{ "id": 8208521, "name": "JOHN P. REIDY and wife, TERRI L. REIDY, Plaintiffs v. WHITEHART ASSOCIATION, INC., Defendant", "name_abbreviation": "Reidy v. Whitehart Ass'n", "decision_date": "2007-08-07", "docket_number": "No. COA06-1310", "first_page": "76", "last_page": "85", "citations": [ { "type": "official", "cite": "185 N.C. App. 76" } ], "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": "643 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638086 ], "year": 2007, "pin_cites": [ { "page": "467", "parenthetical": "\" 'Without proper notice of appeal, this Court acquires no jurisdiction.' \"" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0465-01" ] }, { "cite": "625 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635074, 12635075, 12635076 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/625/0785-01", "/se2d/625/0785-02", "/se2d/625/0785-03" ] }, { "cite": "613 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632933 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "270" }, { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/se2d/613/0259-01" ] }, { "cite": "639 S.E.2d 649", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637616, 12637614, 12637615 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/639/0649-03", "/se2d/639/0649-01", "/se2d/639/0649-02" ] }, { "cite": "627 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635431 ], "year": 2006, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0672-01" ] }, { "cite": "182 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175461 ], "year": 2007, "pin_cites": [ { "page": "676-77", "parenthetical": "\" 'Without proper notice of appeal, this Court acquires no jurisdiction.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0675-01" ] }, { "cite": "262 S.E.2d 6", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "299 N.C. 122", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573856, 8573923, 8573900, 8573938, 8573879 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/299/0122-01", "/nc/299/0122-04", "/nc/299/0122-03", "/nc/299/0122-05", "/nc/299/0122-02" ] }, { "cite": "258 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551621 ], "year": 1979, "pin_cites": [ { "page": "339" } ], "opinion_index": 0, "case_paths": [ "/nc-app/43/0338-01" ] }, { "cite": "560 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "567", "parenthetical": "determining that the statutory scheme providing for non-judicial repossession of collateral did not constitute state action sufficient to evoke the protection of the due process clause of the Fourteenth Amendment of the United States Constitution" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 89", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9125509 ], "year": 2002, "pin_cites": [ { "page": "104-05", "parenthetical": "determining that the statutory scheme providing for non-judicial repossession of collateral did not constitute state action sufficient to evoke the protection of the due process clause of the Fourteenth Amendment of the United States Constitution" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0089-01" ] }, { "cite": "507 S.E.2d 272", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "278" } ], "opinion_index": 0 }, { "cite": "349 N.C. 315", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571708 ], "year": 1998, "pin_cites": [ { "page": "322" } ], "opinion_index": 0, "case_paths": [ "/nc/349/0315-01" ] }, { "cite": "360 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3793766, 3788363, 3795889, 3789044, 3793752, 3794619, 3788252, 3795613 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/360/0174-03", "/nc/360/0174-08", "/nc/360/0174-05", "/nc/360/0174-07", "/nc/360/0174-06", "/nc/360/0174-02", "/nc/360/0174-01", "/nc/360/0174-04" ] }, { "cite": "170 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9005872 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "452" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0438-01" ] }, { "cite": "256 S.E.2d 388", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "394" } ], "opinion_index": 0 }, { "cite": "297 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571941 ], "year": 1979, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0524-01" ] }, { "cite": "349 S.E.2d 866", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4735817, 4738571, 4733134, 4739472, 4736988 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0509-02", "/nc/318/0509-05", "/nc/318/0509-04", "/nc/318/0509-01", "/nc/318/0509-03" ] }, { "cite": "346 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "296" } ], "opinion_index": 0 }, { "cite": "82 N.C. App. 441", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359144 ], "year": 1986, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc-app/82/0441-01" ] }, { "cite": "159 S.E. 14", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1931, "pin_cites": [ { "page": "16", "parenthetical": "\"[A] statute which facilitates the intention of the parties neither impairs the obligation of the contract, nor divests vested rights.\"" } ], "opinion_index": 0 }, { "cite": "201 N.C. 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622336 ], "year": 1931, "pin_cites": [ { "page": "62", "parenthetical": "\"[A] statute which facilitates the intention of the parties neither impairs the obligation of the contract, nor divests vested rights.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/201/0059-01" ] }, { "cite": "16 S.E.2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "846", "parenthetical": "\" 'Statutes directed to the enforcement of contracts, or merely providing an additional remedy, or enlarging or making more efficient an existing remedy, for their enforcement, do not impair the obligation of the contracts.' \"" } ], "opinion_index": 0 }, { "cite": "220 N.C. 184", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11300554 ], "year": 1941, "pin_cites": [ { "page": "188", "parenthetical": "\" 'Statutes directed to the enforcement of contracts, or merely providing an additional remedy, or enlarging or making more efficient an existing remedy, for their enforcement, do not impair the obligation of the contracts.' \"" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0184-01" ] }, { "cite": "83 N.C. 291", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277587 ], "year": 1880, "pin_cites": [ { "page": "294-95" } ], "opinion_index": 0, "case_paths": [ "/nc/83/0291-01" ] }, { "cite": "41 L. Ed. 2d 231", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "417 U.S. 927", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1519592, 1519842, 1519512, 1519808 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/417/0927-03", "/us/417/0927-04", "/us/417/0927-02", "/us/417/0927-01" ] }, { "cite": "201 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "908" } ], "opinion_index": 0 }, { "cite": "284 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563071 ], "year": 1974, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0534-01" ] }, { "cite": "166 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 234", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558343 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0234-01" ] }, { "cite": "164 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1968, "pin_cites": [ { "page": "632-33" }, { "page": "633" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 348", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554945 ], "year": 1968, "pin_cites": [ { "page": "350" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0348-01" ] }, { "cite": "591 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "881-82" } ], "opinion_index": 0 }, { "cite": "358 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2985361 ], "year": 2004, "pin_cites": [ { "page": "18" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0001-01" ] }, { "cite": "513 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "573-74" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 807", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240754 ], "year": 1999, "pin_cites": [ { "page": "809" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0807-01" ] }, { "cite": "361 N.C. 166", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3743299, 3739878, 3740493, 3741777, 3738645, 3735861 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/361/0166-06", "/nc/361/0166-03", "/nc/361/0166-02", "/nc/361/0166-01", "/nc/361/0166-05", "/nc/361/0166-04" ] }, { "cite": "177 N.C. App. 116", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8300979 ], "year": 2006, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0116-01" ] } ], "analysis": { "cardinality": 896, "char_count": 21996, "ocr_confidence": 0.744, "pagerank": { "raw": 1.233563954813082e-07, "percentile": 0.60623244830104 }, "sha256": "339906336f99181f50b190dc81fee7d70587db9f088ee5de684d9fbe08d545ad", "simhash": "1:aee01553ae6a7c52", "word_count": 3437 }, "last_updated": "2023-07-14T20:04:26.584781+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge TYSON concur." ], "parties": [ "JOHN P. REIDY and wife, TERRI L. REIDY, Plaintiffs v. WHITEHART ASSOCIATION, INC., Defendant" ], "opinions": [ { "text": "McCullough, Judge.\nPlaintiffs appeal from an order granting defendant\u2019s motion for summary judgment and mandatory injunction and order denying plaintiffs\u2019 motion for summary judgment. Defendant cross-appeals from the same order because the trial court did not award reasonable attorneys\u2019 fees to defendant. We affirm.\nFACTS\nJohn P. Reidy, and wife, Terri L. Reidy (\u201cplaintiffs\u201d) obtained title to Lot 54 in the Whitehart Subdivision (\u201cthe Lot\u201d) by deed recorded on 16 July 1999. On or about 28 February 2005, plaintiff John Reidy requested design approval from the Whitehart Architectural Committee for a structural addition to his property. Specifically, he wanted to add a door and staircase to the rear exterior of his detached garage in order to provide access to the upstairs storage area above his garage. On 3 March 2005, the Architectural Committee denied Mr. Reidy\u2019s request because the addition would not be consistent with the aesthetics of the neighborhood. Despite the Committee\u2019s decision, plaintiffs commenced construction of the staircase on the rear of their detached garage in or about August of 2005.\nIn response to plaintiffs\u2019 disregard of the Architectural Committee\u2019s decision, Whitehart Association, Inc. (\u201cthe Association\u201d) sent plaintiffs a letter on 31 August 2005 inviting them to attend a hearing. Plaintiffs appeared on 27 October 2005 before the Board of the Association. The Board voted to impose a fine in the amount of $25.00 per day commencing on 1 November 2005 for plaintiffs\u2019 violation.\nOn 31 October 2005, plaintiffs filed a complaint against the Association. On 21 December 2005, the Association served its answer, motions to dismiss, motion for judgment on the pleadings, affirmative defenses and counterclaim on plaintiffs. The counterclaim sought, in part, to collect the fines which were secured by a claim of lien. On 3 January 2006, plaintiffs filed their response to the Association\u2019s counterclaim and affirmative defenses.\nOn 12 December 2005, plaintiffs filed a motion for summary judgment as to all but one of the counts included in their complaint. On 27 January 2006, the Association filed its cross motion for summary judgment on all counts contained in defendant\u2019s counterclaim and all counts contained in plaintiffs\u2019 complaint.\nOn 24 February 2006, the trial court entered an order granting the Association\u2019s cross motion for summary judgment on counts 1, 2, 3, 5, 6, and 7 of plaintiffs\u2019 complaint. In addition, the trial court denied plaintiffs\u2019 motion for summary judgment as to counts 1, 2, 3, 5, 6, and 7 of plaintiffs\u2019 complaint. The trial court continued the hearing on count 4 of plaintiffs\u2019 complaint and counts 1 and 2 of the Association\u2019s counterclaim.\nThe plaintiffs filed a motion for summary judgment as to count 4 of their complaint and counts 1 and 2 of defendant\u2019s counterclaim. On 20 June 2006, the trial court entered an order granting the Association\u2019s cross motion for summary judgment as to count 4 of plaintiffs\u2019 complaint. The trial court granted the Association\u2019s cross motion for summary judgment as to counts 1 and 2 of its counterclaim requiring removal of the staircase and door and entering judgment for the fines accrued through the date of the hearing.\nPlaintiffs appeal the trial court\u2019s order entered 20 June 2006. The Association cross appeals the failure of the trial court to award reasonable attorneys\u2019 fees.\nANALYSIS\nAll of plaintiffs\u2019 contentions on appeal contest the trial court\u2019s granting of summary judgment in favor of the Association; so the following standard of review applies. Summary judgment is appropriate only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). \u201cThere is no genuine issue of material fact where a party demonstrates that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.\u201d Harrison v. City of Sanford, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc. review denied, 361 N.C. 166, 639 S.E.2d 649 (2006). On appeal from a grant of summary judgment, this Court reviews the trial court\u2019s decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 573-74 (1999).\nI \u2014 The Association\nPlaintiffs contend the trial court erred in granting summary judgment in favor of the Association on the basis that (1) the Association was improperly formed, and (2) the membership of the Association conflicted with the allowed membership as defined in the Declaration of Covenants, Conditions and Restrictions (\u201cthe Declaration\u201d). We disagree.\n\u201cUnder a quasi-estoppel theory, a party who accepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.\u201d Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 18, 591 S.E.2d 870, 881-82 (2004). Plaintiffs obtained title to the lot on or about 16 July 1999, and they conceded in their response to the counterclaim of the Association that they purchased the lot subject to the Declaration. Nothing in the record illustrates that plaintiffs have contested the validity of the Association between 8 December 2000, the date the Association filed its Articles of Incorporation, and 3 March 2005, the date on which the Architectural Committee denied plaintiffs\u2019 request. However, there is some evidence in the record that plaintiffs recognized the validity of the Association. For example, based on the accounting records of the management company for Whitehart, plaintiffs have paid their annual .assessments consistently since January 2001. In addition, plaintiffs requested design approval from the Architectural Committee for the structural addition. There is also evidence that plaintiff Terry Reidy called the property manager of Whitehart on or about May of 2005 and complained about a neighbor damaging common property. In response to plaintiff Terry Reidy\u2019s complaint, the property manager sent a letter to the neighbor stating that complaints have been received regarding the damage to common property, and that any damage must be fully restored to the prior condition.\nTherefore, plaintiffs are estopped from contesting the validity of the Association.\nII \u2014 Planned Community Act\nSeveral of plaintiffs\u2019 arguments on appeal concern the Planned Community Act (\u201cthe Act\u201d) which is found in Chapter 47F of the North Carolina General Statutes. The Act is instrumental to the instant case because it provides a basis for the Association to fine plaintiffs. See N.C. Gen. Stat. \u00a7 47F-3-102(12) (2005). Plaintiffs argue that the Act has no application to this case because the Association is not an association within the meaning of the Act. In addition, plaintiffs argue that applying the Act to the instant case violates the contracts clause, substantive due process, and procedural due process. North Carolina law is clear that there is a presumption in favor of the constitutionality of a legislatively enacted statute. Vinson v. Chappell, 3 N.C. App. 348, 350, 164 S.E.2d 631, 632-33 (1968), aff'd, 275 N.C. 234, 166 S.E.2d 686 (1969). Unless a statute \u201cclearly, positively and unmistakably appears\u201d to be unconstitutional, then statutes ar\u00e9 to be upheld. Id. at 350, 164 S.E.2d at 633.\nA. The Act\u2019s Application To the Instant Case\nPlaintiffs contend that the Act has no application to this case because the Association is not a lot owners\u2019 association under the Act. We disagree.\nPlaintiffs argue the Association was incorporated after the conveyance of the first lot in violation of N.C. Gen. Stat. \u00a7 47F-3-101 (2005) which requires a \u201clot owners\u2019 association\u201d to be incorporated ho later than the date the first lot in the planned community is conveyed. Id. However, the official comment of the original version of the Act provided that the \u201cAct is effective January 1, 1999 and applies in its entirety to all planned communities created on or after that date except as provided . ..,\u201d and N.C. Gen. Stat. \u00a7 47F-3-101 was not one of the provisions that was noted to be applicable to pre-1 January 1999 communities. N.C. Gen. Stat. \u00a7 47F-1-102 (Official Comment) (1999). Subsequently, this portion of the official comment was implemented into the actual language of the statute. N.C. Gen. Stat. \u00a7 47F-1-102 (2005). Accordingly, we disagree with plaintiffs.\nB. Contract Clause\nNext, plaintiffs contend the trial court erred in granting summary judgment in favor of the Association because retroactive application of N.C. Gen. Stat. \u00a7 47F-3-102(12) and N.C. Gen. Stat. \u00a7 47F-3-107.1 (2005), as provided for by N.C. Gen. Stat. \u00a7 47F-l-102(c), violates the contract clause of the United States Constitution. We disagree.\nN.C. Gen. Stat. \u00a7 47F-3-102(12) allows a homeowners\u2019 association to impose reasonable fines or suspend privileges or services provided by the association for reasonable periods for violations of the declaration, bylaws, and rules and regulations of the association. Id. N.C. Gen. Stat. \u00a7 47F-3-107.1 concerns, among other things, the procedures a homeowners association must follow when fining a homeowner pursuant to N.C. Gen. Stat. \u00a7 47F-3-102(12). N.C. Gen. Stat. \u00a7 47F-3-107.1. Further, N.C. Gen. Stat. \u00a7 47F-l-102(c) creates a presumption that both N.C. Gen. Stat. \u00a7 47F-3-102(12) and N.C. Gen. Stat. \u00a7 47F-3-107.1 applies to all planned communities created in North Carolina before 1 January 1999. N.C. Gen. Stat. \u00a7 47F-l-102(c). Plaintiffs argue that retroactive application of the above-referenced statutes substantially changes the contract between the parties, in violation of the contract clause.\n\u201cAny law which enlarges, abridges or changes the intention of the parties as indicated by the provisions of a contract necessarily impairs the contract whether the law professes to apply to obligations of the contract or to regulate the remedy for enforcement of the contract.\u201d Adair v. Burial Assoc., 284 N.C. 534, 538, 201 S.E.2d 905, 908, appeal dismissed, 417 U.S. 927, 41 L. Ed. 2d 231 (1974). However, in Tabor v. Ward, 83 N.C. 291, 294-95 (1880), the North Carolina Supreme Court stated:\nIt is well settled by a long current of judicial decisions, state and federal, that the legislature of a state may at any time modify the remedy, even take away a common law remedy altogether, without substituting any in its place, if another efficient remedy remains, without impairing the obligation of the contract.\nHere, the provision of the Act does not disturb a vested right, impair a binding contract or create a new obligation. The provision merely provides an additional remedy for the enforcement of the Declaration. See Byrd v. Johnson, 220 N.C. 184, 188, 16 S.E.2d 843, 846 (1941) (\u201c \u2018Statutes directed to the enforcement of contracts, or merely providing an additional remedy, or enlarging or making more efficient an existing remedy, for their enforcement, do not impair the obligation of the contracts.\u2019 \u201d). In addition, the Act facilitates the intent of the parties by solidifying the importance of the restrictive covenants. Bateman v. Sterrett, 201 N.C. 59, 62, 159 S.E. 14, 16 (1931) (\u201c[A] statute which facilitates the intention of the parties neither impairs the obligation of the contract, nor divests vested rights.\u201d). Accordingly, we disagree with plaintiffs.\nC. Substantive Due Process\nPlaintiffs contend the trial court erred in granting summary judgment in favor of the Association because retroactive application of N.C. Gen. Stat. \u00a7 47F-3-102(12) and N.C. Gen. Stat. \u00a7 47F-3-107.1, as provided for by N.C. Gen. Stat. \u00a7 47F-l-102(c), violates plaintiffs\u2019 substantive due process rights under the United States Constitution and the North Carolina \u201claw of the land\u201d provision. We disagree.\n\u201cWhen confronted with a challenge to a validly adopted statute, the courts must assume that the General Assembly acted within its constitutional limits unless the contrary clearly appears.\u201d Shipman v. N.C. Private Protective Services Bd., 82 N.C. App. 441, 443, 346 S.E.2d 295, 296, appeal dismissed, disc. review denied, 318 N.C. 509, 349 S.E.2d 866 (1986). \u201cFor a statute to be within the limits set by the federal due process clause and the North Carolina \u2018law of the land\u2019 provision, all that is required is that the statute serve a legitimate purpose of state government and be rationally related to the achievement of that purpose.\u201d Id.\nThe Act does not violate plaintiffs\u2019 substantive due process rights. A legitimate purpose of the Act is to provide a statutory framework for dealing with modem real estate developments, particularly, planned communities. In addition, the individual statutes that form the Act are rationally related to this purpose. Accordingly, we disagree with plaintiffs.\nD. Procedural Due Process\nPlaintiffs contend the procedure provided by the Association violated plaintiffs\u2019 procedural due process rights under both the Fourteenth Amendment and the North Carolina \u201claw of the land\u201d provision. We disagree.\nOur Supreme Court has stated that the \u201cmandate of procedural due process contained in our Constitution and in the Fourteenth Amendment applies only to actions by the government which deprive individuals of their fundamental rights.\u201d Bank v. Burnette, 297 N.C. 524, 534, 256 S.E.2d 388, 394 (1979). Procedural due process, as guaranteed by the Fourteenth Amendment \u201c \u2018restricts governmental actions and decisions which [\u201c] deprive individuals of \u2018liberty\u2019 or \u2018property\u2019 interests within the meaning of the Due Process Clause of the . . . Fourteenth Amendment.\u201d \u2019 \u201d Clayton v. Branson, 170 N.C. App. 438, 452, 613 S.E.2d 259, 270, disc. review denied, 360 N.C. 174, 625 S.E.2d 785 (2005). In addition, the North Carolina Supreme Court has noted that under the Fourteenth Amendment, \u201c[t]he fundamental premise of procedural due process protection is' notice and the opportunity to be heard.\u201d Peace v. Employment Sec. Comm\u2019n, 349 N.C. 315, 322, 507 S.E.2d 272, 278 (1998). \u201cOur state courts generally treat the corresponding section of the N.C. Constitution as the functional equivalent of its federal counterpart.\u201d Clayton, 170 N.C. App. at 451, 613 S.E.2d at 269.\nHere, the procedure provided by the Association did not violate plaintiffs\u2019 procedural due process rights. First, we question whether the creation of the statutory framework by the legislature constitutes \u201cstate action\u201d for procedural due process purposes. See Giles v. First Virginia Credit Servs., Inc., 149 N.C. App. 89, 104-05, 560 S.E.2d 557, 567 (2002) (determining that the statutory scheme providing for non-judicial repossession of collateral did not constitute state action sufficient to evoke the protection of the due process clause of the Fourteenth Amendment of the United States Constitution). Next, even if the creation of the statutory framework is sufficient state action, the Association did not violate plaintiffs\u2019 procedural due process rights. Pursuant to N.C. Gen. Stat. \u00a7 47F-3-107.1, \u201cthe lot owner charged shall be given notice of the charge, opportunity to be heard and to present evidence, and notice of the decision.\u201d Id. Thus, the Act comports with procedural due process requirements. Furthermore, the Association provided plaintiffs with notice of the charge, opportunity to be heard at a meeting, opportunity to present evidence and notice of the decision. Accordingly, we disagree with plaintiffs.\nIll \u2014 Conduct of the Association\nPlaintiffs\u2019 final two contentions concern the conduct of the Association. First, plaintiffs contend the Association\u2019s conduct of the hearing violated any contract between the parties. Next, plaintiffs contend that genuine issues of material fact exist as to whether the Association discriminated against plaintiffs in enforcement of the Declaration. We disagree.\nRegarding the issue of the conduct of the hearing, plaintiffs\u2019 brief contains no citation to any legal authority, and thus will be taken as abandoned. N.C. R. App. P. 28(b)(6). Regarding the contention that genuine issues of material fact exist as to whether the Association discriminated against plaintiffs, plaintiffs have admitted to having erected their staircase and door without the Architectural Committee\u2019s approval, and did so in the face of disapproval. Moreover, there does not appear to be any evidence of discrimination on the part of the Association. Accordingly, we disagree with plaintiffs.\nIV \u2014 Attorney's Fees\nThe Association contends the trial court erred in failing to award reasonable attorneys\u2019 fees pursuant to N.C. Gen. Stat. \u00a7 47F-3-116(e) (2005). We disagree.\nRule 3(a) of the North Carolina Rules of Appellate Procedure provides as follows:\nAny party entitled by law to appeal from a judgment or order of a superior or district court rendered in a civil action or special proceeding may take appeal by filing notice of appeal with the clerk of superior court and serving copies thereof upon all other parties within the time prescribed by subdivision (c) of this rule.\nN.C. R. App. P. 3(a). Here, the Association filed its \u201cCross Notice of Appeal\u201d with the Clerk of the Court of Appeals, not with the Clerk of Superior Court of Wake County. \u201cThe requirement of timely filing and service of notice of appeal is jurisdictional, and unless the requirements .. . are met, the appeal must be dismissed.\u201d Smith v. Smith, 43 N.C. App. 338, 339, 258 S.E.2d 833, 835 (1979), disc. review denied, 299 N.C. 122, 262 S.E.2d 6 (1980). Although the Association states in its brief that the \u201cCross Notice of Appeal is on file with the trial court . . . and was in the file with the trial court when counsel for [the Association] reviewed the court file,\u201d no cross notice of appeal is in the record that was filed with the trial court in order to give us jurisdiction. See Blevins v. Town of West Jefferson, 182 N.C. App. 675, 676-77, 643 S.E.2d 465, 467 (2007) (\u201c \u2018Without proper notice of appeal, this Court acquires no jurisdiction.\u2019 \u201d). (citation omitted). Accordingly, we dismiss the Association\u2019s cross-appeal.\nAffirmed.\nChief Judge MARTIN and Judge TYSON concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Harris & Hilton, P.A., by Nelson G. Harris, for plaintiff appellants.", "Jordan Price Wall Gray Jones & Carlton, by Henry W. Jones, Jr., Brian S. Edlin and Jessica E. Cooley, for defendant appellee, cross-appellant." ], "corrections": "", "head_matter": "JOHN P. REIDY and wife, TERRI L. REIDY, Plaintiffs v. WHITEHART ASSOCIATION, INC., Defendant\nNo. COA06-1310\n(Filed 7 August 2007)\n1. Estoppel\u2014 validity of homeowners association \u2014 delay in contesting \u2014 earlier recognition\nPlaintiffs were estopped from contesting the validity of a homeowners association where they purchased their lot subject to the declaration of covenants; they did not contest the validity of the association for nearly five years, until the architectural committee denied their design approval request; and there was evidence in the record that plaintiffs recognized the validity of the association by paying dues. '\n2. Associations; Deeds\u2014 validity of homeowners association \u2014 incorporation after sale of first lot\nThe Planned Community Act applies to this case despite plaintiffs contention that the homeowners association was incorporated after the conveyance of the first lot in violation of N.C.G.S. \u00a7 47F-3-101 (2005). That was not one of the provisions made applicable to communities created before the effective date of the Act.\n3. Deeds; Constitutional Law\u2014 contract clause \u2014 homeowners association \u2014 retroactive application of enforcement statute\nThe Contract Clause of the United States Constitution was not violated by retroactive application of a statute allowing fines and suspension of services for violating the regulations and covenants of a homeowners association. The statute merely provides an additional remedy for the enforcement of the declaration and does not disturb a vested right, impair a binding contract, or create a new obligation.\n4. Deeds; Constitutional Law\u2014 substantive due process\u2014 Planned Community Act\nRetroactive application of the Planned Community Act did not violate plaintiffs\u2019 substantive due process rights. The individual statutes that form the Act are rationally related to the legitimate purpose of providing a statutory framework for dealing with modem real estate developments, particularly planned communities.\n5. Constitutional Law\u2014 procedural due process \u2014 enforcement of homeowners association covenants\nPlaintiffs\u2019 procedural due process rights were not violated by the procedure provided by a homeowners association. Even if the creation of the statutory framework by the legislature is sufficient state action, the statutes provided notice and the opportunity to be heard, and the association in this case provided both.\n6. Appeal and Error\u2014 preservation of issues \u2014 absence of legal authority\nAn argument in plaintiffs\u2019 brief with no citation to legal authority was taken as abandoned.\n7. Deeds; Constitutional Law\u2014 enforcement of homeowners association covenants \u2014 no evidence of discrimination\nA homeowners association did not discriminate against plaintiffs by refusing to allow a building modification where plaintiffs admitted erecting their staircase and door without the architectural committee\u2019s approval, and in fact did so in the face of disapproval. Moreover, there does not appear to be any evidence of discrimination.\n8. Appeal and Error\u2014 cross-appeal \u2014 notice filed with superior court clerk\nThe homeowners association\u2019s cross-appeal was dismissed for lack of jurisdiction where its notice of cross-appeal was filed with the Clerk of the Court of Appeals, not with the Clerk of Superior Court of Wake County.\nAppeal by plaintiffs and cross-appeal by defendant from order entered 20 June 2006 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 4 June 2007.\nHarris & Hilton, P.A., by Nelson G. Harris, for plaintiff appellants.\nJordan Price Wall Gray Jones & Carlton, by Henry W. Jones, Jr., Brian S. Edlin and Jessica E. Cooley, for defendant appellee, cross-appellant." }, "file_name": "0076-01", "first_page_order": 108, "last_page_order": 117 }