{ "id": 11095199, "name": "D. MICHAEL HYDE and wife, DINA M. HYDE, Plaintiffs v. CHESNEY GLEN HOMEOWNERS ASSOCIATION, INC., Defendant", "name_abbreviation": "Hyde v. Chesney Glen Homeowners Ass'n", "decision_date": "2000-05-02", "docket_number": "No. COA99-152", "first_page": "605", "last_page": "623", "citations": [ { "type": "official", "cite": "137 N.C. App. 605" } ], "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": "498 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551393, 551110, 551303, 551183, 551262 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0572-04", "/nc/347/0572-05", "/nc/347/0572-02", "/nc/347/0572-03", "/nc/347/0572-01" ] }, { "cite": "493 S.E.2d 308", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "309" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 743", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11800511 ], "year": 1997, "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0743-01" ] }, { "cite": "274 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "179" } ], "opinion_index": 0 }, { "cite": "302 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563796 ], "year": 1981, "pin_cites": [ { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0064-01" ] }, { "cite": "285 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568516, 8568556, 8568657, 8568690, 8568603 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0392-01", "/nc/304/0392-02", "/nc/304/0392-04", "/nc/304/0392-05", "/nc/304/0392-03" ] }, { "cite": "279 S.E.2d 858", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "865" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 700", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170715 ], "pin_cites": [ { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0700-01" ] }, { "cite": "375 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487200 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0080-01" ] }, { "cite": "367 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "405", "parenthetical": "if judgment is supported by findings of fact, it will be affirmed notwithstanding fact that contrary evidence may have been offered" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522180 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "43", "parenthetical": "if judgment is supported by findings of fact, it will be affirmed notwithstanding fact that contrary evidence may have been offered" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0040-01" ] }, { "cite": "253 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "495", "parenthetical": "\"[w]here exceptions are not taken to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal\"" }, { "page": "495" }, { "page": "495" }, { "page": "495" } ], "opinion_index": 0 }, { "cite": "40 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553383 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "768", "parenthetical": "\"[w]here exceptions are not taken to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal\"" }, { "page": "768" }, { "page": "768" }, { "page": "768" } ], "opinion_index": 0, "case_paths": [ "/nc-app/40/0767-01" ] }, { "cite": "514 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1999, "pin_cites": [ { "page": "525" }, { "page": "525" }, { "page": "525" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216460 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "85" }, { "page": "85" }, { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0084-01" ] }, { "cite": "378 S.E.2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2482087, 2482122, 2482350, 2485396, 2484925 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/324/0246-03", "/nc/324/0246-05", "/nc/324/0246-01", "/nc/324/0246-04", "/nc/324/0246-02" ] }, { "cite": "373 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "467" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526351 ], "year": 1988, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0059-01" ] }, { "cite": "218 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "479" }, { "parenthetical": "citation omitted" }, { "page": "479" } ], "opinion_index": 0 }, { "cite": "27 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551744 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "196" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/27/0191-01" ] }, { "cite": "463 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "opinion_index": 0 }, { "cite": "342 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796159 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/342/0159-01" ] }, { "cite": "486 S.E.2d 491", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1997, "opinion_index": 0 }, { "cite": "126 N.C. App. 437", "category": "reporters:state", "reporter": "N.C. App.", "weight": 6, "year": 1997, "opinion_index": 0 }, { "cite": "156 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "239", "parenthetical": "quoting 20 Am. Jur. 2d Covenants, Conditions and Restrictions \u00a7 187 (1965" } ], "opinion_index": 1 }, { "cite": "271 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563495 ], "year": 1967, "pin_cites": [ { "page": "268", "parenthetical": "quoting 20 Am. Jur. 2d Covenants, Conditions and Restrictions \u00a7 187 (1965" } ], "opinion_index": 1, "case_paths": [ "/nc/271/0264-01" ] }, { "cite": "367 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "page": "407" }, { "page": "407" } ], "opinion_index": 1 }, { "cite": "90 N.C. App. 40", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522180 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "48" }, { "page": "48" } ], "opinion_index": 1, "case_paths": [ "/nc-app/90/0040-01" ] }, { "cite": "218 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1975, "pin_cites": [ { "page": "478" }, { "page": "478-79" }, { "page": "478" } ], "opinion_index": 1 }, { "cite": "27 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551744 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "195" }, { "page": "195-96" }, { "page": "195" } ], "opinion_index": 1, "case_paths": [ "/nc-app/27/0191-01" ] }, { "cite": "463 S.E.2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "74", "parenthetical": "quoting Boiling Spring Lakes, 27 N.C. App. at 195-96, 218 S.E.2d at 478-79" }, { "page": "75" } ], "opinion_index": 1 }, { "cite": "342 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796159 ], "year": 1995, "pin_cites": [ { "page": "163", "parenthetical": "quoting Boiling Spring Lakes, 27 N.C. App. at 195-96, 218 S.E.2d at 478-79" } ], "opinion_index": 1, "case_paths": [ "/nc/342/0159-01" ] } ], "analysis": { "cardinality": 1211, "char_count": 41506, "ocr_confidence": 0.758, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7488618062288573 }, "sha256": "8c9602feeca560bb33fdfcf4c5415a3c57f67d5a457788ffd6708836a3ff2152", "simhash": "1:812af068666f045e", "word_count": 6459 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge EAGLES concurs.", "Judge HUNTER concurs in part and dissents in part in a separate opinion." ], "parties": [ "D. MICHAEL HYDE and wife, DINA M. HYDE, Plaintiffs v. CHESNEY GLEN HOMEOWNERS ASSOCIATION, INC., Defendant" ], "opinions": [ { "text": "JOHN, Judge.\nPlaintiffs D. Michael Hyde and Dina M. Hyde appeal the trial court\u2019s 15 September 1998 judgment in favor of defendant Chesney Glen Homeowners Association, as well as the court\u2019s 15 January 1999 grant of defendant\u2019s motion for attorney\u2019s fees and denial of plaintiffs\u2019 motions for new trial, see N.C.G.S. \u00a7 1A-1, Rule 59 (1999) and for relief from judgment, see N.C.G.S. \u00a7 1A-1, Rule 60 (1999). We affirm the rulings of the trial court.\nPlaintiffs are residents of Chesney Glen Subdivision, located in Wake County and governed by a \u201cDeclaration of Covenants, Conditions and Restrictions for Chesney Glen\u201d (the covenants) administered by defendant. On 25 April 1998, plaintiffs submitted to defendant\u2019s Architectural Control Committee (ACC) hand-drawn plans for an above-ground swimming pool and backyard fence (the application). Plaintiffs thereby sought approval for the project pursuant to that section of the covenants providing:\n[n]o building, sign, fence, ... or other structure or planting shall be constructed, erected or planted until the plans and specifications showing the nature, kind, shape, height, materials, floor plans, color scheme, and located (sic) with respect to topography and finished ground elevation shall have been submitted to and approved in writing by the [ACC]. The [ACC] shall have the right to refuse to approve any plans and specifications which are not suitable or desirable, in its sole discretion, for aesthetic or any other reasons, provided such approval is not unreasonably withheld.\n(emphasis added). The covenants also state that:\n[n]o exposed above-ground tanks except for approved recreational swimming pools will be permitted ....\n(emphasis added).\nPlaintiffs\u2019 application was denied by the ACC, although the grounds for its action are disputed by the parties. Cindy Hunter (Hunter), an employee of the property management company engaged by defendant, informed plaintiffs of the denial by letter dated 15 May 1995 (the Hunter letter).\nPlaintiffs thereupon filed the instant action 5 July 1995 seeking a declaratory judgment regarding interpretation of the covenants and an injunction restraining defendant from \u201cinterfering with [plaintiffs\u2019] plans to construct their pool.\u201d Following defendant\u2019s original answer, plaintiffs proceeded with construction of both the pool and fence. Defendant thereafter filed a supplemental answer and counterclaim requesting the court (1) to order removal of the pool and fence by plaintiffs; (2) to award costs as well as reasonable counsel fees pursuant to the covenants; and, (3) to assess \u201cfines for [plaintiffs\u2019] continuing violation\u201d of the covenants.\nThe case proceeded to trial 3 June 1996. At the close of plaintiffs\u2019 evidence, the trial court granted defendant\u2019s motion for directed ver-diet. The court further ordered plaintiffs to remove the pool and fence, to pay fines accruing until such removal was effected, and to reimburse defendant\u2019s \u201creasonable attorney fees.\u201d\nAlthough plaintiffs failed to file written notice of appeal to this Court, see N.C.R. App. p. 3(a), plaintiffs\u2019 subsequent petition for writ of certiorari was granted, see N.C.R. App. P. 21(a)(1), allowing the appeal to proceed. In an unpublished opinion, see Hyde v. Chesney Glen Homeowners Assn., 126 N.C. App. 437, 486 S.E.2d 491 (1997) [hereinafter Hyde 7], this Court reversed the judgment of the trial court.\nIt appears the initial trial court interpreted Raintree Homeowners Assn. v. Bleimann, 342 N.C. 159, 463 S.E.2d 72 (1995), as requiring \u201cevidence of arbitrariness or bad faith on the part of the defendant\u201d homeowners association in order to overturn its decision denying plaintiffs\u2019 application. Perceiving no such evidence, the court allowed defendant\u2019s directed verdict motion.\nOn appeal, this Court first observed defendant\u2019s directed verdict motion was improper in a non-jury trial. However, we treated the motion\nas having been a motion for involuntary dismissal under Rule 41(b) [N.C.G.S. \u00a7 1A-1, Rule 41(b) (1999)] in order to pass on the merits of plaintiffs\u2019 appeal.\nHyde I, 126 N.C. App. 437, 486 S.E.2d 491.\nThis Court then highlighted a significant factual difference between the covenants at issue in Raintree and those herein, i.e., the presence in the latter of a \u201cstandard by which the [ACC\u2019s] authority is judged.\u201d Id.\nThus, where there is no standard within the restrictive covenant itself, as was the case in Raintree, courts apply \u201cthe general rule that a restrictive covenant requiring approval of house plans is enforceable only if the exercise of the power in a particular case is reasonable and in good faith.\u201d [Boiling Spring Lakes v. Coastal Services Corp., 27 N.C. App. 191, 196, 218 S.E.2d 476, 479 (1975).] In this case [Hyde 7], the standard by which the [ACC\u2019s] authority is judged is within the restrictive covenant itself, i.e, whether or not the [ACC\u2019s] approval of plaintiffs\u2019 plans was \u201cunreasonably withheld.\u201d . . . Since the covenant in this case provided a standard, the trial court erred by failing to determine whether or not the [ACC] \u201cunreasonably withheld\u201d its approval.\nId. (citation omitted). Accordingly, Hyde I reversed the trial court and remanded the case for further proceedings.\nOn remand, plaintiffs were allowed to supplement their evidence so as to address the issue of unreasonableness and defendants proceeded with presentation of their case. The trial court entered judgment 11 September 1998, concluding as a matter of law that the ACC \u201cdid not unreasonably withhold approval of the [plaintiffs\u2019 application for approval of an above-ground pool and fence.\u201d Plaintiffs were ordered to remove the pool and fence and to pay fines totaling $6,950.00 for past violations of the covenants plus an additional $100.00 per week for any continuing violations.\nOn 24 September 1998, plaintiffs moved for new trial, for relief from judgment, and to stay proceedings to enforce the judgment. The latter motion was allowed 14 January 1999, and the remaining motions were denied 15 January 1999. Defendant\u2019s motion seeking counsel fees was granted 15 January 1999. Plaintiffs timely appealed both the 11 September 1998 judgment and the 15 January 1999 orders. Although plaintiffs assigned error to the award of counsel fees, this issue is not discussed in their appellate brief and the assignment of error relating thereto is therefore deemed abandoned. See N.C.R. App. P. 28(b)(5) (\u201c[assignments of error ... in support of which no reason or argument is stated . . . will be taken as abandoned\u201d).\nPlaintiffs first argue the trial court on remand erroneously permitted amendment of \u201cthe original pre-trial order to allow ... a previously undisclosed document\u201d to be entered into evidence. Plaintiffs\u2019 contention borders on the frivolous.\nAt the commencement of trial upon remand following Hyde I, the court heard from the parties regarding witnesses and evidence not specified in the original pre-trial order. Defendant sought to add \u201cone additional document,\u201d a worksheet prepared by the ACC delineating the committee\u2019s reasons for disapproval of plaintiffs\u2019 application (the worksheet), and plaintiffs objected generally. The trial court ruled that both plaintiffs and defendant might introduce \u201cadditional evidence on [the] issue of reasonableness,\u201d noting this Court had directed resolution of that issue in Hyde I.\nAlthough plaintiffs now challenge introduction of the worksheet into evidence, the record reflects that it was plaintiffs who offered the exhibit into evidence at trial. By offering no objection at trial, plaintiffs have failed to preserve this question for appellate review. See N.C.R. App. R. 10(b) (to preserve question for appellate review, \u201ca party must have presented to the trial court a timely . . . objection\u201d). Moreover, assuming arguendo proper preservation of this issue for appellate review, we note that\nadmission of evidence not delineated in the [original] pretrial order is within the sound discretion of the trial court.\nAlston v. Monk, 92 N.C. App. 59, 64, 373 S.E.2d 463, 467 (1988), disc. review denied, 324 N.C. 246, 378 S.E.2d 420 (1989). Given the unique procedural posture of the instant case, the trial court cannot be said to have abused its discretion by allowing each of the parties to present additional evidence and witnesses not contemplated in the original pre-trial order.\nPlaintiffs next contend\nthe trial court erred in finding as a conclusion of law that the [ACC] did not unreasonably withhold approval [of plaintiffs\u2019 application] as such conclusion is unsupported by the findings of fact.\nWe do not agree.\nIf the trial court\u2019s conclusions of law are supported by findings of fact. . . , and the conclusions of law support the order or judgment of the trial court, then the decision from which appeal was taken should be affirmed.\nIn re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999).\nIn the case sub judice, the following pertinent findings of fact, unchallenged by plaintiffs and therefore conclusive on appeal, see Ply-Marts, Inc. v. Phileman, 40 N.C. App. 767, 768, 253 S.E.2d 494, 495 (1979) (\u201c[w]here exceptions are not taken to the findings of fact, such findings are presumed to be supported by competent evidence and are binding on appeal\u201d), were rendered by the trial court:\n9. Mr. Scott Gannon was at [the time of plaintiffs\u2019 application] a member of [defendant\u2019s] Board of Directors and also served as Chairman of the [ACC]. Mr. Gannon was also the [plaintiffs\u2019 next-door neighbor. . . . Mr. Gannon recused himself from consideration of the [plaintiffs\u2019 [application], as he was their next-door neighbor. . . .\n10. Between April 25, 1995 and May 15,1995, the three remaining members of the [ACC] independently reviewed the [plaintiffs\u2019 application....\n11. The three members of the [ACC] cited various reasons for the disapproval of the [plaintiffs\u2019 application, including the reasons that a 24-foot pool was too large for the lot size and that the [p]laintiffs had not included enough information with their application for the [ACC] to make a fully-informed decision. Two members of the [ACC] specifically reported that they should see the actual pool plans or a photograph from the pool manufacturer showing the style of the pool. In addition, one member of the [ACC] felt that he needed to see landscaping plans for screening the pool before he could approve it, and another [ACC] member felt that the pool might be too close to the side lot line as it appeared on the [plaintiffs\u2019 application. The [ACC] also reported that they might consider the matter again based upon a proper and complete application.\n16. Based upon the testimony and documentary evidence presented by the [defendant (which was not presented at the first hearing of this case), the [c]ourt finds as a fact that the [ACC] based its decision to disapprove the [plaintiffs\u2019 application on the fact that the above-ground pool and fence requested did not meet the general scheme and plan of development for the Chesney Glen community....\nThe foregoing findings reflect that plaintiffs\u2019 next-door neighbor recused himself from the proceedings and the three remaining ACC members independently reviewed plaintiffs\u2019 application. Further, the general consensus among the latter was that more information was required before the application could be acted upon and that the plans as submitted failed to conform to the general plan and scheme of the subdivision. These findings amply support the trial court\u2019s conclusion that the ACC \u201cdid not unreasonably withhold approval of the [plaintiffs\u2019 application,\u201d and the court\u2019s ruling therefore must be affirmed. See Everette, 133 N.C. App. at 85, 514 S.E.2d at 525.\nNotwithstanding, plaintiffs insist certain actions of defendant and Hunter were unreasonable and that denial of plaintiffs\u2019 application must accordingly be characterized as unreasonable. Plaintiffs\u2019 contention misses the mark.\nPlaintiffs reference the Hunter letter, prepared at the direction of Tom Coleman (Coleman), acting chair of the ACC. The Hunter letter stated:\nThe [ACC] has reviewed your request submitted April 25, 1995 to install an above ground pool and fence. . ..\nThe [ACC] has denied your request based on the following: The [ACC] and the Board of Directors have established architectural guidelines for the subdivision which will be published to all homeowners in the near future. After careful consideration, the Board of Directors made the decision that above ground pools will not be allowed in Chesney Glen. . . .\nIn its judgment, the trial court found as a fact that:\n13. [Coleman] did not authorize [Hunter] to tell the [p]laintiffs that their application had been denied because the Association would not allow above-ground pools. . . .\n15. ... [Hunter] acted beyond the scope of her authority in citing those reasons for disapproval of the [plaintiff\u2019s application and... [Hunter\u2019s] letter does not correctly reflect the [ACC\u2019s] reasons for disapproval of the [p]laintiff\u2019s application.\nThe court\u2019s findings also recited the Board\u2019s attempted adoption of a policy prohibiting all above-ground pools which failed to garner the required two-thirds vote of association members needed to effectuate amendment of the covenants.\nPlaintiffs seize upon the foregoing findings, maintaining in their brief that:\nIt was unreasonable for [Hunter] to send a denial letter to [plaintiffs] which cited as the reason for denial of the application that above ground pools would no longer be allowed ....\nIt was unreasonable for the Board of Directors to attempt to prohibit above ground pools when such pools are specifically allowed under the covenants ....\nPlaintiffs\u2019 assertions to the contrary notwithstanding, the contents of the Hunter letter under the circumstances sub judice do not bear on whether \u201capproval [was] . . . unreasonably withheld\u201d by the ACC. The covenants contain no requirement that approval or disapproval be \u201creasonably communicated,\u201d but only that approval not be \u201cunreasonably withheld.\u201d In this context, we again note this Court\u2019s emphasis in Hyde I on deference to the specific provisions of the instant restrictive covenants. See Hyde I, 126 N.C. App. 437, 486 S.E.2d 491. As noted herein, the covenants accord to the ACC\nthe right to refuse to approve any plans and specifications which are not suitable or desirable, in its sole discretion, for aesthetic or any other reasons ....\n(emphasis added).\nFurther, the failed attempt of the Chesney Glen Homeowners Association Board of Directors (the Board) to ban above-ground pools is unrelated to the issue of reasonableness. The Board and the ACC comprise different entities. Indeed, the trial court\u2019s finding of fact 17, also uncontested by plaintiffs and therefore conclusive on appeal, Ply-Marts, 40 N.C. App. at 768, 253 S.E.2d at 495, stated:\nthe [ACC] deliberated and considered the [plaintiffs\u2019 application independent of any action by, and without any influence or interference of, the Board of Directors relative to prohibition of above-ground pools.\nPlaintiffs counter that this Court in Hyde I commented that the Hunter letter and the Board\u2019s attempt to ban above-ground pools comprised evidence \u201cthe [ACC] acted at least arbitrarily in denying plaintiffs\u2019 request.\u201d Hyde I, 126 N.C. App. 437, 486 S.E.2d 491. However, in Hyde I we reviewed the trial court\u2019s grant of defendant\u2019s Rule 41(b) motion for involuntary dismissal, see G.S. \u00a7 1A-1, Rule 41(b), and noted that a trial court \u201cshould defer judgment\u201d on such rulings \u201cuntil the close of all the evidence \u2018except in the clearest cases,\u2019 \u201d Hyde I, 126 N.C. App. 437, 486 S.E.2d 491 (quoting Phillips, 1970 Supplement to 1 McIntosh, North Carolina Practice and Procedure \u00a7 1375). The statement cited by plaintiffs simply identifies evidence which removed the instant case from the \u201cclearest cases\u201d category such that the trial court should have deferred judgment \u201cuntil the close of all the evidence.\u201d Id.\nFollowing remand, the trial court received \u201call the evidence,\u201d id., weighed that evidence and determined the credibility thereof, and thereafter rendered judgment. We note also that the worksheet listing the ACC\u2019s reasons for denying plaintiffs\u2019 application had not been introduced into evidence at the time of Hyde I and was thus not available either to the initial trial court or to this Court on appeal. Given the new evidence presented at the trial upon remand and the trial court\u2019s uncontested factual findings, we cannot say the court incorrectly concluded as a matter of law that defendant did not \u201cunreasonably with[hold]\u201d approval of plaintiffs\u2019 application. See Smith v. Butler Mtn. Estates Property Owners Assn., 90 N.C. App. 40, 43, 367 S.E.2d 401, 405 (1988) (if judgment is supported by findings of fact, it will be affirmed notwithstanding fact that contrary evidence may have been offered), aff'd, 324 N.C. 80, 375 S.E.2d 905 (1989).\nLastly, plaintiffs find fault with the trial court\u2019s treatment of the Hunter letter. Plaintiffs first maintain the trial court\u2019s finding of fact 15, set out above, was not supported by competent evidence in the record and in any event is actually a conclusion of law on the issue of Hunter\u2019s \u201cscope of authority.\u201d\nThe classification of finding of fact 15 has no bearing on the outcome of this case. Whether Hunter\u2019s inaccurate recitation of the reasons for denial of plaintiffs\u2019 application exceeded her authority is unrelated to whether the ACC \u201cunreasonably withheld\u201d approval of the application. Accordingly, any error of the trial court in categorizing finding of fact 15 is harmless. See Shepard, Inc. v. Kim, Inc., 52 N.C. App. 700, 711, 279 S.E.2d 858, 865 (judgment will not be disturbed if one finding is unsupported by the evidence or immaterial to the case' as long as other findings supported by competent evidence are sufficient to support the judgment), disc. review denied, 304 N.C. 392, 285 S.E.2d 831 (1981). Further, we note the trial court pointedly determined Hunter exceeded her authority only by \u201cciting those [incorrect] reasons for disapproval,\u201d not in writing the denial letter nor in informing plaintiffs their application had been denied.\nNonetheless, plaintiffs interject, the covenants provide that\n[i]n the event the [ACC] shall fail to specifically approve or disapprove the plans and specification^] submitted in final and complete form, within thirty (30) days after written request for final approval or disapproval such plans and specifications shall be deemed approved.\n(emphasis added). Therefore, plaintiffs continue,\n[i]f [Hunter] exceeded her authority ... then the denial letter was null and void, and as a result, no specific reasons for the denial were conveyed from the [ACC] to [plaintiffs]\nas required under plaintiffs\u2019 interpretation of the covenants. In short, plaintiffs assert that no specific reasons for denial were given within thirty days of their application and that their application was therefore \u201cdeemed approved.\u201d\nPlaintiffs\u2019 argument is untenable. Although the reasons assigned to denial of plaintiffs\u2019 application may have been inaccurate, the denial itself was \u201cspecifically\u201d communicated to plaintiffs. When courts interpret the language of restrictive covenants such as those at issue herein,\nthe covenant must be given effect according to the natural meaning of the words. . . .\nHobby & Son v. Family Homes, 302 N.C. 64, 71, 274 S.E.2d 174, 179 (1981).\nA dictionary is an appropriate place to gather the natural meaning of words.\nAgnoff Family Revocable Trust v. Landfall Assoc., 127 N.C. App. 743, 744, 493 S.E.2d 308, 309 (1997), disc. review denied, 347 N.C. 572, 498 S.E.2d 375 (1998).\n\u201cSpecifically\u201d is defined as \u201cwith exactness and precision ... in a definite manner,\u201d Webster\u2019s Third New International Dictionary 2187 (1966), and as \u201cexplicitly, particularly, definitely,\u201d Black\u2019s Law Dictionary 1398 (6th ed. 1990). The Hunter letter stated the ACC \u201chas denied your request,\u201d thus \u201cexplicitly\u201d and \u201cdefinitely\u201d conveying that plaintiffs\u2019 application had been disapproved. Nothing more was required under the covenants, which set the standards by which the ACC\u2019s conduct must be judged, see Hyde I, 126 N.C. App. 437, 486 S.E.2d 491 (actions of ACC must be judged by standards in the covenants), which provide that the ACC may \u201crefuse to approve\u201d any plan \u201cin its sole discretion\u201d based upon aesthetics \u201cor any other reason[].\u201d Plaintiffs\u2019 attempt to read into the covenants a requirement that the ACC provide \u201cspecific\u201d reasons for disapproval of an application is therefore unavailing.\nPrior to concluding, we address the assertion raised by the dissent that the majority decision herein would operate to allow an architectural review committee to give a property owner\nany reason it wished, no matter how ridiculous, or no reason at all for denying an application, so long as valid reasons existed that could be presented to a judge in a later court hearing.\nWe disagree.\nFirst, the instant decision applies only to the covenants at issue in the case sub judice. Decisions of architectural control committees governed by covenants containing no standard by which to judge that committee\u2019s authority must be reviewed under the standard promulgated in Boiling Spring Lakes, 27 N.C. App. at 196, 218 S.E.2d at 479, and we do not speculate as to whether \u201creasonable communication\u201d might be required thereunder. Thus, both Raintree, 342 N.C. 159, 463 S.E.2d 72, and Smith, 90 N.C. App. 40, 367 S.E.2d 401, cited by the dissent for the proposition that homeowners must be given valid reasons for denial of construction applications, were governed by a different standard than that at issue herein and are inapposite.\nIn the instant case, the covenants require only that (1) the ACC may not \u201cunreasonably with[hold]\u201d approval of an application; and, (2) that if an application is denied, such denial must be specific. The covenants contain no requirement that any reasons for denial be communicated to the homeowner.\nAccordingly, although plaintiffs may have received inaccurate reasons for denial, the denial itself was specifically communicated and the trial court\u2019s uncontested findings, see Ply-Marts, 40 N.C. App. at 768, 253 S.E.2d at 495, reflect the ACC possessed valid reasons for denial. Therefore, we are not confronted with the dissent\u2019s hypothetical circumstance wherein a homeowners\u2019 association has attempted to justify its decision post hoc at trial. We reiterate that the worksheet prepared by ACC members contemporaneously with denial of the application was introduced into evidence by plaintiffs themselves.\nAs noted by the dissent, it appears plaintiffs wrote defendants a letter of protest following denial by the ACC, which communication was not responded to in writing. Nonetheless, while the covenants contain no procedure to protest denial of an application, defendant presented the testimony of both Hunter and Coleman that plaintiffs had been invited to a Board meeting to discuss denial of their application, but failed to attend.\nIn sum, although plaintiffs\u2019 vigorous arguments have proved persuasive to the dissent, we decline to second guess the ruling of the trial court. After a full trial, hearing evidence at length from both sides, the court determined the ACC\ndid not unreasonably withhold [its] approval, . . . [and] acted deliberately, reasonably and in good faith in considering and ultimately disapproving the [plaintiffs\u2019 application . . .\n... [Further,] the [ACC\u2019s] disapproval of the [application] was neither arbitrary nor capricious.\nAs plaintiffs have not challenged the findings of fact upon which the trial court based the foregoing conclusions, see Ply-Marts, 40 N.C. App. at 768, 253 S.E.2d at 495, and as those conclusions of law are supported by the court\u2019s findings of fact, see Everette, 133 N.C. App. at 85, 514 S.E.2d at 525, we affirm the trial court\u2019s decision, id.\nAffirmed.\nChief Judge EAGLES concurs.\nJudge HUNTER concurs in part and dissents in part in a separate opinion.", "type": "majority", "author": "JOHN, Judge." }, { "text": "Judge Hunter\nconcurring in part and dissenting in part.\nI respectfully dissent from the majority opinion on the issue of whether the Architectural Control Committee (\u201cACC\u201d) unreasonably withheld approval of plaintiffs\u2019 application for construction of an above-ground swimming pool and backyard fence.\nThe record reveals that on 25 April 1995, plaintiffs submitted hand-drawn plans to the ACC for an above-ground swimming pool and backyard fence. Plaintiffs thereby sought approval for the project pursuant to the Chesney Glen Subdivision Declaration of Covenants, Conditions, and Restrictions (\u201cCovenants\u201d), which provide in pertinent part:\nNo building, sign, fence, ... or other structure or planting shall be constructed, erected or planted until the plans and specifications showing the nature, kind, shape, height, materials, floor plans, color scheme, and located (sic) with respect to topography and finished ground elevation shall have been submitted to and approved in writing by the [ACC], The [ACC] shall have the right to refuse to approve any plans and specifications which are not suitable or desirable, in its sole discretion for aesthetic or any other reasons, provided such approval is not unreasonably withheld.\n(Emphasis added.) The covenants also provide:\nNo exposed above-ground tanks except for approved recreational swimming pools will be permitted ....\nThis section of the covenants clearly indicates that above-ground pools, similar to the one plaintiffs sought approval for, are allowed in the Chesney Glen Subdivision. This is supported by the sixth finding of fact by the trial court, which provides:\n6. During the period in which the builder/developer was in control of the Association, the builder/developer approved an above-ground swimming pool for Mr. Joe Smith, a resident of Chesney Glen and a member of the Association. The builder/developer also approv\u00e9d another above-ground swimming pool and a hot tub for other lot owners within Chesney Glen during the time of the builder/developer\u2019s control of the Association.\nTherefore, it is obvious that above-ground pools existed in the Chesney Glen Subdivision at the time plaintiffs submitted their application.\nAfter receiving plaintiffs\u2019 application, the ACC did not request any additional information from the plaintiffs concerning their application. By letter dated 15 May 1995, plaintiffs were informed by Cindy Hunter (\u201cHunter\u201d), an employee of the property management company engaged by defendant, that their application had been denied. The record reveals that this letter was written at the direction of Tom Coleman (\u201cColeman\u201d), acting chair of the ACC, after Coleman and Hunter had a conversation about the denial and decided that the actual reasons for the denial did not need to be conveyed to the plaintiffs. The letter stated in pertinent part: Plaintiffs were given no other reasons for the denial of their application, and the denial letter did not address or comment on any of the characteristics or features of the pool the plaintiffs had proposed to build. On 25 May 1995, plaintiffs wrote a letter of protest in response to the denial letter, asserting that the Board did not have the authority to prohibit all above-ground pools. There is no evidence in the record that plaintiffs received a response to this letter. In fact, the record contains no evidence of any correspondence between plaintiffs and the ACC in regards to what additions or changes plaintiffs could make to their application to make it acceptable to the ACC.\nThe [ACC] has reviewed your request submitted April 25, 1995 to install an above ground pool and fence. . ..\nThe [ACC] has denied your request based on the following: The [ACC] and the Board of Directors have established architectural guidelines for the subdivision which will be published to all homeowners in the near future. After careful consideration, the Board of Directors made the decision that above ground pools will not be allowed in Chesney Glen. . . .\nOn 3 July 1995, plaintiffs filed an action for a declaratory judgment as to whether their application had. been unreasonably denied under the Covenants. During the pendency of this action, plaintiffs proceeded with construction of both the pool and the fence. Plaintiffs did so pursuant to that section of the Covenants which provides:\nIn the event the [ACC] shall fail to specifically approve or disapprove the plans and specifications submitted in final and complete form, within thirty (30) days after written request for final approval or disapproval such plans and specifications shall be deemed approved.\n(Emphasis added.)\nOn 17 October 1995, at the annual meeting of the Chesney Glen Homeowners\u2019 Association, a proposed amendment to the Covenants which would have prohibited all above-ground pools was considered, but failed to receive the required two-thirds approval of the membership. The ACC subsequently published to all Chesney Glen homeowners its \u201cRevised Architectural Control Guidelines,\u201d which were to become effective 1 March 1996. These guidelines include a section that sets forth specific design guidelines for above-ground pools, indicating that future above-ground pools would be allowed, completely contradicting the 15 May 1995 denial letter sent to the plaintiffs.\nThe North Carolina Supreme Court has addressed the rules of construction which are to be applied when interpreting restrictive covenants, and has stated:\n\u201cCovenants and agreements restricting the free use of property are strictly construed against limitations upon such use. . . . Doubt will be resolved in favor of the unrestricted use of property, so that where the language of a restrictive covenant is capable of two constructions, the one that limits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the free use of the land.[\u201d]\nLong v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 239 (1967) (quoting 20 Am. Jur. 2d Covenants, Conditions and Restrictions \u00a7 187 (1965). The construction against limitations upon the beneficial use of land must be reasonable and cannot defeat the plain and obvious purposes of a restriction. Boiling Spring Lakes v. Coastal Services Corp., 27 N.C. App. 191, 195, 218 S.E.2d 476, 478 (1975). This Court has held that the exercise of authority with respect to covenants requiring the submission of plans and prior consent to construction, even if vesting the approving authority with broad discretionary power, is valid and enforceable so long as the authority to consent is exercised reasonably and in good faith. Smith v. Butler Mtn. Estates Property Owners Assoc., 90 N.C. App. 40, 48, 367 S.E.2d 401, 407 (1988). With regard to the exercise-of authority given architectural review committees, the Supreme Court has stated: \u201c \u2018[A] restrictive covenant requiring approval of house plans is enforceable only if the exercise of the power in a particular case is reasonable and in good faith.\u2019 \u201d Raintree Homeowners Assn. v. Bleimann, 342 N.C. 159, 163, 463 S.E.2d 72, 74 (1995) (quoting Boiling Spring Lakes, 27 N.C. App. at 195-96, 218 S.E.2d at 478-79).\nIn Raintree, the defendant homeowners wanted to replace wood siding with vinyl siding. Pursuant to a restrictive covenant, the defendants applied to the Architectural Review Committee (\u201cARC\u201d) for approval of their plans. This restrictive covenant made the ARC the sole arbiter of such plans, with the authority to withhold approval for any reason, similar to the restrictive covenant at issue sub judice. Defendants attended an ARC meeting on the evening of 26 March 1990 and presented evidence in support of their application. The ARC denied defendants\u2019 application because it found that the use of vinyl siding was not harmonious with the general theme of the subdivision. The ARC informed defendants that their application for approval had been denied by letter dated 6 April 1990. Defendants replied with a letter requesting that the ARC reconsider their application. The ARC did so at its next meeting and unanimously reaffirmed its prior denial. Defendants attended another ARC meeting a month later and again presented evidence in support of their application and suggested a compromise by which their home would be deemed a \u201ctest case\u201d for vinyl siding. The ARC once again denied the application. The Supreme Court found the defendants had failed to produce any evidence that the ARC acted unreasonably or in bad faith \u2014 the ARC had considered defendants\u2019 application for vinyl siding on three separate occasions, despite the fact that it had previously found the material unacceptable, and the ARC had consistently denied other applications for vinyl siding. Id. at 165, 463 S.E.2d at 75.\nIn Smith, the plaintiffs submitted a set of plans for a proposed dwelling to the architectural review committee for approval. Plaintiffs\u2019 plans were rejected because they failed to meet the restrictive covenant\u2019s square footage requirement. Plaintiffs then submitted a second set of plans which were rejected by the architectural review committee based on the roofline and geodesic design of the house. The plaintiffs were sent a letter from the president of the property owners association indicating that the proposed house reflected a marked departure from the home-building styles in the area and that the plaintiffs might consider a design closer to those in existence. The plaintiffs were given a definite and legitimate reason why their application had been denied, as well as suggestions on what changes were needed for possible reconsideration and approval. Therefore, this Court held that the architectural review committee had acted reasonably in denying plaintiffs\u2019 application. Smith, 90 N.C. App. at 48, 367 S.E.2d at 407.\nIn both Raintree and Smith, the respective architectural review committees involved the landowners in the application process. Once the application was initially denied, the architectural review committees made concrete suggestions to the landowners about what was needed for approval. The committees also clearly communicated to the landowners legitimate reasons why their applications had been, denied. None of this occurred in the case sub judice. Here, plaintiffs\u2019 original application was denied for an invalid reason, the plaintiffs\u2019 letter protesting this decision was disregarded, and plaintiffs were given no specific reason why their application had been denied prior to proceeding with construction, aside from the Board\u2019s invalid attempt to prohibit all above-ground pools in the subdivision.\nThe majority opinion claims to find ample support for its conclusion in the following findings of fact by the trial court:\n11. The three members of the [ACC] cited various reasons for the disapproval of the Plaintiffs\u2019 application, including the reasons that a 24-foot pool was too large for the lot size and that the Plaintiffs had not included enough information with their application for the [ACC] to make a fully-informed decision. Two members of the [ACC] specifically reported that they should see the actual pool plans or a photograph from the pool manufacturer showing the style of the pool. In addition, one member of the [ACC] felt that he needed to see landscaping plans for screening the pool before he could approve it, and another [ACC] member felt that the pool might be too close to the side lot line as it appeared on the Plaintiffs\u2019 application. The [ACC] also reported that they might consider the matter again based upon a proper and complete application.\n16. Based upon the testimony and documentary evidence presented by the Defendant (which was not presented at the first hearing of this case), the Court finds as a fact that the [ACC] based its decision to disapprove the Plaintiffs\u2019 application on the fact that the above-ground pool and fence requested did not meet the general scheme and plan of development for the Chesney Glen community....\nI believe the majority\u2019s ruling would be correct on this issue if it was simply concluding that valid reasons existed for the ACC to deny plaintiffs\u2019 application. However, the majority is using these findings to support its conclusion that the ACC did not act unreasonably in withholding approval of plaintiffs\u2019 application. In my opinion, the record lacks any showing, and the trial court made no findings of fact, that these legitimate reasons for denial were ever communicated to the plaintiffs prior to the second hearing in front of the trial court on 4 March 1998. The majority states that: \u201cThe covenants contain no requirement that approval or disapproval be \u2018reasonably communicated,\u2019 but only that approval not be \u2018unreasonably withheld.\u2019 \u201d Following this line of reasoning, an architectural review committee could give a landowner any reason it wished, no matter how ridiculous, or no reason at all for denying an application, so long as valid reasons existed that could be presented to a judge in a later court hearing. I believe that the majority\u2019s construction of \u201cunreasonably withheld\u201d and \u201cspecifically approve or disapprove\u201d in the present case is not a strict construction against limitations on the beneficial use of plaintiffs\u2019 property as required by Boiling Spring Lakes, 27 N.C. App. at 195, 218 S.E.2d at 478. I believe a reasonable construction against limitations on the beneficial use of property is one which requires the ACC to give notice to the applicant of valid reasons why the application was denied. As in Rainwater and Smith, plaintiffs should have been given valid reasons for denial so that they could have worked with the ACC to remedy the problems with their application, if possible. Accordingly, I would reverse the judgment of the trial court on this issue.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge Hunter" } ], "attorneys": [ "Levine & Stewart, by Michael D. Levine, for plaintiffs-appellants.", "Jordan, Price, Wall, Gray, Jones & Carlton, by Henry W. Jones, Jr., and Hope Derby Carmichael, for defendant-appellee." ], "corrections": "", "head_matter": "D. MICHAEL HYDE and wife, DINA M. HYDE, Plaintiffs v. CHESNEY GLEN HOMEOWNERS ASSOCIATION, INC., Defendant\nNo. COA99-152\n(Filed 2 May 2000)\n1. Trial\u2014 pretrial order \u2014 admission of evidence not contained in\nThe trial court did not abuse its discretion in an action involving an above-ground pool and homeowner\u2019s covenants by permitting amendment of the pretrial order to allow into evidence a previously undisclosed document delineating the architectural committee\u2019s reasons for not approving plaintiffs\u2019 application. The record reflects that it was plaintiffs who offered the exhibit at trial and, by offering no objection at trial, plaintiffs failed to preserve the question for appellate review. Moreover, admission of evidence not delineated in the original pretrial order is in the discretion of the trial court.\n2. Deeds\u2014 restrictive covenants \u2014 above-ground pool \u2014 disapproval not unresonable\nThe trial court did not err by concluding that a subdivision architectural committee had not unreasonably withheld approval of plaintiffs\u2019 application for an above-ground pool where unchallenged findings reflect that plaintiffs\u2019 next-door neighbor recused himself from proceedings, the three remaining committee members independently reviewed plaintiffs\u2019 application, and the general consensus was that more information was required and that the plans as submitted failed to conform to the general plan and scheme of the subdivision. A letter from the property management company referring to a policy prohibiting above-ground pools, which failed to garner the required votes of association members, does not bear upon whether approval was unreasonably withheld because the covenants contain no requirement that approval or disapproval be reasonably communicated, only that approval not be unreasonably withheld, and the failed attempt to ban above-ground pools is unrelated to the issue of reasonableness.\n3. Deeds\u2014 restrictive covenants \u2014 above-ground pool \u2014 denial letter\nThe trial court did not err in an action arising from the denial of an above-ground pool application by a subdivision architectural committee in its treatment of the rejection letter. Whether the author\u2019s inaccurate recitation of the reasons for the denial exceeded her authority is unrelated to whether the architectural committee unreasonably withheld approval. Plaintiffs\u2019 contention that their application was deemed approved under the covenants because the letter was void and therefore no specific reasons for the denial were given within the required time period is untenable because the denial itself was specifically communicated to plaintiffs; nothing more was required under the covenants.\n4. Deeds\u2014 restrictive covenants \u2014 requirements for denial of application \u2014 specific to covenants at issue\nA decision that subdivision restrictive covenants required only that approval of an application not be unreasonably withheld, that a denial must be specific, and that no reasons for the denial were required, was based only on the covenants at issue.\nJudge Hunter concurring in part and dissenting in part.\nAppeal by plaintiffs from judgment filed 15 September 1998 and orders entered 15 January 1999 by Judge Michael R. Morgan in Wake County District Court. Originally heard in the Court of Appeals 25 October 1999. An opinion was filed by this Court 16 November 1999. Defendant\u2019s Petition for Rehearing, filed 20 December 1999, was granted 23 December 1999 and heard without additional briefs or oral argument. The present opinion supersedes the 16 November 1999 opinion.\nLevine & Stewart, by Michael D. Levine, for plaintiffs-appellants.\nJordan, Price, Wall, Gray, Jones & Carlton, by Henry W. Jones, Jr., and Hope Derby Carmichael, for defendant-appellee." }, "file_name": "0605-01", "first_page_order": 637, "last_page_order": 655 }