{ "id": 11242921, "name": "McGINNIS POINT OWNERS ASSOCIATION, INC., and the BOARD OF DIRECTORS OF McGINNIS POINT OWNERS ASSOCIATION, INC., Plaintiffs v. BARNEY G. JOYNER, and wife PHYLLIS M. JOYNER, Defendants", "name_abbreviation": "McGinnis Point Owners Ass'n v. Joyner", "decision_date": "1999-12-07", "docket_number": "No. COA98-1486", "first_page": "752", "last_page": "758", "citations": [ { "type": "official", "cite": "135 N.C. App. 752" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "318 S.E.2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "564" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520321 ], "year": 1984, "pin_cites": [ { "page": "74-75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0070-01" ] }, { "cite": "323 S.E. 2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "737-38" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 189", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526429 ], "year": 1984, "pin_cites": [ { "page": "191-92" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0189-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "814" } ], "opinion_index": 0 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "year": 1980, "pin_cites": [ { "page": "289" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "269 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "183" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550227 ], "year": 1980, "pin_cites": [ { "page": "295" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0286-01" ] }, { "cite": "460 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "119 N.C. App. 761", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917590 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/119/0761-01" ] }, { "cite": "307 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761705, 4764361, 4767598, 4764571, 4763934 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0320-03", "/nc/309/0320-04", "/nc/309/0320-05", "/nc/309/0320-01", "/nc/309/0320-02" ] }, { "cite": "303 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "341" }, { "page": "338" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522528 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "376" }, { "page": "371" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0367-01" ] }, { "cite": "198 S.E.2d 106", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "107" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 70", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550143 ], "year": 1973, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0070-01" ] }, { "cite": "190 S.E.2d 264", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "265" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 492", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551647 ], "year": 1972, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0492-01" ] } ], "analysis": { "cardinality": 658, "char_count": 15430, "ocr_confidence": 0.732, "pagerank": { "raw": 1.736748637968296e-07, "percentile": 0.706389059748271 }, "sha256": "3628150ec83ad2a8eb006d219cad35042ae5d9f8e60974679c745cfe6b0bc610", "simhash": "1:c628dea0140b2508", "word_count": 2377 }, "last_updated": "2023-07-14T18:51:33.981101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES and Judge MARTIN concur." ], "parties": [ "McGINNIS POINT OWNERS ASSOCIATION, INC., and the BOARD OF DIRECTORS OF McGINNIS POINT OWNERS ASSOCIATION, INC., Plaintiffs v. BARNEY G. JOYNER, and wife PHYLLIS M. JOYNER, Defendants" ], "opinions": [ { "text": "LEWIS, Judge.\nPlaintiffs, McGinnis Point Owners Association, Inc. (\u201cOwners\u2019 Association\u201d) and its Board of Directors, are charged with maintaining and administering the real properties of McGinnis Point, administering and enforcing applicable covenants and restrictions, and collecting and disbursing all relevant assessments. Two tracts of land approximately one mile apart comprise McGinnis Point. The first tract (\u201cMcGinnis Point Subdivision\u201d) is a ten-acre, ninety-unit development located on Bogue Sound. The second tract, (\u201cMcGinnis Point-Ocean\u201d) includes seven lots located on the Atlantic Ocean. McGinnis Point Subdivision is composed of single-family detached homes, a swimming pool, two tennis courts and a boat ramp. McGinnis Point-Ocean is composed of single-family detached homes and an ocean front beach access area with a parking lot, walkway and deck, called McGinnis Point Ocean Park (\u201cocean park\u201d).\nDefendants here are the record owners of Lot 4 in McGinnis Point-Ocean pursuant to a General Warranty Deed recorded 15 May 1992 in the Carteret County Registry. The deed in the conveyance states that it is made subject to that Declaration of Covenants, Restrictions and Easements for McGinnis Point-Ocean (\u201cOcean Declaration\u201d), recorded in the Carteret County Registry 8 June 1987. The Ocean Declaration references the Declaration of Covenants, Restrictions, and Easements for McGinnis Point Subdivision (\u201cSubdivision Declaration\u201d), which was recorded in the Carteret County Registry several years prior to the Ocean Declaration.\nThe portion of the Ocean Declaration which is pertinent to this appeal is set forth as follows:\nArticle 11. McGinnis Point Amenities\nThe owner of each lot within McGinnis Point-Ocean shall be deemed an associate member of the McGinnis Point Owner\u2019s Association, Inc. Each such associate member shall be entitled to use the McGinnis Point swimming pool, the McGinnis Point tennis courts, and the McGinnis Point ocean park, and no other McGinnis Point amenity or common area, except as may be required to allow ingress and egress to those amenities for which utilization is permitted herein. No such associate member shall be a voting member of the McGinnis Point Owner\u2019s Association, Inc. To assist in bearing the maintenance cost associated with the use of such facilities, each lot shall pay an annual assessment to the McGinnis Point Owner\u2019s Association, Inc., in an amount equal to 25% of the annual dues payable by the owner of a Currituck unit within McGinnis Point, as such dues level may be established from time to time, plus $100.00 per year. All such assessments shall be payable in advance. Failure to pay said dues shall be treated as failure to pay an assessment under the Declaration of Covenants for McGinnis Point recorded in Deed Book 491, Page 52, Carteret County Registry, and the Association shall have the right to enforce said assessment by all means allowed by law, or allowed by said covenants. The use of such master common properties shall be subject to the rules and regulations adopted by the Association from time to time, and applicable to all members and associate members of the Association.\nPlaintiffs assessed defendant-property owners pursuant to the Ocean Declaration for the years 1994, 1995, 1996, 1997 and 1998. Plaintiffs\u2019 complaint alleged defendant-property owners failed and refused to pay annual assessments from 1994 through 1998, requested payment of such assessments with twelve percent (12%) interest in accordance with the Owners\u2019 Association Bylaws as well as reasonable attorneys\u2019 fees. Defendants counterclaimed asking to recover damages from plaintiffs for improvements to the surrounding properties if it were determined that defendants were liable for assessments.\nOn 11 August 1998, the trial court granted plaintiffs\u2019 motion for summary judgment and denied defendants\u2019 motion for summary judgment. The court ordered defendants to pay the amounts owing under their respective assessments with interest, totaling $3508.87, and reasonable attorneys\u2019 fees in the amount of $5876.49. Defendants appeal from this Order.\nDefendants first argue the trial court acted improperly in granting plaintiffs\u2019 motion for summary judgment and denying defendants\u2019 motion for summary judgment under Rule 56. The test to be applied by the trial court in ruling on a motion for summary judgment was whether the pleadings, depositions, answers to interrogatories, admissions of file or affidavits established a genuine issue as to any material fact. N.C.R. Civ. P. 56(c); Tuberculosis Assoc. v. Tuberculosis Assoc., 15 N.C. App. 492, 494, 190 S.E.2d 264, 265 (1972). If no such issue exists, the trial court must then determine whether the moving party is entitled to judgment as a matter of law. N.C.R. Civ. P. 56(c); Van Poole v. Messer, 19 N.C. App. 70, 71, 198 S.E.2d 106, 107 (1973).\nDefendants assert that Article 11 of the Ocean Declaration is insufficient to require the McGinnis Point-Ocean property owners to pay assessments. Specifically, defendants contend that Article 11 does not satisfy the standards relevant to covenants imposing affirmative obligations that this Court applied in Homeowners\u2019 Association v. Parker and Homeowners\u2019 Association v. Laing, 62 N.C. App. 367, 303 S.E.2d 336, disc. review denied 309 N.C. 320, 307 S.E.2d 170 (1983) and clarified in Allen v. Sea Gate Assn., 119 N.C. App. 761, 460 S.E.2d 197 (1995). Further, defendants attempt to distinguish the covenant provisions which we held enforceable in Homeowners\u2019 from those in this case in order to establish that the terms of Article 11 fail for vagueness, rendering it unenforceable. We disagree.\nCovenants which impose affirmative obligations on property owners are strictly construed and unenforceable unless the obligations are executed in \u201c \u2018clear and unambiguous language\u2019 \u201d that is \u201c \u2018sufficiently definite\u2019 \u201d to guide the courts in their application. Allen, 119 N.C. at 764, 460 S.E.2d at 199 (quoting Beech Mountain Property Owner\u2019s Assoc. v. Seifart, 48 N.C. App. 286, 295, 269 S.E.2d 178, 183 (1980)). There must be \u201c \u2018some ascertainable standard\u2019 \u201d by which a court \u201c \u2018can objectively determine both that the amount of the assessment and the purpose for which it is levied fall within the contemplation of the covenant.\u2019 \u201d Id. In Allen, we clarified the inquiry relevant to the imposition of assessment obligations. There, we held that assessment provisions \u201c(1) must contain a \u2018sufficient standard by which to measure . . . liability for assessments,\u2019 ... (2) \u2018must identify with particularity the property to be maintained,\u2019 and (3) \u2018must provide guidance to a reviewing court as to which facilities and properties the . . . association . . . chooses to maintain.\u2019 \u201d Id. (quoting Homeowners\u2019 Association, 62 N.C. App. at 376, 303 S.E.2d at 341). Accordingly, we must determine whether the test in Allen as applied to the assessment provisions here supports the trial court\u2019s grant of summary judgment in favor of plaintiffs.\nWe first consider whether the Ocean Declaration sets forth a sufficient standard by which to measure defendant-property owners\u2019 liability for assessments. Article 11 of the Ocean Declaration requires the owner of each lot to pay \u201can amount equal to 25% of the annual dues payable by the owner of a Currituck unit within McGinnis Point, as such dues level may be established from time to time, plus $100.00 per year.\u201d The dues payable by the owner of a Currituck Unit are contained in the Subdivision Declaration, which Article 11 makes applicable by providing that a \u201c[f]ailure to pay said dues shall be treated as failure to pay an assessment under the [Subdivision Declaration].\u201d The assessment provisions in the Ocean Declaration sufficiently specify the standard by which to measure liability in light of that held sufficient in Homeowners\u2019 Association, to wit: \u201c[S]uch assessment or charge shall be in an amount to be fixed from year to year by the Company, which may establish different rates from year to year as it may deem necessary . . . 62 N.C. App. at 371, 303 S.E.2d at 338. We find that the Ocean Declaration establishes a sufficient standard for ascertaining defendant-property owners\u2019 liability for assessments.\nWe find that Article 11 describes the property to be maintained with particularity. Article 11 of the Ocean Declaration establishes each homeowner\u2019s right to use and obligation to bear the maintenance costs of the \u201cMcGinnis Point swimming pool, the McGinnis Point tennis courts, and the McGinnis Point ocean park.\u201d Because McGinnis Point only contains one of each of these facilities, we can discern no construction of Article 11 which would support any conclusion other than that of the trial court.\nWe also find that Article 11 of the Ocean Declaration provides sufficient guidance as to which properties and facilities are required to be maintained with assessment funds. Defendants were made aware by the terms of Article 11 that assessment funds would be used for maintenance costs associated with the use of the particularly described facilities. There are no after-acquired properties or facilities other than those specified in the Ocean Declaration requiring maintenance with assessment funds. Consequently, we find the covenants sufficient to guide the trial court in its determination.\nOur careful review of the record on appeal and consideration of the arguments advanced by defendants fail to persuade us that there is any genuine issue of material fact as to the application and enforceability of the assessment provisions against defendants. We therefore find the trial court properly entered summary judgment in favor of plaintiffs on the issue of assessment provisions. In affirming the grant of plaintiffs\u2019 summary judgment motion, we necessarily conclude that defendants\u2019 motion for summary judgment was properly denied.\nDefendants also argue that the trial court\u2019s award of reasonable attorneys\u2019 fees in excess of fifteen percent (15%) of the balance owing was improper under N.C. Gen. Stat. \u00a7 6-21.2. The Bylaws in this case, recorded as part of the Subdivision Declaration, allow for the collection of reasonable attorneys\u2019 fees incident to the collection of assessments. As a general rule, a party cannot recover attorneys\u2019 fees \u201cunless such a recovery is expressly authorized by statute.\u201d Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980). In accordance with this rule, N.C. Gen. Stat. \u00a7 6-21.2 authorizes an award of attorneys\u2019 fees pursuant to the provisions of a covenant when certain requirements have been fulfilled. Four Seasons Homeowners Assoc., Inc. v. Sellers, 72 N.C. App. 189, 191-92, 323 S.E. 2d 735, 737-38 (1984). Plaintiffs must have complied with section 6-21.2 to be entitled to an award of attorneys\u2019 fees.\nOur first consideration on the award of attorneys\u2019 fees is the explicit notice requirement in section 6-21.2(5). Specifically, plaintiffs must have provided written notice to defendants stating that defendants had five days from the mailing of such notice to pay the assessments without incurring attorneys\u2019 fees. Blanton v. Sisk, 70 N.C. App. 70, 74-75, 318 S.E.2d 560, 564 (1984). Defendants argue plaintiffs failed to fulfill this notice requirement, making the trial court\u2019s award of attorneys\u2019 fees improper. Nothing in the record indicates that plaintiffs did or did not provide defendants written notice in accord with section 6-21.2(5), nor is there a finding either way. Absent a finding of notice, the trial court was not authorized to award attorneys\u2019 fees under section 6-21.2. We therefore vacate the trial court\u2019s award of attorneys\u2019 fees and remand to the trial court for findings on the issue of notice.\nIf it is determined on remand that defendants were provided with requisite notice, the court must reconsider its award of reasonable attorneys\u2019 fees pursuant to the Bylaws. When reasonable attorneys\u2019 fees are authorized without specifying a certain percentage, the provision shall be construed to mean fifteen percent (15%) of the balance outstanding on the assessments. N.C. Gen. Stat. \u00a7 6-21.2(2). The trial court\u2019s $5876.49 award far exceeded this fifteen percent (15%) limitation. Accordingly, if the trial court on remand determines plaintiffs provided notice under section 6-21.2(5), the original award of attorneys\u2019 fees must be limited to fifteen percent (15%) of the outstanding assessment balance under section 6-21.2(2).\nWe also note that the North Carolina Planned Community Act, enacted in February 1999, allows a court to award reasonable attorneys\u2019 fees exceeding fifteen percent (15%) in a case such as this. N.C. Gen. Stat. \u00a7 47F-1-101 (1999). Section 47F-3-120 allows the prevailing party in an action to enforce a Declaration of Covenants to recover reasonable attorneys\u2019 fees if the Declaration of Covenants permits such recovery, unlike section 6-21.2(2), where a specific percent must be stated to override the fifteen percent (15%) limitation. But Chapter 47F only applies to planned communities created prior to February 1999 if their Declaration of Covenants is amended to indicate that this statute applies. N.C. Gen. Stat. \u00a7 47F-l-102(d) (1999). No such amendment was made here, so plaintiffs\u2019 only statutory basis for attorneys\u2019 fees is through section 6-21.2.\nThe order of the trial court granting summary judgment to plaintiffs is affirmed. The order awarding attorneys\u2019 fees to plaintiffs is vacated and remanded.\nAffirmed in part, vacated in part and remanded.\nChief Judge EAGLES and Judge MARTIN concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Kirkman, Whitford & Brady, P.A., by Carolyn B. Brady, for plaintiff-appellees.", "Temple & Petersen, by G. Henry Temple, Jr., for defendant-appellants." ], "corrections": "", "head_matter": "McGINNIS POINT OWNERS ASSOCIATION, INC., and the BOARD OF DIRECTORS OF McGINNIS POINT OWNERS ASSOCIATION, INC., Plaintiffs v. BARNEY G. JOYNER, and wife PHYLLIS M. JOYNER, Defendants\nNo. COA98-1486\n(Filed 7 December 1999)\n1. Deeds\u2014 assessment covenants \u2014 definiteness\nThe trial court did not err in granting summary judgment in favor of plaintiffs, who sought to recover annual assessments plus interest from defendant-property owners, because the Ocean Declaration covenant: (1) establishes a sufficient standard for ascertaining defendants\u2019 liability for assessments; (2) describes the property to be maintained with particularity; and (3) provides sufficient guidance as to which properties and facilities are required to be maintained with assessment funds.\n2. Deeds\u2014 assessment covenants \u2014 enforcement\u2014attorney fees \u2014 written notice \u2014 fifteen percent limitation\nIn a case where an Owners\u2019 Association sought to recover annual assessments plus interest from defendant-property owners pursuant to their Ocean Declaration covenants, the trial court\u2019s order awarding attorney fees to plaintiffs under N.C.G.S. \u00a7 6-21.2 is vacated and remanded for further findings on the issue of whether plaintiffs have provided written notice to defendants stating that defendants have five days from the mailing of such notice to pay the assessments without incurring attorney fees, and if notice was provided, the original award of attorney fees must be limited to fifteen percent of the outstanding assessment balance under N.C.G.S. \u00a7 6-21.2(2).\nAppeal by defendants from order entered 11 August 1998 by Judge James E. Ragan, III in Carteret County Superior Court. Heard in the Court of Appeals 14 September 1999.\nKirkman, Whitford & Brady, P.A., by Carolyn B. Brady, for plaintiff-appellees.\nTemple & Petersen, by G. Henry Temple, Jr., for defendant-appellants." }, "file_name": "0752-01", "first_page_order": 786, "last_page_order": 792 }