{ "id": 4079290, "name": "IN THE MATTER OF THE PROPOSED FORECLOSURE OF CLAIM OF LIEN FILED AGAINST JEFFREY J. JOHNSON, DONNA N. JOHNSON, GARY PROFFIT and JO PROFFIT By STARBOARD ASSOCIATION, INC., DATED APRIL 30, 2008 RECORDED IN DOCKET No. 08-M-676 IN THE OFFICE OF THE CLERK OF SUPERIOR COURT FOR BRUNSWICK COUNTY", "name_abbreviation": "In re the Proposed Foreclosure of Claim of Lien Filed Against Johnson", "decision_date": "2011-06-21", "docket_number": "No. COA COA10-703", "first_page": "535", "last_page": "551", "citations": [ { "type": "official", "cite": "212 N.C. App. 535" } ], "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": "672 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642742 ], "weight": 5, "year": 2009, "pin_cites": [ { "page": "70" }, { "page": "70" }, { "page": "70" }, { "page": "71" } ], "opinion_index": 0, "case_paths": [ "/se2d/672/0053-01" ] }, { "cite": "648 S.E.2d 546", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639087 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "550", "parenthetical": "internal citations omitted" }, { "page": "552" }, { "page": "551" }, { "page": "551" }, { "page": "551-52" } ], "opinion_index": 0, "case_paths": [ "/se2d/648/0546-01" ] }, { "cite": "628 S.E.2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635588 ], "year": 2006, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/se2d/628/0431-01" ] }, { "cite": "615 S.E.2d 699", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633349 ], "year": 2005, "pin_cites": [ { "page": "701", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/615/0699-01" ] }, { "cite": "195 N.C. App. 133", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4165432 ], "weight": 3, "year": 2009, "pin_cites": [ { "page": "159-60" }, { "page": "160" }, { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/195/0133-01" ] }, { "cite": "432 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532594 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0303-01" ] }, { "cite": "424 S.E.2d 904", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "332 N.C. 664", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504581, 2506265, 2507060, 2507545, 2506079 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/332/0664-03", "/nc/332/0664-01", "/nc/332/0664-04", "/nc/332/0664-05", "/nc/332/0664-02" ] }, { "cite": "418 S.E.2d 236", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "238" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 586", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313651 ], "pin_cites": [ { "page": "590-91" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0586-01" ] }, { "cite": "513 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "837", "parenthetical": "\"Here, the trial corut's decision to award attorneys fees was clearly affected by the outcome of the judgment from which plaintiffs appealed.\"" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 777", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240453 ], "year": 1999, "pin_cites": [ { "page": "782", "parenthetical": "\"Here, the trial corut's decision to award attorneys fees was clearly affected by the outcome of the judgment from which plaintiffs appealed.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0777-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-294", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "year": 2007, "opinion_index": 0 }, { "cite": "185 N.C. App. 462", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8210384 ], "weight": 5, "year": 2007, "pin_cites": [ { "page": "469", "parenthetical": "internal citations omitted" }, { "page": "471" }, { "page": "471" }, { "page": "471" }, { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0462-01" ] }, { "cite": "177 N.C. App. 273", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301204 ], "year": 2006, "pin_cites": [ { "page": "276" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0273-01" ] }, { "cite": "477 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "226" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11889774 ], "year": 1996, "pin_cites": [ { "page": "448-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0446-01" ] }, { "cite": "542 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "301" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440718 ], "year": 2001, "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0290-01" ] }, { "cite": "459 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "479" } ], "opinion_index": 0 }, { "cite": "341 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793153 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "130" }, { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0125-01" ] }, { "cite": "604 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410657 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc-app/167/0028-01" ] }, { "cite": "426 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "720" } ], "opinion_index": 0 }, { "cite": "109 N.C. App. 163", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524752 ], "year": 1993, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/nc-app/109/0163-01" ] }, { "cite": "375 S.E.2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "908", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "324 N.C. 80", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487200 ], "year": 1989, "pin_cites": [ { "page": "85", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0080-01" ] }, { "cite": "171 N.C. App. 479", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8437849 ], "year": 2005, "pin_cites": [ { "page": "483", "parenthetical": "internal quotations and citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/171/0479-01" ] }, { "cite": "312 S.E.2d 215", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "218" } ], "opinion_index": 1 }, { "cite": "66 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525808 ], "year": 1984, "pin_cites": [ { "page": "646" } ], "opinion_index": 1, "case_paths": [ "/nc-app/66/0641-01" ] }, { "cite": "541 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "742" }, { "page": "742" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 707", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9443163 ], "year": 2001, "pin_cites": [ { "page": "714" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0707-01" ] }, { "cite": "301 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561859, 8561827, 8561893, 8561804, 8561785 ], "year": 1980, "opinion_index": 1, "case_paths": [ "/nc/301/0090-04", "/nc/301/0090-03", "/nc/301/0090-05", "/nc/301/0090-02", "/nc/301/0090-01" ] }, { "cite": "267 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "918" }, { "page": "918", "parenthetical": "citation and internal quotation marks omitted" } ], "opinion_index": 1 }, { "cite": "47 N.C. App. 599", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551080 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "603" }, { "page": "603" } ], "opinion_index": 1, "case_paths": [ "/nc-app/47/0599-01" ] }, { "cite": "693 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "709", "parenthetical": "quoting In re Foreclosure of Burgess, 47 N.C. App. 599, 603, 267 S.E.2d 915, 918, appeal dismissed, 301 N.C. 90, - S.E.2d - (1980)" } ], "opinion_index": 1 }, { "cite": "577 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "406", "parenthetical": "\"In a foreclosure proceeding, the [petitioner] bears the burden of proving that there was a valid debt, default, right to foreclose under power of sale, and notice.\"" } ], "opinion_index": 1 }, { "cite": "156 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9191190 ], "year": 2003, "pin_cites": [ { "page": "489", "parenthetical": "\"In a foreclosure proceeding, the [petitioner] bears the burden of proving that there was a valid debt, default, right to foreclose under power of sale, and notice.\"" } ], "opinion_index": 1, "case_paths": [ "/nc-app/156/0477-01" ] }, { "cite": "291 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "305 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568293, 8568358, 8568327, 8568267, 8568222 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/nc/305/0300-03", "/nc/305/0300-05", "/nc/305/0300-04", "/nc/305/0300-02", "/nc/305/0300-01" ] }, { "cite": "284 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "555" } ], "opinion_index": 1 }, { "cite": "55 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526709 ], "year": 1981, "pin_cites": [ { "page": "71" } ], "opinion_index": 1, "case_paths": [ "/nc-app/55/0068-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "year": 2009, "pin_cites": [ { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)" } ], "opinion_index": 1 }, { "cite": "459 S.E.2d 477", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "page": "480" }, { "page": "479" }, { "page": "479" }, { "page": "480" }, { "page": "479", "parenthetical": "emphasis added" }, { "page": "479-80", "parenthetical": "emphasis added" } ], "opinion_index": 1 }, { "cite": "341 N.C. 125", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793153 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "130" }, { "page": "130" } ], "opinion_index": 1, "case_paths": [ "/nc/341/0125-01" ] } ], "analysis": { "cardinality": 1209, "char_count": 39826, "ocr_confidence": 0.734, "pagerank": { "raw": 6.174109876929349e-08, "percentile": 0.3833515004156613 }, "sha256": "5511ce58e3f271bf386de6efcf26422e987c0724095de324cdebc28d0a77032b", "simhash": "1:b96ab447447c8654", "word_count": 6388 }, "last_updated": "2023-07-14T17:12:23.503415+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE concurs.", "Judge HUNTER, Robert C., concurring in part and dissenting in part by separate opinion." ], "parties": [ "IN THE MATTER OF THE PROPOSED FORECLOSURE OF CLAIM OF LIEN FILED AGAINST JEFFREY J. JOHNSON, DONNA N. JOHNSON, GARY PROFFIT and JO PROFFIT By STARBOARD ASSOCIATION, INC., DATED APRIL 30, 2008 RECORDED IN DOCKET No. 08-M-676 IN THE OFFICE OF THE CLERK OF SUPERIOR COURT FOR BRUNSWICK COUNTY" ], "opinions": [ { "text": "CALABRIA, Judge.\nStarboard Association, Inc. (\u201cpetitioner\u201d), appeals the trial court\u2019s order dismissing petitioner\u2019s foreclosure of claim of lien pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (2009) (\u201cRule 41\u201d). Petitioner also appeals the order awarding attorney\u2019s fees in the amount of $19,780.83 to Donna N. Johnson, Jeffrey J. Johnson, Gary Proffit and Jo Proffit (collectively, \u201crespondents\u201d). We vacate and remand.\nI. BACKGROUND\nOn 18 June 1981, petitioner filed Articles of Incorporation (\u201cthe Articles\u201d) with the North Carolina Secretary of State for the purpose of administering the operation and management of Starboard By The Sea Condominium (\u201cStarboard\u201d) in Ocean Isle Beach, North Carolina, in accordance with Chapter 47A of the North Carolina General Statutes (\u201cthe Unit Ownership Act\u201d). A Declaration of Condominium (\u201cthe Declaration\u201d) and the By-Laws of Starboard Association, Inc. (\u201cthe By-Laws\u201d) were filed on 2 July 1981 with the Brunswick County Register of Deeds (\u201cregister of deeds\u201d) pursuant to the Unit Ownership Act. The property, known and identified as Starboard, consists of 139 residential units located in 33 separate buildings.\nThe Declaration was amended four times. The fifth amendment, \u201cPhase V\u201d beachfront property, added three condominium units in one building (\u201cBuilding 33\u201d) and a second swimming pool to Starboard. Each unit in Building 33 had a 1.06160 percentage of undivided interest in Starboard\u2019s common areas and facilities. As a result of this amendment, the individual undivided interests of the other units in the common areas were recalculated, based upon the fair market value of each unit in relation to the aggregate fair market value of all units.\nOn 11 October 1997, petitioner\u2019s general membership amended the By-Laws (\u201cthe amended By-Laws\u201d) and authorized petitioner to make, levy, and collect assessments against members to defray costs, as provided in Article XXIII of the Declaration (\u201cArticle XXIII\u201d). Article XXIII provided \u201call assessments levied against the Unit Owners and their Condominium Units shall be uniform\u201d and, unless specifically otherwise provided for in the Declaration, all assess-merits made by petitioner shall be in such an amount that any assessment levied against the unit owner and its condominium unit \u201cshall bear the same ratio to the total assessment made against all unit owners and their condominium units as the undivided interest in common property appurtenant to each condominium.\u201d Article III of the amended By-Laws required petitioner\u2019s Board of Directors (\u201cthe Board\u201d) to adopt a budget for each fiscal year to estimate common expenses for, inter alia, operation, management and maintenance of the common property.\nOn 6 August 2004, respondents acquired Unit B of Building 33, Phase V, as tenants in common. Two months later, at the annual meeting of petitioner\u2019s general membership, an extensive renovation for most of Starboard\u2019s buildings was proposed, but was not approved until the 8 October 2005 annual meeting. The attending members approved the renovation project by a vote of 33 to 29 as a non-binding vote to guide the new Board. Following the annual meeting, the Board entered into a contract to renovate all the buildings except Building 33, and levied a special assessment against the unit owners of all the buildings except Building 33. The capital renovation project included: (1) replacing the exterior siding, windows, sliding glass doors; (2) installing new stairways, landings, decks, and new wiring; and (3) other repairs.\nIn 2006, respondents and the unit owners of Building 33 requested renovations for Building 33. The Board notified the unit owners in Building 33 to expect renovations \u201cin the near future.\u201d Prior to the renovations for Building 33, the Board received three bids, then entered into a contract with Puckett Enterprises, Inc., to renovate Building 33. The renovations included: (1) new vinyl siding, windows, and doors; (2) renovation of the stairways and decks; (3) pylon repairs; and (4) other capital repairs and renovations.\nOn 8 November 2007, the Board approved a special assessment for the renovations in the amount of $55,000.00 per unit for all unit owners in Building 33. Later, the amount for each unit owner in Building 33 was lowered to $54,000.00 (\u201cthe assessment\u201d). Subsequently, the Board adopted a written resolution ratifying the assessment. On 15 December 2007, respondents paid petitioner $27,000.00 of the assessment, under protest.\nOn 20 August 2008, petitioner notified respondents of a Notice of Hearing Prior to Foreclosure of Claim of Lien (\u201cthe Notice\u201d) of respondents\u2019 units. The Notice stated that the foreclosure proceedings were initiated pursuant to N.C. Gen. Stat. \u00a7 47C due to respondents\u2019 alleged \u201cfailure to timely pay assessments and other charges levied by [Starboard].\u201d Respondents were given thirty-five days to dispute the validity of a $30,887.00 debt. On 7 October 2008, respondents filed an Objection to Foreclosure of Claim of Lien, contesting, inter alia, the right of petitioner to proceed with foreclosure proceedings and objecting to the validity of the alleged $30,887.00 debt which formed the basis of the foreclosure proceeding. Respondents claimed they were not in default because the assessment was not uniform and was not included in any annual budget or special assessment budget which was ratified by the Association, as required by the Articles, the Declaration, the amended By-Laws, and Chapter 47C of the North Carolina General Statutes. Respondents asked the trial court to dismiss the foreclosure proceeding with prejudice and award respondents reasonable attorney\u2019s fees. The trial court entered a consent order transferring the matter from Brunswick County to Mecklenburg County Superior Court \u201cdue to the complexity of the issues.\u201d\nOn 3 August 2009, at the conclusion of petitioner\u2019s evidence at the hearing, respondents moved for dismissal of this non-jury action on the ground that petitioner had no right to relief on the facts and the law. The trial court referred to the assessment in its findings as the \u201calleged assessment,\u201d then concluded that the assessment by the Board was unlawful because it was not computed in accordance with respondents\u2019 percentage undivided interest in the common areas and facilities and violated the Unit Ownership Act and the Declaration. The court also concluded that the alleged debt which formed the basis for petitioner\u2019s claim of lien and foreclosure of respondents\u2019 unit was invalid. The trial court entered an Order of Dismissal and Judgment on 11 December 2009 (\u201cthe 2009 order\u201d) dismissing petitioner\u2019s action with prejudice pursuant to Rule 41, and entered another order on 21 May 2010 (\u201cthe 2010 order\u201d), awarding respondents reasonable attorney\u2019s fees in the amount of $19,780.83. Petitioner appeals both the 2009 and the 2010 orders.\nII. STANDARD OF REVIEW\n\u201cThe proper standard of review for a motion for an involuntary dismissal under Rule 41 is (1) whether the findings of fact by the trial court are supported by competent evidence, and (2) whether the findings of fact support the trial court\u2019s conclusions of law and its judgment.\u201d Dean v. Hill, 171 N.C. App. 479, 483, 615 S.E.2d 699, 701 (2005) (internal quotations and citation omitted). When this Court reviews a trial court\u2019s dismissal under Rule 41, the \u201ctrial court\u2019s findings of facts supported by substantial competent evidence are conclusive on appeal, even where there is conflict in the evidence.\u201d Smith v. Butler Mtn. Estates Property Owners Assoc., 324 N.C. 80, 85, 375 S.E.2d 905, 908 (1989) (citations omitted). \u201c[A] trial court\u2019s conclusions of law are reviewable de novo on appeal.\u201d Riley v. Ken Wilson Ford, Inc., 109 N.C. App. 163, 168, 426 S.E.2d 717, 720 (1993).\nAs an initial matter, we note that, \u201c[i]n the absence of a valid objection, the [trial] court\u2019s findings of fact are presumed to be supported by competent evidence, and are binding on appeal.\u201d Miles v. Carolina Forest Ass\u2019n., 167 N.C. App. 28, 34 35, 604 S.E.2d 327, 332 (2004). In the instant case, petitioner does not object to any of the trial court\u2019s twenty seven findings of fact in the 2009 order. Therefore, they are binding on appeal. Id.\nIII. FORECLOSURE OF CLAIM OF LIEN\nPetitioner argues that the trial court improperly dismissed its foreclosure under claim of lien based upon petitioner\u2019s failure to allocate the cost of the renovations for the common areas for all unit owners on a pro rata basis in accordance with the percentage interests instead of allocating the cost per building.\nA. Unit Owners\u2019 Undivided Interest in the Common Areas\nThe claims in the instant case are governed by the Unit Ownership Act, N.C. Gen. Stat. \u00a7\u00a7 47A-1 to 28 (2008).\nUnit ownership may be created by an owner or the co owners of a building by an express declaration of their intention to submit such property to the provisions of the Article, which declaration shall be recorded in the office of the register of deeds of the county in which the property is situated.\nN.C. Gen. Stat. \u00a7 47A-2. \u201cThe administration of every property shall be governed by bylaws, a true copy of which shall be annexed to the declaration. No modification of or amendment to the bylaws shall be valid, unless set forth in an amendment to the declaration and such amendment is duly recorded.\u201d N.C. Gen. Stat. \u00a7 47A-18.\nN.C. Gen. Stat. \u00a7 47A-6 states:\n(a) Each unit owner shall be entitled to an undivided interest in the common areas and facilities in the ratio expressed in the declaration. Such ratio shall be in the approximate relation that the fair market value of the unit at the date of the declaration bears to the then aggregate fair market value of all the units having an interest in said common areas and facilities.\n(b) The ratio of the undivided interest of each unit owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered except with the unanimous consent of all unit owners expressed in an amended declaration duly recorded.\n(c) The undivided interest in the common areas and facilities shall not be separated from the unit to which it appertains and shall be deemed conveyed or encumbered with the unit even though such interest is not expressly mentioned or described in the conveyance or other instrument.\nN.C. Gen. Stat. \u00a7 47A-6. In accordance with this statute and Article IV of the Declaration, each unit owner is granted an undivided interest in the common areas and facilities in the ratio expressed in the declaration, which is based upon the fair market value of the unit in relation to the total aggregate fair market value of all the units.\nB. Uniform Assessments for Additions or Improvements\nN.C. Gen. Stat. \u00a7 47A-9 states, in pertinent part:\nThe necessary work of maintenance, repair, and replacement of the common areas and facilities and the making of any additions or improvements thereto shall be carried out only as provided herein and in the bylaws.\nN.C. Gen. Stat. \u00a7 47A-9. N.C. Gen. Stat. \u00a7 47A-12 states, in pertinent part:\nThe unit owners are bound to contribute pro rata, in the percentages computed according to G.S. 47A-6 of this Article, toward the expenses of administration and of maintenance and repair of the general common areas and facilities and, in proper cases of the limited common areas and facilities, of the building and toward any other expense lawfully agreed upon.\nN.C. Gen. Stat. \u00a7 47A-12. In accordance with this statute and Article XXIII of the Declaration, all assessments levied against all unit owners shall be uniform and, unless specifically otherwise provided for in the Declaration, all assessments made by petitioner shall be in such an amount that any assessment levied against the unit owner and its condominium unit \u201cshall bear the same ratio to the total assessment made against all Unit Owners and their Condominium Units as the undivided interest in Common Property appurtenant to all Condominium Units.\u201d \u201c[T]he provisions of section 47A-12 are designed to protect unit owners from shouldering a disproportionate share of the maintenance expenses for common areas . . . .\u201d Dunes South Homeowners Assn. v. First Flight Builders, 341 N.C. 125, 130, 459 S.E.2d 477, 479 (1995).\nHowever, Article XVI of the Declaration (\u201cArticle XVI\u201d) allows for an assessment other than pro rata amongst all unit owners in special circumstances in which a certain unit or units are exclusively benefitted. Article XVI provides, in pertinent part:\n[W]here any alterations and improvements are exclusively or substantially for the benefit of the Owner or Owners of certain Condominium Unit or Units requesting the same, then the cost of such alterations or improvements shall be assessed against and collected solely from the Owner or Owners of the Condominium Unit or Units exclusively or substantially benefitted, the assessment to be levied in such proportion as may be determined by the Board of Directors of [Starboard].\n(emphases added).\n\u201cWhere a statute contains two clauses which prescribe its applicability and clauses are connected by the disjunctive \u2018or\u2019, application of the statute is not limited to cases falling within both clauses but applies to cases falling within either one of them.\u201d Grassy Creek Neighborhood Alliance, Inc. v. City of Winston-Salem, 142 N.C. App. 290, 297, 542 S.E.2d 296, 301 (2001).\n\u201cIn its elementary sense the word \u2018or\u2019, as used in a statute, is a disjunctive particle indicating that the various members of the sentence are to be taken separately .... When in the enumeration of persons or things in a statute, the conjunction is placed immediately before the last of the series, the same connective is understood between the previous members.\u201d\nId. (quoting 73 Am.Jur. 2d, Statutes \u00a7 241 (1974)). Therefore, petitioner can show that it had the authority to provide for an assessment against respondents if it can prove that the improvements \u201cexclusively\u201d or \u201csubstantially\u201d benefitted the units in Building 33.\nRespondents contend that the units in Building 33 were not exclusively or substantially benefitted since \u201c[t]he only unit improvements were replacement of the windows and doors, a relatively insubstantial part of the assessment.\u201d (emphasis added). Respondents further contend that \u201c[t]he common areas, which by definition belong to all the unit owners, were the substantial and primary subject of the renovations and repairs to Building 33.\u201d (emphasis added). However, the test under Article XVI is a two-part test, i.e., whether the improvements substantially or exclusively benefitted the units in Building 33. Respondents only address whether the improvements \u201csubstantially\u201d benefitted the units. Furthermore, they argue that the common areas were the \u201cprimary\u201d benefit of the improvements. However, \u201cprimary\u201d is not synonymous with \u201cexclusive.\u201d\nUnder the provisions of the Unit Ownership Act and the Declaration, as amended, the common areas involved in the assessment included the siding, stairways and decks, pylons, the roof, and other exterior renovations and capital improvements to the building. The renovations to Building 33 included new vinyl siding, renovation of the stairways and decks, pylon repairs, and other capital repairs and renovations. Therefore, under the Unit Ownership Act and the amended Declaration, these common areas, which by definition belong to all the unit owners, must be assessed uniformly against all Starboard members according to their pro rata share. The trial court was correct in concluding that petitioner\u2019s assessment against respondents\u2019 unit for the Building 33 renovations was unlawful in that it was not computed in accordance with respondents\u2019 percentage undivided interest in the common areas and facilities, as required by the Unit Ownership Act and the amended Declaration.\nHowever, under the Articles, exterior windows and doors are not common areas. See Article III.A (\u201cAll exterior doors, window frames, panes and screens shall be part of the respective Condominium Units[.]\u201d). Therefore, under the Unit Ownership Act and the amended Declaration, the improvements to Building 33\u2019s exterior windows and doors were not common area improvements for the benefit of all Starboard unit owners. The exterior windows and doors were \u201cexclusively\u201d for the benefit of the unit owners in Building 33. As a result, petitioner had the authority to assess the cost of the windows and doors for Building 33 solely against the unit owners in Building 33 \u201cin such proportion as may be determined by the Board of Directors of [Starboard].\u201d Article XVI.\nThe court dismissed the foreclosure action without making separate findings or conclusions for the renovations for the windows and doors that exclusively benefitted the unit owners of Building 33 and the portions of the renovations that were for common areas. Therefore, the trial court\u2019s 2009 order dismissing petitioner\u2019s action with prejudice is vacated and remanded. Consequently, petitioner must perform a new assessment. The assessment will separate respondents\u2019 windows and doors that exclusively benefitted the unit owners of Building 33 from the portion of the renovations that were for the common areas and facilities.\nTV. ATTORNEY\u2019S FEES\nSubsequent to the Unit Ownership Act, our General Assembly enacted the North Carolina Condominium Act (\u201cthe Condominium Act\u201d), N.C. Gen. Stat. \u00a7 47C-1-101 el seq. As a general rule, the Condominium Act applies prospectively \u201cto all condominiums created . . . after October 1, 1986.\u201d N.C. Gen. Stat. \u00a7 47C-1-102 (2007).\nThe Condominium Act also expressly lists, however, a number of sections which are to be retroactively applied to condominiums created prior to 1 October 1986. One of these provisions, G.S. 47C-4-117, expressly authorizes the recovery of attorney\u2019s fees and provides in pertinent part: \u201cIf a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of person adversely affected by that failure has a claim for appropriate relief. The court may award reasonable attorney\u2019s fees to the prevailing party.\u201d G.S. 47C-4-117 (1986). This statute is specific authority contained within the very Chapter that currently governs in part the operation of [petitioner].\nBrookwood Unit Ownership Assn. v. Delon, 124 N.C. App. 446, 448-49, 477 S.E.2d 225, 226 (1996).\nIt is left to the sound discretion of the trial court whether attorney fees will be granted. To show an abuse of discretion, [petitioner] must prove that the trial court\u2019s ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision.\nRosenstadt v. Queens Towers Homeowners\u2019 Ass\u2019n, 177 N.C. App. 273, 276, 628 S.E.2d 431, 433 (2006).\n\u201cThe issue of jurisdiction over the subject matter of an action may be raised at any time during the proceedings, including on appeal. This Court is required to dismiss an appeal ex mero motu when it determines the lower court was without jurisdiction to decide the issues.\u201d McClure v. County of Jackson, 185 N.C. App. 462, 469, 648 S.E.2d 546, 550 (2007) (internal citations omitted).\nIn McClure, this Court held that a trial court lacked subject matter jurisdiction under N.C. Gen. Stat. \u00a7 1-294 (2007) to enter an order awarding attorneys\u2019 fees and costs after notice of appeal had been filed as to the underlying judgment. McClure, 185 N.C. App. at 471, 648 S.E.2d at 552. As McClure acknowledged, and prior decisions of this Court had held, if an award of attorneys\u2019 fees is the result of a party\u2019s prevailing as to the underlying judgment, then the issue of attorneys\u2019 fees cannot be deemed a \u201cmatter included in the action and not affected by the judgment appealed from,\u201d N.C. Gen. Stat. \u00a7 1-294, and, therefore, the trial court lacks jurisdiction to enter an order awarding attorneys\u2019 fees following appeal of the judgment. See McClure, 185 N.C. App. at 471, 648 S.E.2d at 551 (\u201cWhen, as in the instant case, the award of attorney\u2019s fees was based upon the plaintiff being the \u2018prevailing party\u2019 in the proceedings, the exception set forth in N.C. Gen. Stat. \u00a7 1-294 is not applicable.\u201d); Gibbons v. Cole, 132 N.C. App. 777, 782, 513 S.E.2d 834, 837 (1999) (\u201cHere, the trial corut\u2019s decision to award attorneys fees was clearly affected by the outcome of the judgment from which plaintiffs appealed.\u201d); Brooks v. Giesey, 106 N.C. App. 586, 590-91, 418 S.E.2d 236, 238 (holding that when \u201ca statute such as section 6-21.5, which contains a \u2018prevailing party\u2019 requirement,\u201d is the basis for award of attorneys\u2019 fees, trial court \u201cis divested of jurisdiction\u201d over request for attorneys\u2019 fees by appeal of judgment), disc. review allowed, disc. review on additional issues denied, 332 N.C. 664, 424 S.E.2d 904 (1992), aff\u2019d, 334 N.C. 303, 432 S.E.2d 339 (1993).\nSwink v. Weintraub, 195 N.C. App. 133, 159-60, 672 S.E.2d 53, 70 (2009).\nIn the instant case, the basis for the award of attorney\u2019s fees was N.C. Gen. Stat. \u00a7 47C-4-117, which provides in pertinent part:\nIf a declarant or any other person subject to this chapter fails to comply with any provision hereof or any provision of the declaration or bylaws, any person or class of person adversely affected by that failure has a claim for appropriate relief. The court may award reasonable attorney\u2019s fees to the prevailing party.\nN.C. Gen. Stat. \u00a7 47C-4-117. Therefore, an award of attorney\u2019s fees \u201cis directly dependent upon whether the judgment is sustained on appeal.\u201d Swink, 195 N.C. App. at 160, 672 S.E.2d at 70. Accordingly, a trial court lacks jurisdiction to enter an award of attorney\u2019s fees under N.C. Gen. Stat. \u00a7 47C-4-117 once notice of appeal has been filed as to the judgment. See id.\nIn the instant case, the 2009 Order was entered 11 December 2009. Petitioner filed notice of appeal from that order on 6 January 2010. The trial court entered its order awarding attorney\u2019s fees on 21 May 2010. Since petitioner had already appealed from the 2009 Order, the trial court lacked jurisdiction under N.C. Gen. Stat. \u00a7 1-294 to enter the order awarding attorney\u2019s fees. We note that the 2009 Order stated, \u201cThe Respondents [sic] request for attorney\u2019s fees pursuant to Chapter 47C of the North Carolina General Statutes is deferred for hearing at a later date.\u201d \u201cThis Court in McClure, however, held that such a \u2018reservation\u2019 of an issue was not sufficient to permit the trial court to subsequently enter an order on the issue, because \u2018[i]t is fundamental that a court cannot create jurisdiction where none exists.\u2019 \u201d Swink, 195 N.C. App. at 160, 672 S.E.2d at 70 (quoting McClure, 185 N.C. App. at 471, 648 S.E.2d at 551).\nRespondents may or may not have a claim for attorney\u2019s fees under N.C. Gen. Stat. \u00a7 47C-4-117 (2009). However, since the 2010 order awarding attorney\u2019s fees is a matter of jurisdiction, we must vacate and remand the 2010 Order.\nAs this Court suggested in McClure, \u201cthe better practice is for the trial court to defer entry of the written judgment until after a ruling is made on the issue of attorney\u2019s fees ..., and incorporate all of its rulings into a single, written judgment. This will result in only one appeal, from one judgment, incorporating all issues in the case.\u201d\nId. at 160, 672 S.E.2d at 71 (quoting McClure, 185 N.C. App. at 471, 648 S.E.2d at 551-52.\nV. CONCLUSION\nThe trial court\u2019s orders dismissing petitioner\u2019s action with prejudice and awarding attorney\u2019s fees are vacated and remanded for further proceedings not inconsistent with this opinion.\nVacated and remanded.\nJudge ELMORE concurs.\nJudge HUNTER, Robert C., concurring in part and dissenting in part by separate opinion.\n. While the pleadings in the instant case cited Chapter 47C of the North Carolina General Statutes, this case is governed by the provisions of Chapter 47A of the General Statutes, rather than Chapter 47C, because Chapter 47A applies to all condominiums created within this State before 1 October 1986. See Dunes South Homeowners Assn. v. First Flight Builders, 341 N.C. 125, 127, 459 S.E.2d 477, 477 n.1 (1995).", "type": "majority", "author": "CALABRIA, Judge." }, { "text": "HUNTER, Robert C., Judge,\nconcurring in part and dissenting in part.\nI agree with the majority\u2019s conclusion that this case must be vacated and remanded to the trial court for a proper determination regarding the costs of those renovations which were \u201cexclusively\u201d for the benefit of the condominium unit owned by respondents Jeffrey J. Johnson, Donna N. Johnson, Gary Proffit, and Jo Proffit. I likewise concur in vacating the trial court\u2019s order awarding attorney\u2019s fees to respondents due to the lack of jurisdiction to enter such an order. I disagree, however, with the majority\u2019s holding that the trial court correctly concluded that petitioner Starboard Association, Inc.\u2019s assessment was \u201cunlawful\u201d because it was not uniform and not levied on a pro rata basis. Consequently, I respectfully dissent.\nStarboard filed this action to foreclose on the claims of lien asserted against respondents ownership interest in the condominium unit located in Building 33 of the Starboard by the Sea condominium complex in Ocean Isle, North Carolina. The foreclosure proceedings were initiated under N.C. Gen. Stat. \u00a7 45-21.16 (2009) based on respondents\u2019 alleged \u201cfailure to timely pay assessments and other charges levied by [Starboard].\u201d\nAccording to N.C. Gen. Stat. \u00a7 45-21.16(d), \u201cthere are only four issues before the clerk at a foreclosure hearing: [1] the existence of a valid debt of which the party seeking to foreclose is the holder, [2] the existence of default, [3] the trustee\u2019s right to foreclose, and [4] the sufficiency of notice to the record owners of the hearing.\u201d In re Foreclosure of Helms, 55 N.C. App. 68, 71, 284 S.E.2d 553, 555 (1981), disc. review denied, 305 N.C. 300, 291 S.E.2d 149 (1982); accord In re Foreclosure of Brown, 156 N.C. App. 477, 489, 577 S.E.2d 398, 406 (2003) (\u201cIn a foreclosure proceeding, the [petitioner] bears the burden of proving that there was a valid debt, default, right to foreclose under power of sale, and notice.\u201d). \u201c \u2018On appeal from a determination by the clerk that the trustee is authorized to proceed, the judge of the district or superior court having jurisdiction is limited to determining [de novo] the same four issues resolved by the clerk.\u2019 \u201d In re Adams, \u2014 N.C. App. \u2014, \u2014, 693 S.E.2d 705, 709 (2010) (quoting In re Foreclosure of Burgess, 47 N.C. App. 599, 603, 267 S.E.2d 915, 918, appeal dismissed, 301 N.C. 90, \u2014 S.E.2d \u2014 (1980)).\nAfter this matter was transferred to superior court from the clerk of court, the court conducted a bench trial where, at the close of Starboard\u2019s evidence, it granted respondents\u2019 motion for involuntary dismissal pursuant to Rule 41(b), ruling that Starboard had failed to establish the existence of a valid debt under N.C. Gen. Stat. \u00a7 45-21.16(d)\u2019s first prong. With respect to the validity of the debt, the trial court found that in 2005, Starboard contracted for the renovation of Buildings 1 through 32, but not Building 33; that Starboard imposed a special assessment against the owners of the units in Buildings 1 through 32; that in 2007, Starboard contracted for the repair and renovation of Building 33; that Starboard levied a special assessment against the unit owners of Building 33, including respondents, in the amount of $54,000.00 per unit; that the total cost of the renovations to Buildings 1 through 33 was $5,074,000.00; and, that \u201capplying the Respondent\u2019s [sic] common area percentage ownership interest[] to this total would have resulted in an assessment against Respondents of $53,865.54, just $134.46 less than the actual assessment against Respondents for the Building 33 renovations alone.\u201d Based on these findings, the trial court concluded:\n2. The assessment by the Board of Directors of Starboard against the Respondents\u2019 unit for the Building 33 renovations was unlawful in that it was not computed in accordance with Respondent\u2019s [sic] percentage undivided interest in the common areas and facilities, as required by \u00a7 47A-6 and 47A-12 of the N.C. Unit Ownership Act, Chapter 47A of the North Carolina General Statutes, and the Declaration of Condominium for Starboard By The Sea.\n3. The Board of Directors did not have the authority to assess the cost of renovations for Building 33 solely against the units located in Building 33, despite the fact that Respondents and other owner[s] of units located in Building 33 requested such renovations.\n[4] The alleged debt which forms the basis for the claim of hen and foreclosure of the Petitioner against Respondents\u2019 unit is therefore invalid.\nThe trial court, consequently, dismissed with prejudice Starboard\u2019s foreclosure action.\nIn concluding that the debt based on Starboard\u2019s claim of lien was invalid, the trial court determined, and the majority agrees, that Starboard violated N.C. Gen. Stat. \u00a7 47A-12 (2009) and Article XXIII of the amended Declaration of Condominium in that the challenged assessment was not uniform and was not levied on a pro rata basis. The statute provides in pertinent part:\nThe unit owners are bound to contribute pro rata, in the percentages computed according to G.S. 47A-6 of this Article, toward the expenses of administration and of maintenance and repair of the general common areas and facilities and, in proper cases of the limited common areas and facilities, of the building and toward any other expense lawfully agreed upon. No unit owner may exempt himself from contributing toward such expense by waiver of the use or enjoyment of the common areas and facilities or by abandonment of the unit belonging to him.\nN.C. Gen. Stat. \u00a7 47A-12. Section A of Art. XXIII of the Declaration provides in pertinent part:\nAll assessments levied against the Unit Owners and their Condominium Units shall be uniform and, unless specifically otherwise provided for in this Declaration of Condominium, all assessments made by the Association shall be in such an amount that any assessment levied against a Unit Owner and his Condominium Unit shall bear the same ratio to the total assessment made against all Unit Owners and their Condominium Units as the undivided interest in Common Property appurtenant to each Condominium bears to the total undivided interest in Common Property appurtenant to all Condominium Units.\nRespondents argued at trial, and the majority appears to agree, that respondents are not obligated to pay for any of the renovations (except for the \u201cexclusive\u201d benefit renovations) because the costs of both phases of the renovations were not aggregated and apportioned pro rata in a single, uniform assessment of all unit owners at the conclusion of all the work, but rather each unit owner was assessed piecemeal at the conclusion of the phase of the renovations affecting the owner\u2019s unit. Neither \u00a7 47A-12 nor Declaration Art. XXIII, Sec. A mandate such a severe result. Notably, both \u00a7 47A-12 and the declaration focus on the ultimate outcome of the assessment process, not the process itself. N.C. Gen. Stat. \u00a7 47A-12 only requires unit owners to \u201ccontribute pro rata\u201d according to their calculated share; it does not impose any restrictions on owners\u2019 associations regarding the sequencing of assessments. (Emphasis added.) Nor does any other provision of the Unit Ownership Act dictate the procedure through which an owners\u2019 association may assess unit owners so long as the \u201cwork\u201d is \u201ccarried out\u201d in compliance with the Act and the association\u2019s declaration. N.C. Gen. Stat. \u00a7 47A-6. Similarly, Sec. A, Art. XXIII of Starboard\u2019s Declaration merely requires \u201cuniform\u201d assessments levied in accordance with the specified ratio.\nHere, Starboard\u2019s assessment was clearly uniform in that the record indicates that all unit owners were assessed. And each unit owner was ultimately assessed on a pro rata basis. To be candid, as the trial court found and Starboard concedes, Starboard miscalculated respondents\u2019 assessment by $134.46. The majority appears to hold, however, that this minor discrepancy ($54,000.00 versus $53,865.54) warrants finding the entire assessment void. Our Supreme Court\u2019s reasoning in Dunes South Homeowners Assn. v. First Flight Builders, 341 N.C. 125, 459 S.E.2d 477 (1995), one of the few appellate decisions dealing with the Unit Ownership Act, does not support the majority\u2019s holding. In Dunes South Homeowners Assn., 341 N.C. at 130, 459 S.E.2d at 480, the Court held that a condominium developer, as a unit owner, could not \u201cunilaterally exempt itself from the payment of its pro rata share of the maintenance expenses for the common areas\u201d under \u00a7 47A-12. As the Court noted, the overarching goal of Unit Ownership Act is to \u201censure the orderly, reliable and fair government of condominium projects and to protect each owner\u2019s interest in his or her own unit as well as the common areas and facilities.\u201d Id. at 130, 459 S.E.2d at 479. To that end, the Court concluded that the statute was intended to be a shield to \u201cprotect unit owners from shouldering a disproportionate share of the maintenance expenses for common areas\u201d not a sword to allow unit owners to escape paying their pro rata share of community expenses. Id. at 130, 459 S.E.2d at 479. Yet, to borrow Dunes South Homeowners Assn.\u2019s words, \u201c[tjhis is exactly what [respondents] attempted to do.\u201d Id. at 130-31, 459 S.E.2d at 480.\nIn the end, all 33 buildings were renovated and each unit owner was assessed approximately their pro rata share of the costs of those renovations. The fact that the amount of respondents\u2019 assessment was incorrectly calculated does not require invalidating the entire debt on the assessment. Rather, as this Court has held, N.C. Gen. Stat. \u00a7 45-21.16(d) \u201cpermit[s] the clerk to find a valid debt of which the party seeking to foreclose is the holder if there is competent evidence that the party seeking to foreclose is the holder of some valid debt, irrespective of the exact amount owed.\u201d Burgess, 47 N.C. App. at 603, 267 S.E.2d at 918 (citation and internal quotation marks omitted) (emphasis added).\nThe $134.46 difference between respondents\u2019 actual assessment and the amount their assessment would have been if Starboard had aggregated the renovation costs on all 33 buildings before levying the assessments underscores the illogic of respondents\u2019 argument and the majority\u2019s holding. The per unit expense of the renovations of all 33 buildings was substantially the same \u2014 approximately $54,000.00\u2014 irrespective of whether the assessment based on that per unit expense was levied at the end of the first phase of the renovations or at the end of all the renovations. Neither \u00a7 47A-12 nor Dunes South Homeowners Assn. mandate hyper-technical compliance at the expense of \u201censur[ing] the orderly, reliable and fair government of condominium projects . . . .\u201d Id. at 130, 459 S.E.2d at 479 (emphasis added).\nMoreover, despite the majority\u2019s reliance on Dunes South Homeowners Assn. for the proposition that \u00a7 47A-12 is \u201cdesigned to protect unit owners from shouldering a disproportionate share of the maintenance expenses for common areas,\u201d 341 N.C. at 130, 459 S.E.2d at 479-80 (emphasis added), that is precisely the result dictated by the majority\u2019s holding. Because the majority affirms the trial court\u2019s dismissal of Starboard\u2019s foreclosure action against respondents, all the other condominium unit owners will necessarily be forced to \u201cshoulder[]\u201d the cost of respondents unpaid assessment. This makes no sense and clearly conflicts with the legislative intent behind \u00a7 47A-12. Consequently, I would hold that the trial court erred in concluding that the challenged assessment was unlawful, reverse the trial court\u2019s order dismissing the foreclosure action, and remand the case for further proceedings in accordance with N.C. Gen. Stat. \u00a7 45-21.16.\nFurthermore, in simply concluding that the assessment was \u201cunlawful\u201d under the Unit Ownership Act and Starboard\u2019s Declaration, the majority fails to address Starboard\u2019s independent argument that the trial court erred in determining that Starboard could not assess the units located in Building 33 \u2014 including respondents\u2019 unit \u2014 for the renovations done to that building \u201cdespite the fact that Respondents and other owner[s] of units located in Building 33 requested such renovations.\u201d This Court has held that assessments may be imposed under an implied contract theory where the governing owners\u2019 association declaration does not provide for the assessments. See Miles v. Carolina Forest Ass\u2019n, 141 N.C. App. 707, 714, 541 S.E.2d 739, 742 (2001) (holding invalid extension of declaration which authorized assessments against owners in subdivision, but remanding case for \u201ctrial court to address whether all of the plaintiffs have impliedly agreed to pay for maintenance, upkeep and operation of the roads, common areas and recreational facilities within the subdivision, and if so, in what amount\u201d). Generally, \u201c \u2018[a]n implied in law contract will... lie wherever one man has been enriched or his estate enhanced at another\u2019s expense under circumstances that, in equity and good conscience, call for an accounting by the wrongdoer.\u2019 \u201d Id. at 713, 541 S.E.2d at 742 (quoting Ellis Jones, Inc. v. Western Waterproofing Co., 66 N.C. App. 641, 646, 312 S.E.2d 215, 218 (1984)). Here, however, the trial court simply concluded that because the Declaration did not authorize the assessment based on the renovations of Building 33, Starboard could not assess respondents. As Starboard argued at trial in opposition to respondents\u2019 motion for involuntary dismissal, there is evidence in the record that respondents \u2014 as well as other Building 33 owners \u2014 made a request to Starboard that their building be renovated and that Starboard resultantly incurred the cost of performing the requested renovations. Under Miles, there is an issue as to whether a contract implied in law existed between Starboard and respondents for the renovation of Building 33. As the trial court did not address this issue in its order, believing that the Declaration did not authorize the assessment, I would direct the trial court to make findings of fact and conclusions of law on this issue on remand.", "type": "concurring-in-part-and-dissenting-in-part", "author": "HUNTER, Robert C., Judge," } ], "attorneys": [ "Sellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Michelle Price Massingale, for petitioner-appellant.", "Kenneth T. Davies, for respondent-appellees." ], "corrections": "", "head_matter": "IN THE MATTER OF THE PROPOSED FORECLOSURE OF CLAIM OF LIEN FILED AGAINST JEFFREY J. JOHNSON, DONNA N. JOHNSON, GARY PROFFIT and JO PROFFIT By STARBOARD ASSOCIATION, INC., DATED APRIL 30, 2008 RECORDED IN DOCKET No. 08-M-676 IN THE OFFICE OF THE CLERK OF SUPERIOR COURT FOR BRUNSWICK COUNTY\nNo. COA COA10-703\n(Filed 21 June 2011)\n1. Liens\u2014 condominium assessment \u2014 calculation of unit share\nThe trial court erred by dismissing a foreclosure of claim of lien for unpaid condominium assessments where respondents contended that the assessment was not computed properly. Petitioner had the authority to assess the cost of windows and doors for a building solely against the unit owners in that building, but separate findings and conclusions should have been made for the portions of the renovations that were for the common areas and facilities.\n2. Attorney Fees\u2014 after appeal \u2014 jurisdiction\nThe trial court lacked jurisdiction under N.C.G.S. \u00a7 1-294 to enter an award of attorney fees where petitioner had already appealed an order dismissing, the underlying action. The trial court\u2019s deferral of the issue at the time the dismissal order was entered did not create jurisdiction.\nJudge HUNTER concurring in part and dissenting in part.\nAppeal by petitioner from orders entered 11 December 2009 and 21 May 2010 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 1 December 2010.\nSellers, Hinshaw, Ayers, Dortch & Lyons, P.A., by Michelle Price Massingale, for petitioner-appellant.\nKenneth T. Davies, for respondent-appellees." }, "file_name": "0535-01", "first_page_order": 545, "last_page_order": 561 }