Buysse v. Jones
| Decision Date | 21 November 2017 |
| Docket Number | No. COA17-419,COA17-419 |
| Court | North Carolina Court of Appeals |
| Parties | Bob BUYSSE, Joan Guilkey and Mike Miles, Plaintiffs v. Adam and Susan JONES, Defendants. |
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Michael W. Mitchell and Andrew P. Atkins, Raleigh, and John Joseph Korzen, for defendant-appellants.
Manning Fulton & Skinner, P.A., Raleigh, by J. Whitfield Gibson and Robert S. Shields, Jr., for plaintiff-appellees.
Adam and Susan Jones ("Defendants") appeal from an order granting Bob Buysse, Joan Guilkey, and Mike Miles ("Plaintiffs") specific performance of the restrictive covenants of the Gimghoul Neighborhood, requiring Defendants to remove the portion of their front porch addition that protrudes into a purported forty-foot setback from Gimghoul Road and a permanent injunction. We reverse and remand.
A. The Restrictive Covenants
In 1923, The Junior Order of Gimghouls owned and endeavored to develop a tract of land into a residential neighborhood, later known as the Gimghoul Neighborhood. The land was subdivided into various lots, including Lot 7 at issue in this case, and a plat was recorded in Plat Book 1 Page 51 in the Orange County Registry in 1923. This plat includes the handwritten notation "building line is 40 feet from Gimghoul Road" and shows a drawn line indicating the setback. This plat does not specify width or a specific right-of-way of Gimghoul Road.
Restrictive covenants were included in all the original recorded deeds. One of the covenants included the following restriction:
That no residences or buildings of any kind erected on the lot shall be nearer any street than the building line designated as "Residence Building Line," this being 40 feet from the northern boundary of Gimghoul Road , nor shall any residence be nearer either side line of said lot than ten feet, provided where two or more lots are combined to make a larger lot no residence shall be nearer either side line of the larger lot than ten feet. This does not apply to steps having no roof. (Emphasis supplied).
This restriction was included in the original deed of Lot 7, conveying the lot from The Junior Order of Gimghouls to "S.A. Stoudemire and Irene S. Stoudemire, his wife" on 5 May 1926, and recorded at Book 84 Page 286 in the Orange County Registry.
In 1950, an unsuccessful attempt was made to modify the original covenants. One proposed change referenced the setback: "[t]hat no residence or building of any kind erected on any lot shall be nearer any street than the building line designated as ‘Residence Building Line’ on said plot, and in no case less than 40 feet from the front property line ...." These proposed modifications were never executed by the lot owners nor recorded in the Orange County Registry.
In 1983, the Gimghoul Homeowners Association ("HOA") retained an attorney to opine on the validity of the original covenants and the HOA's ability to amend or add restrictions. Several drafts of proposed changes were produced, and several meetings were held to discuss the alterations. The setback requirement was not the focus of the revisions and not discussed until the final draft.
When questioned concerning the purpose of the proposed change, one HOA member claimed the modification was an effort to "simplify and clarify the setback for each lot since it was not clear what was intended by the ‘northern boundary’ building line" described in the original covenant. No objections were made to the resulting modification, and the change above was reflected in the final draft, "[n]o residences or buildings of any kind shall be erected on a lot nearer any street than forty (40') feet ...." The term "street" was not defined in the 1984 Declaration.
The final draft of the 1984 Declaration was accepted by a majority of the lot owners and recorded in June of 1984. The 1984 Declaration stated the intention behind the changes was Not all property owners of the subdivided lots shown on the 1923 plat signed the 1984 Declaration, but Sterling
A. Stoudemire and Mary Arthur B. Stoudemire, owners of Lot 7, did.
B. Lot 7
The Junior Order of Gimghouls conveyed Lot 7 to "S.A. and Irene S. Stoudemire, his wife" on 5 May 1926. On 30 May 1961, Sterling A. Stoudemire and Mary Arthur B. Stoudemire, as wife, conveyed Lot 7 to John T. Manning, who, along with his wife Elizabeth T. Manning, conveyed Lot 7 back to Sterling A. and Mary Arthur B. Stoudemire on the same day, on back-to-back recorded deeds. This conveyance was apparently made to place Mary Arthur B. Stoudemire into the chain of title. These deeds were recorded in Book 182 on Page 66 and 67, respectively.
On 9 June 1995, Mary Arthur B. Stoudemire conveyed Lot 7 to James C. Cusack and Julia C. Shivers, who had requested a survey be prepared of Lot 7 on 2 June 1995 by Charles R. Billings, RLS. This survey is not recorded. James C. Cusack and Julia C. Shivers then conveyed Lot 7 to Mary Wright Harrison on 17 July 2000, using the identical description contained in their 1995 deed.
Defendants purchased Lot 7, with a single family structure located thereon, from Mary Wright Harrison on 29 December 2006. Defendants' deed referenced and incorporated therein the unrecorded 1995 survey, which indicated a forty-foot building setback being measured from the property line adjoining Gimghoul Road, which is shown on the survey as having a fifty-foot right-of-way. Defendants assert they had not previously seen a copy of the unrecorded survey prior to litigation, but do not contest its inclusion in the description in their deed.
On 13 November 2013, Defendants submitted plans for a porch addition to the Chapel Hill Planning Department for a Certificate of Appropriateness ("COA"). These plans were reviewed by the Historic District Commission on 12 December 2013. A revised COA application was submitted on 13 January 2014, indicating minor changes to the original plans.
On 27 February 2014, the Historic District Commission reviewed and approved Defendants' plans, and issued a COA. A zoning compliance permit was issued on 20 March 2014. A building permit was issued on 4 June 2014, and construction of the covered porch began.
Prior to Defendants beginning construction on their covered porch addition, the HOA asserted the Defendants were violating the forty-foot setback restriction. Despite repeated warnings of the purported setback violation, and several offers to assist with remedying the violation, Defendants completed construction of their addition. The covered porch extends to approximately thirty-three feet south of the Lot 7 property line, approximately forty-three feet from the edge of the pavement of Gimghoul Road, and approximately eighty-three feet from the "northern boundary of Gimghoul Road."
C. Procedural History
On 18 August 2014, Plaintiffs filed a complaint against Defendants, and sought specific performance of the restrictive covenant and a permanent injunction. Plaintiffs filed an amended complaint on 9 July 2015, adding other homeowners who would also be subject to the restriction as necessary parties.
Both Plaintiffs and Defendants filed motions for summary judgment, and both motions were denied on 20 November 2015. The trial court's order found genuine issues of material fact exist concerning the definition of the word "street" and an exception to the Marketable Title Act protected the restrictive covenants of Gimghoul Neighborhood. N.C. Gen. Stat. § 47B-3(13) (2015).
Both parties stipulated to a summary bench trial and submitted briefs. On 15 November 2016, the trial court issued judgment in favor of Plaintiffs, granted specific performance of the forty-foot setback restriction from the southern edge of the right-of-way of Gimghoul Road, and issued a permanent injunction requiring removal of the portion of the porch that encroaches within the forty-foot setback from the asserted Gimghoul Road right-of-way. Defendants filed notice of appeal on 12 December 2016.
The judgment entered on 15 November 2016 is a final judgment of a superior court from which an appeal of right may be taken to this Court. N.C. Gen. Stat. § 7A-27(b)(1) (2015).
Defendants argue the trial court erred in (1) concluding the exception in N.C. Gen. Stat. § 47B-3(13) of the Marketable Title Act preserved the validity of the setback restriction from extinction; (2) resolving the ambiguity of the term "street" in favor of Plaintiffs, as if the restrictive covenants were valid; and (3) failing to apply traditional rules of contract construction and considering inadmissible evidence.
In a non-jury trial, the standard of review is "whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts." Jackson v. Culbreth , 199 N.C. App. 531, 537, 681 S.E.2d 813, 817 (2009) (citation and quotation marks omitted). "The trial court's findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary." Curran v. Barefoot , 183 N.C. App. 331, 335, 645 S.E.2d 187, 190 (2007) (citation omitted). "The trial court's conclusions of law drawn from the findings of fact are reviewable de novo ." Id.
"Interpretation of the language of a restrictive covenant is a question of law reviewed de novo ". Erthal v. May , 223 N.C. App. 373, 378, 736 S.E.2d 514, 517 (2012). Restrictive covenants are a restraint on the free use of property and are strictly construed. J. T. Hobby & Son, Inc. v. Family Homes of Wake County, Inc. , 302 N.C. 64, 70, 274 S.E.2d 174, 179 (1981) (...
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