
to] N.C.G.S. § 1A-1, Rule 56(c) (20[13]).
The trial court must consider the evidence
in the light most favorable to the non-
moving party.
Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628
(2009) (citations omitted). This Court reviews a trial court's
order granting or denying summary judgment de novo. Builders
Mut. Ins. Co. v. N. Main Constr., Ltd., 361 N.C. 85, 88, 637
S.E.2d 528, 530 (2006) (citation omitted).
In its 18 October 2012 order, the trial court noted that it
reviewed all of the evidence presented by both parties,
including the evidence defendant now claims was not properly
considered, as well as the trial court’s own record of previous
litigation between defendant and FPYC. The trial court then
determined that defendant continued to violate FPYC’s rules and
regulations, even after FPYC met with defendant to discuss the
violations and after fourteen individual members of FPYC
obtained no-contact orders against defendant. Defendant does
not specifically contest these facts. He does not argue that
they did not occur, nor does he contest that these actions
-33-
violate the restrictive covenants. He only argues that his
conduct was justified by FPYC’s own unclean hands, an argument
we address below. Therefore, because the evidence showed there
were no genuine issues of fact that defendant’s behavior and
conduct had continued unabated against FPYC, the trial court did
not err in granting FPYC’s motion for summary judgment as FPYC
is entitled to judgment as a matter of law.
Defendant further argues that summary judgment was
inappropriate because FPYC acted with unclean hands towards him.
Specifically, defendant argues that FPYC deliberately sought to
drive him out of FPYC’s community by provoking and targeting him
with excessive fines and, therefore, FPYC cannot seek injunctive
relief.
When equitable relief is sought, courts
claim the power to grant, deny, limit, or
shape that relief as a matter of discretion.
This discretion is normally invoked by
considering an equitable defense, such as
unclean hands or laches, or by balancing
equities, hardships, and the interests of
the public and of third persons.
Roberts v. Madison Cnty. Realtors Ass’n, 344 N.C. 394, 399, 474
S.E.2d 783, 787 (1996) (citation omitted). Further,
[o]ne who seeks equity must do equity. . . .
The conduct of both parties must be weighed
in the balance of equity, and the party
claiming estoppel, no less than the party
sought to be estopped, must have conformed
-34-
to strict standards of equity with regard to
the matter at issue.
Creech v. Melnik, 347 N.C. 520, 529, 495 S.E.2d 907, 913 (1998)
(citations omitted).
The issuance of such an injunction depends
upon the equities of the parties and such
balancing is clearly within the province of
the trial court. Whether injunctive relief
will be granted to restrain the violation of
such restrictions is a matter within the
sound discretion of the trial court . . .
and the appellate court will not interfere
unless such discretion is manifestly abused.
Buie, 119 N.C. App. at 161, 458 S.E.2d at 216 (citations and
quotation omitted).
Although defendant presented evidence that FPYC’s Board
president and dockmaster acted inappropriately towards him,
defendant’s own behavior and conduct towards FPYC was equally
inappropriate.3 The trial court, in considering FPYC’s request
for injunctive relief, weighed and balanced the competing
equities of both parties and concluded that defendant’s conduct
was egregious enough to warrant the issuance of a permanent
3
Again we note FPYC’s allegations that defendant violated FPYC’s
rules and retaliated by spraying ketchup on the fence and home
of the FPYC board president, shining a spotlight into the home
of the board president, repeatedly using profane language
towards members of the FPYC board, and sending threatening
messages to board members. Other allegations of rule violations
against defendant included defendant riding his bike along the
marina’s docks, defendant’s dog running loose without a leash,
and defendant defacing the FPYC clubhouse bathrooms with feces.
-35-
injunction. As the trial court acted within its discretion in
balancing “the equities of the parties,” the trial court did not
err in granting a permanent injunction in favor of FPYC. We
affirm summary judgment but remand to the trial court to limit
the scope of the permanent injunction.
Affirmed in part; remanded in part.
Judges McGEE and STROUD concur.