Barfield v. Matos
| Decision Date | 16 August 2011 |
| Docket Number | No. COA10–1090.,COA10–1090. |
| Parties | Gene A. BARFIELD and wife, Judy S. Barfield; Steven Douglas Moss and wife, Luann Penninger Moss; Johnathan Edward Hardison and wife, Pamela B. Hardison; and William R. Cochran and wife, Vikki S. Cochran, Plaintiffs,v.Eliezer Marty MATOS, Defendant/Third–Party Plaintiff,v.Coy L. McManus and wife, Margaret C. McManus; The Revocable Trust of Coy L. McManus, as Amended; The Revocable Trust of Margaret C. McManus, as Amended; Scott Whittle and wife, Elisabeth R. Whittle; and Paul Gavrilyuk and Wife, Alena I. Gavrilyuk, Third–Party Defendants. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant/third-party plaintiff from order entered on or about 8 April 2010 by Judge Timothy Lee Patti in Superior Court, Mecklenburg County. Heard in the Court of Appeals 9 February 2011.
Bernhardt & Strawser, P.A., by Scott I. Perle and Griffin, Brunson & Wood, L.L.P., Charlotte, by N. Deane Brunson, for plaintiff appellees.
Johnston, Allison & Hord, P.A., Charlotte, by Patrick E. Kelly and Kathleen K. Lucchesi, for defendant/third-party plaintiff appellant.Ferguson, Scarbrough, Hayes, Hawkins & DeMay, P.A., Concord, by James E. Scarbrough, for third-party defendant appellees.
Third-party defendant appellees, the McManuses, argue that this case arises from “two unintentional errors” made “by four honest men: namely, McManus and his surveyor and Matos and his attorney.” As a result of these unintentional errors, defendant/third-party plaintiff Eliezer Marty Matos (“Matos”) purchased land which was subject to restrictive covenants without realizing that the land was restricted. This is the unavoidable result of the rule established by Reed v. Elmore, 246 N.C. 221, 98 S.E.2d 360 (1957) which has been criticized by courts and commentators alike, but our courts are bound by it as precedent. However, as Matos failed to appeal from the trial court's order addressing the disputed restrictions, we cannot address Matos' arguments as to Reed and the disputed restrictions. Accordingly, we affirm the trial court's orders granting a permanent injunction in favor of plaintiffs and summary judgment, dismissing Matos's claims against the McManuses.
This case arises from a rather complex series of real estate transactions related to the subdivision of land originally owned by Coy L. McManus and his wife, Margaret C. McManus (referred collectively as “the McManuses”).
The McManuses acquired a 34.523 acre tract of land (“the land”) in 1965; approximately 7 acres of the land is located in Cabarrus County and the rest is in Mecklenburg County. On 2 February 2001, the McManuses each conveyed his or her interest in the land to their revocable trusts, the Revocable Trust of Coy L. McManus, dated 2 October 2000 and the Revocable Trust of Margaret C. McManus, dated 2 October 2000 (“the McManus trusts”), but the deed to the McManus trusts was recorded only in Cabarrus County and not in Mecklenburg County. Thus, the record owner of the land in Mecklenburg County remained the McManuses individually; the McManus trusts were the record owners of the land in Cabarrus County.
In 2005, the McManuses decided to subdivide their land and sell some of it. Mr. McManus had a surveyor prepare a map (“the first map”) dividing the land into 9 tracts, numbered 1 through 9, although the first map was never recorded. In April 2005, Mr. McManus put up a “for sale” sign on the land, and Matos saw the sign and stopped to talk to Mr. McManus about purchasing Tracts 8 and 9. Matos told Mr. McManus that he wanted to use the tracts as a farm, and Mr. McManus told Matos that there were no restrictions on the land that would prevent farm use.
On 26 May 2005, a new map was prepared (“the second map”) and recorded with both the Cabarrus and Mecklenburg County Registers of Deeds. Although the second map also subdivided the same 34.523 acres, the second map divided the land into only seven tracts instead of nine. On the second map, the tracts which were designated as Tracts 8 and 9 on the first map were combined into one tract, now called Tract 7. Tracts 6 and 7 on the first map were combined into one tract, designated as Tract 6.
On 26 May 2005, the McManuses individually and Matos entered into a contract for the sale of Tract 7, with an area of 12.458 acres, as shown on the second map. It stated that Tract 7 was located entirely in Mecklenburg County. The contract also included a provision that there were no restrictions on the use of the property preventing “[r]esidential or farm use.”
Prior to the closing of the sale of Tract 7 to Matos, on 16 June 2005, the McManuses individually, but not the McManus trusts, conveyed Tract 2 as shown on the second map to Steven Moss and his wife Luann Moss. Tract 2 was located in both Mecklenburg and Cabarrus counties. The Moss deed was recorded in Cabarrus County on 16 June 2005 and in Mecklenburg County on 21 June 2005. The Moss deed included restrictive covenants applicable to Lots 1 through 7 of the second map, identified by reference to the plat recorded at map book 46, Page 92 in Cabarrus County and map book 43, page 685 in Mecklenburg County. The restrictive covenants state as follows, in pertinent part:
Tracts 1 through 7 shall be held, transferred, sold, conveyed and occupied subject to the covenants and restrictions set forth all of which shall run with the land and be binding on all persons owning any right, title or interest in any of said parcels, their heirs, successors and assigns, and shall inure to the benefit of, and be enforceable by, each parcel owner.
The covenants generally include the following restrictions: (1) all homes constructed on the property must be “stick built[;]” (2) dwellings, outbuildings, and “any accessory feature to the dwelling or any other structure, including fencing and pools[,]” must be approved in advance by “the then owners of tracts 1 and 2 together with Mr. or Mrs. Coy L. McManus or the assignee of Mr. or Mrs. McManus[;]” (3) only one residence can be constructed on each tract, with at least 3000 square feet of heated floor space; (4) exterior finishes shall be “brick veneer, stone, cedar shakes, cement siding, Hardie plank or other approved pre-finished sidings;” (5) “flared end concrete pipe” must be used with gravel driveway before a house is built; (6) no chain link fences are permitted and other approved fencing shall not be located closer to the front of the house than the rear exterior wall; (7) “[i]llegal, noxious, and/or harmful” activities are prohibited; and (8) the covenants may be amended by a majority vote of tract owners, but any amendment must be approved by either Mr. or Mrs. McManus “for so long as they shall own property on Ben Black Road, McManus Road, or Belt Road.”
On 14 July 2005, the McManuses individually, but not the McManus trusts, conveyed Tract 7 to Matos by a general warranty deed prepared by Matos' attorney, William Hamel. Mr. Hamel performed the title search in Mecklenburg County but failed to discover the restrictive covenants contained in the Moss deed. In his deposition, Mr. Hamel admitted that he should have found these restrictions but the person doing the title search failed to read or obtain a copy of the entire Moss deed. No restrictive covenants are specifically mentioned in the Matos deed, although the deed did state, in pertinent part, as follows:
Title to the property hereinabove described is subject to the following exceptions:
The lien of all valid and enforceable easements, rights-of-way, restrictions, covenants, conditions, and restrictions of record; except, however, this instrument does not reimpose any of the same.
The Matos deed was also executed by Matos as grantee.
On 16 November 2005, the McManuses individually and as trustees of the McManus trusts conveyed Tract 1 to Gene and Judy Barfield. Tract 1 is located in both Cabarrus and Mecklenburg counties, so this deed was recorded in both counties. The deed includes the same restrictive covenants as the Moss deed. On 16 November 2005, the McManuses conveyed Tract 3 to Johnathan and Pamela Hardison. Tract 3 is located in both Cabarrus and Mecklenburg counties, so this deed was recorded in both counties. This deed includes the same restrictive covenants as the Moss deed. On 5 December 2005, the McManuses deeded Tract 5 to William and Vikki Cochran. Tract 5 is entirely in Mecklenburg County, and the deed was recorded in Mecklenburg County only. This deed includes the same restrictive covenants as the Moss deed. On 2 February 2006, the McManuses deeded Tract 4 to James and Elisabeth Whittle. As Tract 4 is in both counties, the deed was recorded in both counties, and this deed also includes the same restrictive covenants as the Moss deed. On 13 June 2007 the McManuses conveyed Tract 6 to Pavil and Alena Gavrilyuk. As this tract is entirely in Mecklenburg County, the deed was recorded in Mecklenburg County only and it includes the same restrictive covenants as the Moss deed. Thus, the deeds for tracts one, three, four, five, and six included the same restrictive covenants as the Moss deed.
On 27 October 2005, a revised survey of the entire subdivision was recorded in both Mecklenburg County, at map book 47, page 101 and Cabarrus County, at map book 44, page 626 (“the third map”). The third map established new boundaries for Tracts 1 and 7, carving out a 1.447 acre portion of Tract 1 as shown on the second map and adding this portion to the land Matos had already purchased, Tract 7. The enlarged and newly constituted Tract 7 is located in both Cabarrus and Mecklenburg counties. On 24 August 2006, the McManuses individually and the McManus trusts conveyed the 1.447 acre tract as shown on the third map to Matos by a...
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