{ "id": 8917319, "name": "BEAU RIVAGE HOMEOWNERS ASSOCIATION, Plaintiff v. BILLY EARL, L.L.C. and CAROLINA GREEN ESTATES, L.L.C., Defendants", "name_abbreviation": "Beau Rivage Homeowners Ass'n v. Billy Earl, L.L.C.", "decision_date": "2004-03-16", "docket_number": "No. COA03-307", "first_page": "325", "last_page": "329", "citations": [ { "type": "official", "cite": "163 N.C. App. 325" } ], "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": "572 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "154 N.C. App. 508", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11143772 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/134/0217-01" ] }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "840" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "pin_cites": [ { "page": "670" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] }, { "cite": "550 S.E.2d 530", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "535" }, { "page": "535" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 9190744 ], "year": 2003, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/nc-app/156/0384-01" ] } ], "analysis": { "cardinality": 580, "char_count": 11521, "ocr_confidence": 0.758, "pagerank": { "raw": 5.3831170342230926e-08, "percentile": 0.3372046015037942 }, "sha256": "d7c35e1aaa82b8d65895d7ef06b35cd02b8b190ed0528f52a62aa58b19ed2c0e", "simhash": "1:256fc3ed056d4024", "word_count": 1839 }, "last_updated": "2023-07-14T15:27:37.331987+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and McCULLOUGH concur." ], "parties": [ "BEAU RIVAGE HOMEOWNERS ASSOCIATION, Plaintiff v. BILLY EARL, L.L.C. and CAROLINA GREEN ESTATES, L.L.C., Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nThe Beau Rivage Homeowners Association (\u201cplaintiff\u2019) appeals the order of the trial court denying its Motion to Amend Complaint and Add Additional Parties and granting the motion to dismiss of Billy Earl, L.L.C., and Carolina Green Estates, L.L.C., (\u201cdefendants\u201d). For the reasons addressed herein, we affirm the order of the trial court.\nThe pertinent facts to the instant appeal are as follows: Plaintiff is the homeowners association of what it describes as \u201ca private, upscale residential community\u201d in New Hanover County, North Carolina. On 13 November 2001, Beau Rivage Plantation, Inc. conveyed to defendants approximately 2 acres of land. Defendants are not members of the homeowners association.\nFifteen years before Beau Rivage Plantation, Inc. conveyed said property to defendants, a preliminary site plan of Phase I, Beau Rivage Plantation was approved in accordance with the New Hanover County Zoning Ordinances which depicted tennis courts on the property that is now owned by defendants. On 14 March 2002, three months after defendants took title to said property, the Technical Review Committee (\u201cTRC\u201d) of the New Hanover County Planning Board approved a preliminary site plan submitted by defendants for the creation of a 32 unit, subsidized housing development. The TRC concluded that defendant.\u201cmust join the Beau Rivage Homeowners Association for the maintenance of the road, liability insurance, and other expenses incurred with a private development.\u201d\nPlaintiff appealed the TRC\u2019s decision to approve defendants\u2019 site plan to the New Hanover County Commissioners (\u201cCounty Commissioners\u201d), who later affirmed the TRC\u2019s decision on 20 May 2002. Plaintiff appealed the County Commissioners\u2019 order to the Superior Court. The Superior Court has not rendered judgment in the matter.\nAfter plaintiff appealed to the County Commissioners, plaintiff filed a civil complaint in the Superior Court of New Hanover County praying for a temporary restraining order and a preliminary injunction preventing defendants from using the private roads of Beau Rivage Plantation and prohibiting all activities in furtherance of the development of defendants\u2019 land.\nOn 1 April 2002, Judge Paul Jones entered an order temporarily enjoining defendants\u2019 use of plaintiff\u2019s private roads for the purpose of accessing defendants\u2019 property. Defendants submitted a response in opposition to plaintiff\u2019s application for a preliminary injunction and temporary restraining order, which included a motion to dismiss plaintiff\u2019s complaint pursuant to Rule 12(b)(1), 12(b)(6), and Rule 17(a). A hearing on plaintiff\u2019s motion for a preliminary injunction and restraining order and defendants\u2019 motion to dismiss was scheduled for 3 June 2002, but scheduling conflicts within the trial court caused the parties to continue the motion hearing until 3 July 2002.\nAt the end of June 2002, plaintiff filed a Motion to Amend Complaint and Add Additional Parties pursuant to Rules 15 and 21 of the North Carolina Rules of Civil Procedure. Defendants filed a response in opposition to plaintiff\u2019s motion to amend. On 3 July 2002, the trial court\u2019s order enjoining defendants from using the private roads of Beau Rivage Plantation and developing their land expired by its own terms.\nOn 3 August 2002, the trial court entered an order granting defendants\u2019 motion to dismiss and denying plaintiff\u2019s motion to amend its complaint and add additional parties. Plaintiff appeals.\nThe issues presented by the appeal are whether the trial court erred by: (1) denying plaintiff\u2019s motion to amend its pleading; and, (2) granting defendants\u2019 motion to dismiss. For the reasons stated herein, we affirm the order of the trial court.\nBefore we address the merits of plaintiff\u2019s appeal, we note that the record before us is incomplete. The focus of the arguments presented in both briefs on appeal is plaintiff\u2019s \u201cfailure to exhaust administrative remedies.\u201d Generally, defendants argue that plaintiff\u2019s amended complaint seeks to circumvent the administrative process provided in the New Hanover zoning ordinances. Plaintiff argues that its amended complaint does not seek to circumvent said ordinances. The New Hanover zoning ordinances are absent from the record on appeal.\nThis Court must limit its review to the arguments and record presented on appeal. The North Carolina Rules of Appellate Procedure \u201crequires the appellant to include in the record on appeal \u2018so much of the evidence ... as is necessary for an understanding of all errors assigned.\u2019 \u201d Hicks v. Alford, 156 N.C. App. 384, 389, 576 S.E.2d 410, 414 (2003), quoting N.C.R. App. P. 9(a)(1)(e) (2003). When no ordinance is presented to the appellate court through the record on appeal, the appellate court is not permitted to take judicial notice of the ordinance if it exists. See Town of Scotland Neck v. Surety Co., 301 N.C. 331, 338, 271 S.E.2d 501, 505 (1980). Thus, our review of the matter herein is limited in form and substance to the information presented on appeal.\nWe first consider whether the trial court erred by denying plaintiff\u2019s motion to amend its complaint and add additional parties. Rule 15(a) of the North Carolina Rules of Civil Procedure provides that after the time for amendment as a matter of right expires, \u201ca party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (2003). A motion to amend is \u201caddressed to the sound discretion of the court, and its decision will not be disturbed on appeal without a clear showing of abuse of discretion.\u201d Patrick v. Williams, 102 N.C. App. 355, 360, 402 S.E.2d 452, 455 (1991). \u201cWhere there is no declared reason for the denial of a motion to amend, an appellate court \u2018may examine any apparent reasons for such denial.\u2019 \u201d Id., quoting United Leasing Corp. v. Miller, 60 N.C. App. 40, 43, 298 S.E.2d 409, 411 (1982).\nWhile appearing before this Court, plaintiff is also appearing before the Superior Court to determine the validity of the site plan approval. After reviewing the entire record, it appears that the issues presented in plaintiff\u2019s amended complaint are at the heart of the site plan approval pending before the Superior Court. This Court determined in Swain v. Elfland that \u201callow [ing] plaintiff two bites of the apple [] could lead to the possibility that different forums would reach opposite decisions, as well as engender needless litigation in violation of the principles of collateral estoppel.\u201d Swain, 145 N.C. App. 383, 389, 550 S.E.2d 530, 535 (2001). There is evidence within the record to support the trial court\u2019s denial of plaintiff\u2019s motion to amend based on the theory that plaintiff should not be afforded concurrent actions of the same legal arguments. See Swain, 145 N.C. App. at 389, 550 S.E.2d at 535. Thus, plaintiff has failed to evidence that the trial court abused its discretion by denying plaintiff\u2019s motion to amend its complaint.\nPlaintiff\u2019s second assignment of error asserts that it was error for the trial court to dismiss its complaint. Plaintiff contends that its amended complaint corrects any deficiencies in the original complaint. However, as we determined that the trial court did not err in denying plaintiff\u2019s motion to amend its complaint, the question before us is whether the trial court erred in dismissing plaintiff\u2019s original complaint.\nOn appeal from a motion to dismiss, this Court must determine \u201cwhether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.\u201d Harris v. NCNB, 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987). An action may be dismissed for failure to state a claim if no law supports the claim, if sufficient facts to state a good claim are absent, or if a fact is asserted that defeats the claim. Shell Island Homeowners Ass\u2019n v. Tomlinson, 134 N.C. App. 217, 517 S.E.2d 406 (1999).\n\u201c \u2018The primary purpose of a temporary restraining order is usually to meet an emergency when it appears that any delay would materially affect the rights of a plaintiff.\u2019 \u201d Hutchins v. Stanton, 23 N.C. App. 467, 469, 209 S.E.2d 348, 349 (1974), quoting Register v. Griffin, 6 N.C. App. 572, 575, 170 S.E.2d 520, 523 (1969). A temporary restraining order \u201cis only an ancillary remedy for the purpose of preserving the status quo or restoring a status wrongfully disturbed pending the final determination of the action.\u201d Hutchins, 23 N.C. App. at 469, 209 S.E.2d at 349. The process of seeking a temporary restraining order or a preliminary injunction assumes that eventually the moving party wants permanent relief. Id.; A.E.P. Industries v. McClure, 308 N.C. 393, 400, 302 S.E.2d 754, 759 (1983). After a temporary restraining order or a preliminary injunction is granted, it is believed that the case finally will be resolved after a full evidentiary hearing. Id.\nPlaintiffs original complaint alleges that it will suffer \u201cimmediate and irreparable injury, loss, and/or damage\u201d if defendants are not ordered to \u201crefrain, during the pendency of this action, from using the private roads of Beau Rivage Plantation and from activities which constitute development\u201d of defendant\u2019s property. Plaintiff further states that \u201ca temporary restraining order and preliminary injunction during the pendency of Plaintiff\u2019s action are necessary to prevent Defendants from using the private roads of Beau Rivage Plantation and to prevent Defendants from developing\u201d their land.\nPlaintiff\u2019s original complaint requests a temporary injunction and \u201csuch other and further relief as the Plaintiff might be entitled.\u201d However, in Hutchins, this Court determined that the phrase \u201cother and further relief as the Court may deem proper\u201d was insufficient to allege a permanent prayer of relief. Therefore, plaintiff\u2019s prayer for relief in its original complaint is only of a temporary nature and does not seek permanent relief. See Hutchins, 23 N.C. App. at 469, 209 S.E.2d at 349; Artis & Assocs. v. Auditore, 154 N.C. App. 508, 510, 572 S.E.2d 198, 199 (2002). Thus, it was proper for the trial court to dismiss plaintiff\u2019s original complaint.\nFor the reasons stated herein, we affirm the order of the trial court.\nAffirmed.\nJudges WYNN and McCULLOUGH concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Susan J. McDaniel for plaintiff appellant.", "Kenneth A. Shanklin and Matthew A. Nichols for defendant appellees." ], "corrections": "", "head_matter": "BEAU RIVAGE HOMEOWNERS ASSOCIATION, Plaintiff v. BILLY EARL, L.L.C. and CAROLINA GREEN ESTATES, L.L.C., Defendants\nNo. COA03-307\n(Filed 16 March 2004)\n1. Appeal and Error\u2014 judicial notice \u2014 ordinance not in appellate record\nAn appellate court is not permitted to take judicial notice of a county ordinance not in the appellate record.\n2. Pleadings\u2014 amendment denied \u2014 issues in pending action\nThe trial court did not abuse its discretion by denying plaintiffs motion to amend its complaint where the issues were at the heart of a pending case. Parties should not be afforded concurrent actions on the same legal arguments.\n3. Injunctions\u2014 pleading \u2014 prayer for permanent relief \u2014 not sufficient\nLanguage requesting a temporary restraining order and \u201csuch other and further relief as the plaintiff might be entitled\u201d was insufficient to allege a prayer for permanent relief.\nAppeal by plaintiffs from order entered 13 August 2002 by Judge Ernest B. Fullwood in New Hanover County Superior Court. Heard in the Court of Appeals 13 January 2004.\nSusan J. McDaniel for plaintiff appellant.\nKenneth A. Shanklin and Matthew A. Nichols for defendant appellees." }, "file_name": "0325-01", "first_page_order": 355, "last_page_order": 359 }