{ "id": 4166662, "name": "LARRY CRAIG HODGIN AND DELORIS H. HODGIN, JOHN W. DESTEFANO AND CATHERINE DESTEFANO, AND JED PATTON, Plaintiffs v. JEFFREY N. BRIGHTON AND CARRIE L. BRIGHTON, Defendants", "name_abbreviation": "Hodgin v. Brighton", "decision_date": "2009-04-07", "docket_number": "No. COA08-347", "first_page": "126", "last_page": "132", "citations": [ { "type": "official", "cite": "196 N.C. App. 126" } ], "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": "616 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633472, 12633473, 12633471 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/se2d/616/0234-02", "/se2d/616/0234-03", "/se2d/616/0234-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "777" } ], "opinion_index": 0 }, { "cite": "295 N.C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564714 ], "year": 1978, "pin_cites": [ { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0500-01" ] }, { "cite": "524 S.E.2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "563", "parenthetical": "quoting Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978)" } ], "opinion_index": 0 }, { "cite": "351 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155833 ], "year": 2000, "pin_cites": [ { "page": "300", "parenthetical": "quoting Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978)" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0293-01" ] }, { "cite": "200 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "624-25" } ], "opinion_index": 0 }, { "cite": "284 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562175 ], "year": 1973, "pin_cites": [ { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0407-01" ] }, { "cite": "467 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "411", "parenthetical": "citing Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)" } ], "opinion_index": 0 }, { "cite": "342 N.C. 879", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796075 ], "year": 1996, "pin_cites": [ { "page": "881", "parenthetical": "citing Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0879-01" ] }, { "cite": "359 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3800229, 3793893, 3794537, 3799052, 3804845, 3795663, 3804149, 3798264, 3796825 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/nc/359/0631-01", "/nc/359/0631-07", "/nc/359/0631-05", "/nc/359/0631-04", "/nc/359/0631-08", "/nc/359/0631-03", "/nc/359/0631-06", "/nc/359/0631-02", "/nc/359/0631-09" ] }, { "cite": "216 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "457-58" } ], "opinion_index": 0 }, { "cite": "26 N.C. App. 506", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553818 ], "year": 1975, "pin_cites": [ { "page": "508" } ], "opinion_index": 0, "case_paths": [ "/nc-app/26/0506-01" ] }, { "cite": "609 S.E.2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "282", "parenthetical": "quoting Martin v. Martin, 26 N.C. App. 506, 508, 216 S.E.2d 456, 457-58 (1975)" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468479 ], "year": 2005, "pin_cites": [ { "page": "76", "parenthetical": "quoting Martin v. Martin, 26 N.C. App. 506, 508, 216 S.E.2d 456, 457-58 (1975)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0069-01" ] }, { "cite": "579 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "507" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 445", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187124 ], "year": 2003, "pin_cites": [ { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0445-01" ] }, { "cite": "601 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "920" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 333", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8411331 ], "year": 2004, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0333-01" ] }, { "cite": "246 S.E.2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "opinion_index": 1 } ], "analysis": { "cardinality": 684, "char_count": 15299, "ocr_confidence": 0.74, "pagerank": { "raw": 1.2623918636641122e-07, "percentile": 0.6127390052470241 }, "sha256": "6f28bc6a2c14fcd6bb960e2ced7ee0e0b7bf198ee4b152b140d2984035469140", "simhash": "1:14abdc69755a97f6", "word_count": 2395 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge JACKSON concurs.", "Judge STROUD concurs in separate opinion." ], "parties": [ "LARRY CRAIG HODGIN AND DELORIS H. HODGIN, JOHN W. DESTEFANO AND CATHERINE DESTEFANO, AND JED PATTON, Plaintiffs v. JEFFREY N. BRIGHTON AND CARRIE L. BRIGHTON, Defendants" ], "opinions": [ { "text": "STEELMAN, Judge.\nWhere a Restriction Agreement is clear and unambiguous, this Court will not re-write the restrictions nor go back and examine extrinsic evidence to interpret the restrictions.\nI. Factual and Procedural Background\nJeffrey N. and Carrie L. Brighton (defendants) own Lot 18, Block 4 of Tuckaway Park Subdivision located in Charlotte, North Carolina. A plat of the Subdivision is recorded in the office of the Register of Deeds for Mecklenburg County in Deed Book 1580 at page 511. The plaintiffs also own property in the Subdivision; Larry Craig and Deloris H. Hodgin\u2019s (Hodgins) property adjoins defendants\u2019 property.\nTuckaway Park is a restricted residential subdivision. A Restriction Agreement dated 29 March 1954 is recorded in Deed Book 1673 at page 553 of the Mecklenburg County Register. An amendment to the restrictions was filed 20 September 1971 in Deed Book 3348 at page 539. In pertinent part, the restrictions provide:\nA. Residence. No residence may be located nearer to the front property line than fifty (50') feet, or nearer to an inside property line than twenty-five (25') feet; except that as to Lot 4, Block 2, and Lot 4, Block 4, no residence may be located nearer the front property line on Carmel Club Drive than twenty-five (25') feet; and, as to lots 6 and 7, Block 3, no residence may be located nearer the front property line than forty (40') feet.\nB. Outbuildings. No outbuilding, except a garage attached to the main residence may be located nearer to the front property line than One Hundred (100') feet, or nearer to an inside property line than seven (7') feet.\nDefendants constructed a garage, attached to their residence, on the side of their lot that adjoins the Hodgins\u2019 property. On 16 February 2007, plaintiffs Hodgin filed a complaint against defendants asserting that the structure violated the side yard setback requirements contained in the restrictions. By order dated 5 July 2007, plaintiffs were allowed to amend their complaint. The amended complaint asserted that defendants had violated the restrictive covenants for the Subdivision. Plaintiffs requested that the trial court permanently enjoin defendants \u201cfrom violating any of the restrictions set forth in the Restriction Agreement[,]\u201d and \u201center an Order requiring the Defendants to remove any improvements on Defendants\u2019 property that are in violation of the Restrictions^]\u201d\nDefendants\u2019 answer asserted a number of affirmative defenses including that the residences of the plaintiffs violated the Restriction Agreement and that they were barred from enforcing the restrictions based upon unclean hands, breach of contract, waiver, estoppel, acquiescence, and abandonment. Defendants further asserted a contingent counterclaim based upon front setback violations of the plaintiffs\u2019 residences.\nOn 29 October 2007, defendants served a Motion for Partial Summary Judgment as to \u201cPlaintiffs\u2019 claim for a permanent injunction.\u201d Both parties submitted affidavits in support of and in opposition to the motion for summary judgment.\nOn 4 January 2008, the trial court entered an Order Granting Partial Summary Judgment. Although the order is captioned \u201cOrder Granting Partial Summary Judgment,\u201d the trial court granted summary judgment as to all of plaintiffs\u2019 claims and dismissed plaintiffs\u2019 action.\nPlaintiffs appeal.\nII. Standard of Review\nThe appellate courts of this state review the granting of a motion for summary judgment based upon whether there was a material issue of fact and whether one of the parties was entitled to judgment as a matter of law. Coastal Plains Utilities., Inc. v. New Hanover Cty., 166 N.C. App. 333, 340, 601 S.E.2d 915, 920 (2004). It is based upon the pleadings, affidavits, and depositions presented to the court. Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 447, 579 S.E.2d 505, 507 (2003).\nIII. Ambiguity of the Restriction Agreement\nIn their first argument, plaintiffs contend the restrictions are ambiguous as to limits on outbuildings; therefore, \u201c[b]y the sheer definition of ambiguity, the parties to this Restriction Agreement have brought forth a genuine issue of material fact as to the meaning and intent of the Restriction Agreement. . . .\u201d We disagree.\nPlaintiffs filed affidavits with the court asserting that their interpretation of the restrictions was that the garage could be located no closer than twenty-five feet from a side lot line. They further argue that the conflict between the interpretation set forth in their affidavits and the defendants\u2019 affidavits creates a material issue of fact making the granting of summary judgment improper.\nWhere the language of a contract is plain and unambiguous, the construction of the agreement is a matter of law; and the court may not ignore or delete any of its provisions, nor insert words into it, but must construe the contract as written, in the light of the undisputed evidence as to the custom, usage, and meaning of its terms.\nHemric v. Groce, 169 N.C. App. 69, 76, 609 S.E.2d 276, 282 (2005) (quoting Martin v. Martin, 26 N.C. App. 506, 508, 216 S.E.2d 456, 457-58 (1975)), cert. denied, 359 N.C. 631, 616 S.E.2d 234 (2005). \u201cIf the plain language of a contract is clear, the intention of the parties is inferred from the words of the contract.\u201d Walton v. City of Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411 (1996) (citing Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624-25 (1973)). If the language is clear and only one reasonable interpretation exists, \u201cthe courts must enforce the contract as written; they may not, under the guise of construing an ambiguous term, rewrite the contract or impose liabilities on the parties not bargained for and found therein.\u201d Gaston Cty. Dyeing Mach. Co. v. Northfield Ins. Co., 351 N.C. 293, 300, 524 S.E.2d 558, 563 (2000) (quoting Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978)).\nWe hold that the language of the restrictions is clear and unambiguous. Plaintiffs argue the terms of the restrictions are ambiguous, and an attached garage is not an \u201coutbuilding\u201d but is a \u201cresidence.\u201d They contend that once a garage is attached to the main residence, it becomes part of the residence and is therefore subject to the twenty-five feet setback requirement.\nThe restrictions do not define either \u201coutbuilding\u201d or \u201cgarage;\u201d however, \u201cgarage\u201d is mentioned in Paragraph III(B), under the heading Outbuildings. \u201cNo garage may provide space for more than three (3) automobiles.\u201d\nThe use of outbuildings is restricted by paragraph 11(C) of the restrictions:\nC. Outbuildings. No outbuilding may be erected on any lot other than such as is customarily incidental to residential use. No outbuilding, trailer, or temporary, or incomplete structure, may be used as a residence, except that the family of a servant of the family occupying the main residence may occupy a permanent outbuilding.\nThe restrictions further state in paragraph IV(B), under the heading Outbuildings. \u201cNo outbuilding, except a garage attached to the main residence may be located....\u201d (emphasis added). This language expressly excepts attached garages from the setback restrictions applicable to other outbuildings. Nothing in the restrictions suggests that an attached garage is subject to the twenty-five feet setback for the primary residence. Therefore, we conclude that the restrictions are clear and unambiguous, and we will not re-write the restrictions nor go back and examine extrinsic evidence to interpret them. Because we conclude that the restrictions are unambiguous, we do not reach plaintiffs\u2019 remaining arguments.\nAFFIRMED.\nJudge JACKSON concurs.\nJudge STROUD concurs in separate opinion.", "type": "majority", "author": "STEELMAN, Judge." }, { "text": "STROUD, Judge\nconcurring in separate opinion.\nWhile I concur with the mandate of the majority opinion, I write separately to address other issues the majority opinion has chosen not to address. I reiterate, as the majority opinion notes, that in plaintiffs\u2019 amended complaint plaintiffs requested that the trial court (1) permanently enjoin the defendants \u201cfrom violating any of the restrictions set forth in the Restriction Agreement^] and (2) \u201center an Order requiring the Defendants to remove any improvements on Defendants\u2019 property that are in violation of the Restrictions[.]\u201d Furthermore, on or about 6 August 2007, defendants filed an answer to plaintiffs\u2019 amended complaint which included counterclaims contingent on certain determinations of the trial court. Defendants\u2019 6 August 2007 answer reads, \u201cIn the event that the Court finds and concludes that the Restriction Agreement and the setback restrictions contained therein remains in full force and effect, and that the Brightons are not in violation of that Agreement, the Brightons assert the following Counterclaims against the Hodgins and the Destefanos . . . ,\u201d (Emphasis added.)\nOn 4 January 2008, the trial court entered its order, entitled \u201cORDER GRANTING PARTIAL SUMMARY JUDGMENT[.]\u201d The order stated in pertinent part as follows:\n[f]rom a review of the Complaint, it appears that the only claim for relief by the Plaintiffs is one for an Order enjoining Defendants from building an addition on to their house. Although denominated as a Motion for Partial Summary Judgment on the claim for a \u201cpermanent injunction,\u201d in fact, the Motion is one for Summary Judgment on the Complaint of the Plaintiffs against Defendants. . . .\nThe trial court thereafter granted summary judgment for defendants as to plaintiffs\u2019 claims and dismissed plaintiffs\u2019 complaint in its entirety. '\nThe trial court order did not specifically address the contingencies in defendants\u2019 counterclaims, and it is unclear from the record whether defendants currently have pending counterclaims. The conditions stated for defendants\u2019 counterclaims were that \u201cthe [c]ourt finds and concludes [(1)] that the Restriction Agreement and the setback restrictions remain in full force and effect, and [(2)] that the [defendants\u2019] are not in violation of that Agreementf.]\u201d These conditions were fulfilled, which would indicate that the counterclaims were active based upon the order granting \u201cpartial\u201d summary judgment.\nThe trial court order reads, \u201cThere is no just reason for delay in entry of this Judgment. Accordingly, this Judgment is a final Judgment on the merits of the Complaint.\u201d This language is similar to the language of North Carolina Rule of Civil Procedure 54(b) for certification by the trial court for immediate appeal of an interlocutory order. See N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b). Therefore, both the title of the order, \u201cORDER GRANTING PARTIAL SUMMARY JUDGMENT],]\u201d and the order\u2019s language which seems to mirror \u201ccertification\u201d language, see id., could be read as an indication that the trial court did not consider its order a final order which disposed of all claims as to all parties, so that certification of this interlocutory order was necessary for this Court to review the issues which were determined. See id. However, no party has argued that this appeal is interlocutory, and the majority opinion has addressed this appeal on its merits as a final judgment which dismissed the case in its entirety as to all claims and parties.\nThe trial court also effectively converted defendants\u2019 motion for partial summary judgment into a motion for summary judgment and dismissed plaintiffs\u2019 entire complaint because \u201cit appears that the only claim for relief by the Plaintiffs is one for an Order enjoining Defendants from building an addition on to their house.\u201d We note that defendants contributed to the trial court\u2019s misconception as the last sentence in their 29 October 2007 motion for partial summary judgment is, \u201cWHEREFORE, the Brightons respectfully request that the Court enter an Order granting them partial summary judgment on Plaintiffs\u2019 sole claim for relief-permanent injunction.\u201d (Emphasis added.)\nHowever, plaintiffs\u2019 amended complaint also clearly requests \u201can Order requiring the Defendants to remove any improvements on Defendants\u2019 property that are in violation of the Restrictions.\u201d Therefore, the trial court order erred in stating that the plaintiff had only brought forth one claim for relief. Plaintiffs requested both (1) injunctive relief to prevent defendants from continuing construction in the future and (2) an order requiring defendants to remove the portion of the construction that had already been done. Plaintiffs\u2019 suit included both future relief, an injunction prohibiting future violations, as well as relief for past actions of defendants, removal of construction already done. It is true that the two claims for relief arise out of the same legal theory, violation of the Restriction Agreement, but there are differences between the remedies of equitable, injunctive relief to prevent future violations and legal relief to address a past violation. In addition, as noted above, defendants had raised possible counterclaims which are not clearly addressed in the record.\nThe majority has assumed that the trial court\u2019s order was in fact a final order which disposed of all claims by all parties, and this assumption is probably correct, but I prefer not to base an opinion upon assumptions. To the extent that these assumptions are correct, I agree entirely with the majority\u2019s analysis of the substantive issues, and for this reason I concur in the result. I therefore write separately to state my concerns regarding the lack of clarity in the trial court\u2019s order and in the record and to admonish the trial court to take care to address clearly each pending claim of each party.\n. There is some indication in the record that the word \u201cnot\u201d was a typographical error, so that the condition for the counterclaim should have read \u201cthat the Brightons are in violation of that Agreement. . .[;]\u201d (emphasis added), if this is correct, the condition for the counterclaim was not fulfilled.", "type": "concurrence", "author": "STROUD, Judge" } ], "attorneys": [ "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Hatcher Kincheloe, Harmony W. Taylor, and Gerald A. Stein, II, for plaintiff-appellants.", "James, McElroy & Diehl, P.A., by Gary S. Hemric, Adam L. Ross, and Sarah M. Brady, for defendant-appellees." ], "corrections": "", "head_matter": "LARRY CRAIG HODGIN AND DELORIS H. HODGIN, JOHN W. DESTEFANO AND CATHERINE DESTEFANO, AND JED PATTON, Plaintiffs v. JEFFREY N. BRIGHTON AND CARRIE L. BRIGHTON, Defendants\nNo. COA08-347\n(Filed 7 April 2009)\nDeeds\u2014 restrictive covenants \u2014 construction of attached garage\nThe trial court did not err by granting summary judgment in favor of defendants in a case seeking to enforce a subdivision\u2019s restrictive covenants after defendants constructed a garage attached to their residence that allegedly violated the side yard setback requirements contained in the restrictions because: (1) the language of the pertinent restrictions expressly excepted attached garages from the setback restrictions applicable to other outbuildings, and nothing in the restrictions suggested that an attached garage was subject to the twenty-five feet setback for the primary residence; and (2) the Court of Appeals will not rewrite the restrictions nor go back and examine extrinsic evidence to interpret them.\nJudge STROUD concurring.\nAppeal by plaintiffs from order entered 4 January 2008 by Judge Nathaniel J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 24 September 2008.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Hatcher Kincheloe, Harmony W. Taylor, and Gerald A. Stein, II, for plaintiff-appellants.\nJames, McElroy & Diehl, P.A., by Gary S. Hemric, Adam L. Ross, and Sarah M. Brady, for defendant-appellees." }, "file_name": "0126-01", "first_page_order": 154, "last_page_order": 160 }