Fairfield Harbour Prop. Owners Ass'n Inc. v. Midsouth Golf Llc

• Court: North Carolina Court of Appeals
• Writing for the Court: BEASLEY, Judge.
• Citation: Fairfield Harbour Prop. Owners Ass'n Inc. v. Midsouth Golf Llc, 715 S.E.2d 273 (N.C. App. 2011)
• Decision Date: 16 August 2011
• Docket Number: No. COA10–384.,COA10–384.
• Parties: FAIRFIELD HARBOUR PROPERTY OWNERS ASSOCIATION, INC., Plaintiff,v.MIDSOUTH GOLF, LLC, Defendant.

715 S.E.2d 273

FAIRFIELD HARBOUR PROPERTY OWNERS ASSOCIATION, INC., Plaintiff,

v.MIDSOUTH GOLF, LLC, Defendant.

No. COA10–384.

Court of Appeals of North Carolina.

Aug. 16, 2011.

Appeal by Defendant from judgment entered 27 July 2009 by Judge John E. Nobles, Jr. in Craven County Superior Court. Heard in the Court of Appeals 26 October 2010.

Stubbs & Perdue, P.A., New Bern, by John W. King, Jr., for Plaintiff–Appellee.

Ward and Smith, P.A., New Bern, by Eric J. Remington, for Defendant–Appellant.

BEASLEY, Judge.

Where on 27 August 2009 Defendant entered notice of appeal of judgment on “all rulings made by [the trial court] against Defendant during the trial and any pre-trial proceedings,” we hold that notice of appeal was proper. Where the trial court denied Defendant's motion for directed verdict on the issues of radical change, failure of consideration, lack of reciprocal benefits and burden and bad faith, and damages, and denied Defendant's motion for requested jury instruction, granted Plaintiff's motion for directed verdict on the issue of frustration of purpose, denied Defendant's motion in limine to limit Plaintiff's evidence of damages, we affirm.

_________________________

Fairfield Harbour is a residential community located in Craven County, North Carolina. The community consists of residential homes, condominiums, and timeshares. Additionally, residents have access to two golf courses and a number of other amenities located within the community. All property owners within the community are members of Plaintiff, Fairfield Harbour Property Owners Association, Inc.

In 1975, the original developer of the Fairfield Harbour community recorded the “Supplemental Declaration of Restrictions –Treasure Lake of North Carolina, Inc.” (“Supplemental Declaration”). The Supplemental Declaration allowed the developer to charge an annual fee to all residents for the upkeep and maintenance of all recreational amenities. Later, in 1979, Fairfield Harbour, Inc., as the successor in interest to the original community developer, recorded the “Master Declaration of Fairfield Harbour” which allowed Fairfield Harbour Inc., and its successor to assess an amenity fee to all single family lots, town homes, condominiums, and timeshares sold thereafter. On 29 September 1999, Defendant, Midsouth Golf LLC, entered into a contract of sale for the purchase of many of the amenities in Fairfield Harbour including the two golf courses. Defendant purchased the amenities, subject to the 1993 covenants, in March 2000. The 1993 restrictive covenants required Defendant to operate and maintain two golf courses located within the community. Additionally, pursuant to the 1975 and 1979 restrictions, Defendant was also allowed to collect amenity fees for the maintenance of the golf courses.

Residents in the community were categorized as single family residential lots, town homes, condominiums and owners of timeshares. Though the timeshare property owners outnumbered any other category of residents in the community, they were required to pay the same amount in amenity fees as the other residents. In November 2004, Defendant filed suit against the timeshare property owners seeking to address this concern by assessing the timeshare property owners an amenity fee approximately five times more than that assessed to other owners. On 26 July 2006, the trial court determined that the amenity fee provision of the Master Declaration was unenforceable against the time-share property owners. Following the decision, some of the remaining residents of the Fairfield Harbour community stopped paying the amenity fees and began boycotting use of the amenities. Soon thereafter, Defendant closed the golf courses due to insufficient funds. On 22 April 2008, Plaintiff filed the present action generally arguing that Defendant's decision to close the Shoreline Golf Course was a breach of the Declaration of Covenants requiring Defendant to operate and maintain the golf course and its amenities.

On 27 June 2009, the trial court allowed Plaintiff's partial motion for summary judgment, concluding that there was no genuine issue of material fact as to Plaintiff's assertion that Defendant breached the covenants by closing the golf course. Additionally, the trial court dismissed all Defendant's defenses and counterclaims except the defense of frustration of purpose. The only issues remaining for trial were the amount of damages and the defense of frustration of purpose. Following the trial, the trial court granted Plaintiff's motion for a directed verdict on Defendant's frustration of purpose defense. Defendant appeals the trial court's order.

Motion to Dismiss

Preliminarily, we address a motion to dismiss filed by Plaintiff in which it seeks to dismiss a portion of Defendant's appeal. Plaintiff contends that because Defendant failed to identify the specific order from which it was appealing, Defendant failed to appropriately provide notice of appellate review. We disagree.

The rules of appellate procedure provide that:

The notice of appeal required to be filed and served by subsection (a) of this rule shall specify the party or parties taking the appeal; shall designate the judgment or order from which appeal is taken and the court to which appeal is taken; and shall be signed by counsel of record for the party or parties taking the appeal, or by any such party not represented by counsel of record.

N.C.R.App. P. 3(d). Generally, appellate courts only have jurisdiction to hear appeals from those orders specifically designated in the notice of appeal. Chee v. Estes, 117 N.C.App. 450, 452, 451 S.E.2d 349, 350 (1994). “Proper notice of appeal is a jurisdictional requirement that may not be waived.” Id.

In this case, Defendant failed to specifically identify the order from which it intended to appeal. Defendant assigns error to the trial court's order granting summary judgment in favor of Plaintiff filed on 30 June 2009. However, in its notice of appeal to this Court, Defendant merely designated that he was appealing from the judgment entered on 27 July 2009 and “all rulings made by [the trial court] against Defendant Mid–South during the trial and any pre-trial proceedings.” As discussed above, the trial court addressed numerous pre-trial and post-trial motions made by the parties. Defendant's appeal from “all rulings” and “pre-trial proceedings” is not a specific designation.

“Notwithstanding the jurisdictional requirements in Rule 3(d), our Court has recognized that even if an appellant omits a certain order from the notice of appeal, our Court may still obtain jurisdiction to review the order pursuant to N.C. Gen.Stat. § 1–278.” Yorke v. Novant Health, Inc., 192 N.C.App. 340, 348, 666 S.E.2d 127, 133 (2008). Appellate jurisdiction pursuant to N.C. Gen.Stat. § 1–278 is appropriate under the following circumstances: “ ‘(1) the appellant must have timely objected to the order; (2) the order must be interlocutory and not immediately appealable; and (3) the order must have involved the merits and necessarily affected the judgment.’ ” Id. (quoting Dixon v. Hill, 174 N.C.App. 252, 257, 620 S.E.2d 715, 718 (2005)).

Though Defendant in this case failed to appropriately file notice of appeal of the 30 June 2009 order, our Court has jurisdiction to review the action pursuant to N.C. Gen.Stat. § 1–278. Defendant timely objected to the trial court's summary judgment order. The North Carolina Rules of Civil Procedure provide that formal objections are not necessary with respect to pre-trial motions “and other orders of the court not directed to the admissibility of evidence[.]” N.C. Gen.Stat. § 1A–1, Rule 46(b) (2009). To preserve an exception to a pre-trial ruling for appellate review, it is “sufficient if a party, at the time the ruling or order is made or sought, makes known to the court the party's objection to the action of the court or makes known the action that the party desires the court to take and the party's grounds for its position.” Id. Here, Defendant submitted affidavits, arguments, and a memorandum of law in opposition to Plaintiff's motion for summary judgment. Accordingly, Defendant timely objected to the trial court's ruling and satisfied the first element of N.C. Gen.Stat. § 1–278.

The trial court's order granting Plaintiff's motion for partial summary judgment was interlocutory and was not immediately appealable. “An interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.” Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). “A grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.” Liggett Group v. Sunas, 113 N.C.App. 19, 23, 437 S.E.2d 674, 677 (1993). The trial court's order in this case disposed of many of Defendant's defenses; however, it left the issue of damages and the issue of frustration of purpose for trial. The trial court did not certify the order for immediate appellate review, nor did the trial court's order affect a substantial right held by Defendant.

Finally, the trial court's grant of partial summary judgment “involved the merits and affected the judgment.” “An order involves the merits and necessarily affects the judgment if it deprives the appellant of one of the appellant's substantive legal claims.” Yorke, 192 N.C.App. at 348, 666 S.E.2d at 133. In the current action, the trial court's order dismissed Defendant's counterclaim and several of its legal defenses. Because the trial court's grant of partial summary judgment eliminated one of Defendant's claims and several of its defenses, we hold that Defendant satisfied the third element of N.C. Gen.Stat. § 1–278.

I.

On 24 June 2008, Defendant moved to dismiss Plaintiff's action for lack of standing. The...