Higgins v. BUILDERS AND FINANCE INCORPORATED

200 S.E.2d 397 (1973) 20 N.C. App. 1

Robert E. HIGGINS and wife, Margaret G. Higgins
v.
BUILDERS AND FINANCE INCORPORATED.

No. 733SC759.

Court of Appeals of North Carolina.

November 28, 1973. Certiorari Denied January 9, 1974.

Lee & Hancock by C. E. Hancock, Jr., and Moses D. Lasitter, New Bern, for plaintiffs-appellees.

Dunn & Dunn by Raymond E. Dunn, New Bern, for defendant-appellant.

Certiorari Denied by Supreme Court January 9, 1974.

PARKER, Judge.

No reason or argument has been stated and no authority has been cited in appellant's brief in support of appellant's first four assignments of error. Accordingly, these will be taken as abandoned. Rule 28, Rules of Practice in the Court of Appeals.

At the close of the evidence the attorney for defendant moved under Rule 50 of the Rules of Civil Procedure for a "directed verdict dismissing the plaintiffs' case." Denial of this motion is the subject of appellant's fifth assignment of error. Directed verdicts are appropriate only in jury cases. Bryant v. Kelly, 279 N.C. 123, 181 S.E.2d 438. This case was tried without a jury. In nonjury civil cases the appropriate motion by which a defendant may test the sufficiency of the plaintiff's evidence to show a right to relief is a motion for involuntary dismissal under Rule 41(b). Though defendant's motion was incorrectly designated, we shall treat it as having been a motion for involuntary dismissal under Rule 41(b) and shall pass on the merits of the questions appellant seeks to raise by this appeal. Neff v. Coach Co., 16 N.C.App. 466, 192 S.E.2d 587; Mills v. Koscot Interplanetary, 13 N.C.App. 681, 187 S.E.2d 372.

G.S. 1A-1, Rule 52(a)(1) provides as follows:

"In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment."

The trial judge in the present case, after denying defendant's motion to dismiss, properly complied with the requirements of Rule 52(a)(1) by entering judgment in which the court found the facts specially. While upon an appeal from an interlocutory order granting or denying injunctive relief the appellate court is not bound by the findings of fact made by the trial court but may review the evidence and make its own findings of fact, Board of Elders v. Jones, 273 N.C. 174, 159 S.E.2d 545, the rule is otherwise when, as here, the appeal is from a judgment which is a final determination of the rights of the parties. In such a case the trial court's findings of fact are binding on appeal, if supported by the evidence. Coggins v. City of Asheville, 278 N.C. 428, 180 S.E.2d 149. "The mere fact that equitable (injunctive) relief is granted gives us no authority to modify findings determinative of issues of fact raised by the pleadings." Cauble v. Bell, 249 N.C. 722, 107 S.E.2d 557. In the present case, the judgment appealed from is a final determination of the rights of the parties. Therefore, in this case the trial court's findings of fact are conclusive on this appeal, just as would be the verdict of a jury in a case tried before judge and jury, if there be evidence to support them, and this is so even though the evidence might sustain findings to the contrary. Knutton v. Cofield, 273 N.C. 355, 160 S.E.2d 29. Accordingly, the initial question presented by this appeal is whether the evidence was sufficient to support the trial court's findings of fact. If so, these findings are binding on this appeal and the only question remaining is whether the facts found by the trial court are, in turn, sufficient to support its conclusions of law and the judgment entered.

There was ample evidence to support the trial court's findings of fact. Defendant's witness, Guion E. Lee, who was the principal stockholder and an officer of defendant corporation, testified: "I intended to build duplex houses when I started these in this case." This witness had been one of the original developers of the North Hills Subdivision and as such had signed the instrument dated 28 April 1967 by which the restrictive covenants applicable in this case had been imposed. He testified that "[t]he restrictions in this subdivision preclude the use of duplex or multifamily dwellings," but expressed the view that "these restrictions are out-moded." Indeed, appellant does not challange the trial court's finding, contained in Finding of Fact No. 7 in the judgment dated 19 April 1973, that "at the time of the commencement of each of said dwellings they were intended by the defendant to be built as duplex houses. . . ." Nor does appellant challenge the detailed findings contained in subparagraphs (a) through (j) in Finding of Fact No. 12 as to the exact manner in which the buildings have actually been completed. On this appeal appellant challenges only that portion of Finding of Fact No. 7 in which the court found that the buildings "were not constructed for use as single family residential dwellings," and that portion of Finding of Fact No. 12 in which the court found that the completed buildings "have not been modified so as to conform to the building conditions and restrictive covenants of North Hills." Appellant contends that cutting a 3-foot wide opening between the two portions of each duplex house and particularly the finishing of but one complete kitchen in each house so modified them that as a matter of law they must now be considered as conforming to the restrictive covenants. We do not agree. Appellant's contention simply ignores all of the remaining factual findings made by the trial court in Finding of Fact No. 12, all of which are fully supported by the evidence, and all of which tend to show that each structure which defendant has erected is in fact and in law, a structure "other than for use as a single family residential dwelling." Appellant's contention ignores as well the obvious fact that the two minimal changes made by it in the structures have not effectively changed them from what admittedly defendant originally intended them to be. The insertion of a door into the 3-foot opening and the installing of a range and a sink for which plumbing and wiring are already provided in the unfinished kitchen, are all that is required to restore these structures exactly to their original design. When all facts found by the trial court are considered together, they fully support the court's conclusion that the structures erected by defendant "have not as a matter of law been converted into single family residential dwellings to conform with the restrictive covenants of North Hills Subdivision."

Appellant's contention that the restrictive covenant with which we are here concerned is a "use" restriction, and that the most that plaintiffs are entitled to is an injunction prohibiting the occupancy or "use" of each house by more than one family, is equally unpersuasive. In clear language the restriction prohibits the erection, altering, placing or permitting to remain on any lot of any structure other than for use as a single family residential dwelling. Erecting on any lot or permitting to remain thereon any duplex house, even though it remain vacant and unoccupied and not "used" at all, even by one family, would be a violation of the covenant.

We also find without merit appellant's final contention, made in its brief, that the consent order entered by Judge Rouse on 14 July 1972 established "the law of the case" and that the "most Judge Tillery could do would be to spell out in exact terms what, if anything, is additionally needed to modify the existing structures into a single family residential dwelling in accordance with the consent judgment entered on July 14, 1972." Appellant's contention completely mistakes the effect of the consent judgment signed by Judge Rouse. That judgment did not abrogate the restrictive covenants applicable to defendant's lots nor did it render the court thereafter powerless to enforce them in this litigation. Rather, the consent judgment served merely to free defendant from the restraining order theretofore entered to the extent of permitting defendant, at its option, to commence construction upon the structures which it had begun to build on Lots 3 and 4 "to modify the existing structures into a single family residential dwelling upon each lot to conform with the restrictive covenants for North Hills Subdivision." The consent judgment neither freed defendant from the effect of the restrictive covenants nor in any way inhibited the court's power to enforce them when defendant persisted in their violation.

The record in this case indicates that each of the several Superior Court Judges who have been concerned with this litigation have exercised patience and care to give defendant every reasonable opportunity to comply with the restrictive covenants and to minimize any damage it might suffer as a result of its own initial deliberate attempt to violate them. The record also indicates that defendant failed to make any good faith effort to utilize the opportunities allowed it to bring itself into compliance with those restrictions. Indeed, the evidence in this case is indicative of a studied, deliberate and determined effort on the part of the defendant to persist in its original intention of violating the covenants. Defendant's own conduct led directly to the judgment of which it now complains, and defendant is solely responsible for such loss or expense as it may now incur by reason of being required to comply with that judgment. Defendant may not justly complain at the harshness of the judgment finally entered. Its own conduct made obvious that any less stringent measure would be ineffectual. The judgment appealed from is

Affirmed.

BROCK, C.J., and CAMPBELL, J., concur.