{ "id": 4033632, "name": "ROBERT C. RUSSELL, JR., as Trustee for the ROBERT CLINTON RUSSELL, JR. REVOCABLE TRUST u/a/d March 14, 2003, and PAMELA JEAN FORTNER-DENHAM, as Trustee for the PAMELA JEAN FORTNER-DENHAM REVOCABLE TRUST u/a/d March 14, 2003, and ROBERT C. RUSSELL, JR., Individually, Plaintiffs v. ALEXANDER M. DONALDSON and wife, GEORGIA C. DONALDSON; DANIEL M. HOFFMAN and wife, CHERYL E. HOFFMAN; R. FERMAN WARDELL and wife, JOANA G. WARDELL; PHILLIP H. PEARCE and wife, ANN M. PEARCE; THOMAS T. SWAIN, JR. and wife, JUDITH H. SWAIN; and HUGHES WILSON GROGAN and STEVEN GRAY GROGAN, Trustees of the JOHN GRAY GROGAN FAMILY TRUST, established April 28, 2003, and THE FOREST AT BLOWING ROCK PROPERTY OWNERS ASSOCIATION, INC., Defendants", "name_abbreviation": "Russell v. Donaldson", "decision_date": "2012-09-04", "docket_number": "No. COA12-183", "first_page": "702", "last_page": "707", "citations": [ { "type": "official", "cite": "222 N.C. App. 702" } ], "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": "611 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632676 ], "year": 2005, "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/se2d/611/0463-01" ] }, { "cite": "2012 WL 1071634", "category": "reporters:specialty_west", "reporter": "WL", "year": 2012, "opinion_index": 0 }, { "cite": "952 A.2d 218", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8180782 ], "year": 2008, "pin_cites": [ { "page": "222" } ], "opinion_index": 0, "case_paths": [ "/a2d/952/0218-01" ] }, { "cite": "937 P.2d 1019", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 963017 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "1021" }, { "page": "1023" } ], "opinion_index": 0, "case_paths": [ "/or/325/0358-01" ] }, { "cite": "103 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520866 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/103/0364-01" ] }, { "cite": "268 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "300 N.C. 660", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564340 ], "year": 1980, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0660-01" ] }, { "cite": "424 S.E.2d 660", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "662", "parenthetical": "citation and quotation marks omitted" }, { "page": "682" }, { "page": "662", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "108 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525358 ], "year": 1993, "pin_cites": [ { "page": "681", "parenthetical": "citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0679-01" ] }, { "cite": "683 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "713" } ], "opinion_index": 0 }, { "cite": "198 N.C. App. 472", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4168794 ], "year": 2009, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/198/0472-01" ] }, { "cite": "274 S.E.2d 174", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "179" }, { "page": "179" }, { "page": "179", "parenthetical": "citations omitted" }, { "page": "170" }, { "page": "181" } ], "opinion_index": 0 }, { "cite": "302 N.C. 64", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563796 ], "weight": 5, "year": 1981, "pin_cites": [ { "page": "70" }, { "page": "71" }, { "page": "71" }, { "page": "71" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0064-01" ] }, { "cite": "170 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9004620 ], "year": 2005, "pin_cites": [ { "page": "155" } ], "opinion_index": 0, "case_paths": [ "/nc-app/170/0151-01" ] }, { "cite": "684 S.E.2d 709", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "717" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 600, "char_count": 11915, "ocr_confidence": 0.727, "pagerank": { "raw": 8.715099962610433e-08, "percentile": 0.49355773251645174 }, "sha256": "0447196ded51be6e11cc1bcdf0180370906a268e213787ada7eace5ceb238121", "simhash": "1:ef7b5e68209c8760", "word_count": 1888 }, "last_updated": "2023-07-14T20:23:21.020165+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and ERVIN concur." ], "parties": [ "ROBERT C. RUSSELL, JR., as Trustee for the ROBERT CLINTON RUSSELL, JR. REVOCABLE TRUST u/a/d March 14, 2003, and PAMELA JEAN FORTNER-DENHAM, as Trustee for the PAMELA JEAN FORTNER-DENHAM REVOCABLE TRUST u/a/d March 14, 2003, and ROBERT C. RUSSELL, JR., Individually, Plaintiffs v. ALEXANDER M. DONALDSON and wife, GEORGIA C. DONALDSON; DANIEL M. HOFFMAN and wife, CHERYL E. HOFFMAN; R. FERMAN WARDELL and wife, JOANA G. WARDELL; PHILLIP H. PEARCE and wife, ANN M. PEARCE; THOMAS T. SWAIN, JR. and wife, JUDITH H. SWAIN; and HUGHES WILSON GROGAN and STEVEN GRAY GROGAN, Trustees of the JOHN GRAY GROGAN FAMILY TRUST, established April 28, 2003, and THE FOREST AT BLOWING ROCK PROPERTY OWNERS ASSOCIATION, INC., Defendants" ], "opinions": [ { "text": "STEELMAN, Judge. '\nThe provisions of the restrictive covenants prohibiting the use of real property for commercial or business purposes do not prohibit short term vacation rentals. The trial court properly granted summary judgment in favor of defendants.\nI. Factual and Procedural History\nPlaintiffs and the defendants, other than The Forest at Blowing Rock Property Owners Association, Inc., (POA) all own real property in The Forest at Blowing Rock, a residential development in Caldwell County, which is subject to restrictive covenants.\nItem 1 of the restrictive covenants states: \u201cAll lots shall be used for one family residential purposes only and no duplexes or apartment houses shall be constructed or placed on any lot\u201d. On 2 November 2010, plaintiffs filed a complaint against defendants Wardell, Pearce, Swain, and Grogan, who each own a 1/4 undivided interest in the piece of real property known as Lot 40 of the Forest at Blowing Rock. Plaintiffs alleged that defendants Wardell, Pearce, Swain and Grogan are not one family and are in violation of the restrictive covenants. Similar allegations were made against defendants Donaldson and Hoffman.\nItem 5 of the restrictive covenants states \u201cNo lots shall be used for business or commercial purposes[.]\u201d Defendants Donaldson are the owners of Lot 10 of the Forest at Blowing Rock and defendants Hoffman are the owners of Lots 15 and 18. All three lots are encumbered by the restrictive covenants. Defendants Donaldson and Hoffman have entered into short term rental arrangements of their residences when they are not using them. Plaintiffs\u2019 complaint alleged that the short term rental activity by the Hoffmans and Donaldsons violated the restrictive covenants. On 20 January 2011, defendants Donaldson filed an answer and counterclaim seeking declaratory judgment interpreting the restrictive covenants to permit rental of the property for residential purposes and damages for trespass against plaintiffs. On 19 January 2011, defendants Hoffman filed an answer and a counterclaim for declaratory judgment.\nPOA has the duty to enforce the restrictive covenants. Plaintiffs\u2019 complaint alleged that POA was not enforcing the restrictive covenants and sought monetary damages. On 10 December 2010 POA answered and moved to dismiss.\nOn 15 August 2011, plaintiffs voluntarily dismissed their damages claim against POA. On 30 August 2011, POA moved for summary judgment. On 5 October 2011 defendants Wardell, Swain, Pearce and Grogan moved for summary judgment. On 17 October 2011, plaintiffs moved for summary judgment against all defendants. On 17 October 2011, defendants Hoffman and Donaldson filed a motion for summary judgment. On 24 October 2011, defendants Donaldson dismissed their counterclaim for trespass. The trial court entered summary judgment in favor of all defendants on 4 November 2011.\nPlaintiffs appeal.\nII. Motion for Summary Judgment\nA. Standard of Review\nOur standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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. When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party. If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial.\nMetcalf v. Black Dog Realty, LLC, 200 N.C. App.\n619,629,684 S.E.2d 709, 717 (2009).\nB. Analysis\nAppellees have used the residences situated on their real property as short-term vacation rentals. The trial court determined that the restrictive covenants for The Forest at Blowing Rock do not preclude vacation rentals under the provision that \u201cno lots shall be used for commercial or business purposes\u201d.\nWe first review the principles that guide our analysis of restrictive covenants. \u201c[Jjudicial enforcement of a restrictive covenant is appropriate at the summary judgment stage unless a material issue of fact exists as to the validity of the contract, the effect of the covenant on the unimpaired enjoyment of the estate, or the existence of a provision that is contrary to the public interest.\u201d Page v. Bald Head Ass\u2019n, 170 N.C. App. 151, 155, 611 S.E.2d 463, 466 (2005).\n\u201cWhile the intentions of the parties to restrictive covenants ordinarily control the construction of the covenants, such covenants are not favored by the law, and they will be strictly construed to the end that all ambiguities will be resolved in favor of the unrestrained use of land.\u201d Hobby & Son v. Family Homes, 302 N.C. 64, 70, 274 S.E.2d 174, 179 (1981). \u201cThe rule of strict construction is grounded in sound consideration for public policy: It is in the best interests of society that the free and unrestricted use and enjoyment of land be encouraged to its fullest extent.\u201d Hobby & Son, 302 N.C. at 71, 274 S.E.2d at 179.\n\u201cThe law looks with disfavor upon covenants restricting the free use of property. As a consequence, the law declares that nothing can be read into a restrictive covenant enlarging its meaning beyond what its language plainly and unmistakably imports.\u201d Wein II, LLC v. Porter, 198 N.C. App. 472, 480, 683 S.E.2d 707, 713 (2009).\n\u201cSound judicial construction of restrictive covenants demands that if the intentions of the parties are to be followed, each part of the covenant must be given effect according to the natural meaning of the words, provided that the meanings of the relevant terms have not been modified by the parties to the undertaking.\u201d J.T. Hobby & Son, 302 N.C. at 71, 274 S.E.2d at 179 (citations omitted). \u201cIn interpreting ambiguous terms in restrictive covenants, the intentions of the parties at the time the covenants were executed ordinarily control, and evidence of the situation of the parties and the circumstances surrounding the transaction is admissible to determine intent.\u201d Angel v. Truitt, 108 N.C. App. 679, 681, 424 S.E.2d 660, 662 (1993) (citation and quotation marks omitted). \u201cIntent is . . . properly discovered from the language of the document itself, the circumstances attending the execution of the document, and the situation of the parties at the time of execution.\u201d Id. at 682, 424 S.E. 2d at 662 (citation omitted).\u201d\nSanford v. Williams, _ N.C. App. _ , _, _ S.E.2d __(2012).\nThe covenant at issue states, \u201cNo lots shall be used for business or commercial purposes[.]\u201d We must determine if defendants\u2019 rental activity qualifies as a business or commercial purpose in violation of the covenant. We look to the natural meaning of \u201cbusiness or commercial purposes\u201d Hobby & Son, 302 N.C. at 71, 274 S.E.2d at 170. In the instant case, the restrictive covenant and the surrounding context fail to define \u201cbusiness or commercial purpose.\u201d Plaintiff suggests looking at other North Carolina statutes to provide definitions of ambiguous words in the covenant. Plaintiff does not cite any authority in support of this proposition. Rather, when covenants are ambiguous, as in the instant case, all ambiguities will be resolved in favor of the unrestrained use of the land. Hobby & Son, 302 N.C. at 74, 274 S.E.2d at 181.\ni. North Carolina Case Law\nOur prior cases in North Carolina have dealt with \u201caffirmative\u201d covenants requiring the use of land for residential purposes. Hawthorne v Realty Syndicate, Inc., 300 N.C. 660, 662, 268 S.E.2d 494, 496 (1980). Plaintiff cites us to Walter v. Carignan, 103 N.C. App. 364 (1991). However, the instant case deals with a \u201cnegative\u201d covenant, prohibiting the use of land for business or commercial purposes. We hold that the cases cited by plaintiff are not sufficiently similar to the instant case to be binding authority. In the absence of persuasive and binding North Carolina cases, we examine the law of other states.\nii. Negative Covenant Cases from other Jurisdictions\nIn Yogman v. Parrott, 937 P.2d 1019, 1021 (Or. 1997), the Supreme Court of Oregon held that a restrictive covenant prohibiting the use of property for commercial enterprise was ambiguous. It held that the owners of the property could use the property for short term rental because the use was \u201cnot plainly within the provisions of the covenant.\u201d Yogman, 937 P.2d at 1023.\nSimilarly, in Silsby v. Belch, 952 A.2d 218, 222 (Me. 2008) the Supreme Judicial Court of Maine held that the owner\u2019s rental use of their property did not violate the covenant\u2019s prohibition against use \u201cfor any commercial purposes\u201d because the covenant did not expressly forbid the activity.\nFinally, Slaby v. Mountain River Estates Residential Assoc., Inc.,_So.3d__,_, 2012 WL 1071634, (Ala. 2012) held that a covenant prohibiting commercial usage of property did not prohibit the rental of the property on a short term basis for residential purposes. \u201cNeither [the] financial benefit nor the advertisement of the property or the remittance of a lodging tax transforms the nature of the use of the property from residential to commercial.\u201d Slaby,_ SO.3d at_.\nEach of these cases deals with negative covenants and fact patterns that are nearly identical to the covenant and facts in the instant case. We find these authorities to be persuasive and hold that the short term rental of the properties does not violate the restrictive covenants.\nIII. Conclusion\nUnder North Carolina case law, restrictions upon real property are not favored. Ambiguities in restrictive covenants will be resolved in favor of the unrestricted use of the land. A negative covenant, prohibiting business and commercial uses of the property, does not bar short-term residential vacation rentals. The trial court did not err in granting defendants\u2019 motion for summary judgment and in denying plaintiffs\u2019 motion for summary judgment.\nPlaintiffs\u2019 brief makes no argument concerning the dismissal of its claim against defendants based upon Item 1 of the restrictions. Pursuant to Rule 28 (b)(6) of the Rules of Appellate Procedure, this argument is deemed abandoned.\nAFFIRMED.\nJudges McGEE and ERVIN concur.", "type": "majority", "author": "STEELMAN, Judge. '" } ], "attorneys": [ "Miller & Johnson, PLLC, by Nathan A. Miller for plaintiff-appellants.", "Wyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and Tobias S. Hampson for defendant-appellees Alexander Donaldson and wife, Georgia C. Donaldson, and Daniel M. Hoffman.", "Patrick, Harper & Dixon, LLP, by David W. Hood for defendantappellee The Forest at Blowing Rock Property Owners Association, Inc." ], "corrections": "", "head_matter": "ROBERT C. RUSSELL, JR., as Trustee for the ROBERT CLINTON RUSSELL, JR. REVOCABLE TRUST u/a/d March 14, 2003, and PAMELA JEAN FORTNER-DENHAM, as Trustee for the PAMELA JEAN FORTNER-DENHAM REVOCABLE TRUST u/a/d March 14, 2003, and ROBERT C. RUSSELL, JR., Individually, Plaintiffs v. ALEXANDER M. DONALDSON and wife, GEORGIA C. DONALDSON; DANIEL M. HOFFMAN and wife, CHERYL E. HOFFMAN; R. FERMAN WARDELL and wife, JOANA G. WARDELL; PHILLIP H. PEARCE and wife, ANN M. PEARCE; THOMAS T. SWAIN, JR. and wife, JUDITH H. SWAIN; and HUGHES WILSON GROGAN and STEVEN GRAY GROGAN, Trustees of the JOHN GRAY GROGAN FAMILY TRUST, established April 28, 2003, and THE FOREST AT BLOWING ROCK PROPERTY OWNERS ASSOCIATION, INC., Defendants\nNo. COA12-183\n(Filed 4 September 2012)\nDeeds \u2014 restrictive covenants \u2014 commercial or business purposes \u2014 short term vacation rentals not prohibited\nThe trial court did not err in a case involving the interpretation of restrictive covenants by granting defendants\u2019 motion for summary judgment and denying plaintiffs\u2019 motion for summary judgment. The provisions of the restrictive covenants prohibiting the use of real property for commercial or business purposes did not prohibit short term vacation rentals.\nAppeal by plaintiff from judgment entered 4 November 2011 by Judge F. Lane Williamson in Caldwell County Superior Court. Heard in the Court of Appeals 14 August 2012.\nMiller & Johnson, PLLC, by Nathan A. Miller for plaintiff-appellants.\nWyrick Robbins Yates & Ponton, LLP, by K. Edward Greene and Tobias S. Hampson for defendant-appellees Alexander Donaldson and wife, Georgia C. Donaldson, and Daniel M. Hoffman.\nPatrick, Harper & Dixon, LLP, by David W. Hood for defendantappellee The Forest at Blowing Rock Property Owners Association, Inc." }, "file_name": "0702-01", "first_page_order": 712, "last_page_order": 717 }