An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA14-476
NORTH CAROLINA COURT OF APPEALS
Filed: 31 December 2014
THE CURRITUCK CLUB PROPERTY
OWNERS ASSOCIATION, INC.,
Plaintiff,
v. Currituck County
No. 11-CVS-118
MANCUSO DEVELOPMENT, INC.,
Defendant.
Appeal by plaintiff from order entered 4 March 2013 by
Judge Walter H. Godwin, Jr. and judgment and orders entered 24
May 2013 and 26 September 2013 by Judge Jerry R. Tillett in
Currituck County Superior Court. Heard in the Court of Appeals
7 October 2014.
Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis,
for plaintiff-appellant.
Gregory E. Wills, P.C., by Gregory E. Wills, for defendant-
appellee.
Jordan Price Wall Gray Jones & Carlton, by Henry W. Jones
and J. Matthew Waters, for amicus curiae Community
Associations Institute-North Carolina Chapter, Inc.
DAVIS, Judge.
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The Currituck Club Property Owners Association, Inc.
(“TCCPOA”) appeals from (1) the denial of its motion for summary
judgment; (2) the trial court’s entry of judgment on the jury’s
verdict in favor of Defendant Mancuso Development, Inc. (“MDI”);
(3) the denial of its motion for a new trial; and (4) the 26
September 2013 order awarding MDI costs and attorneys’ fees.
After careful review, we affirm.
Factual Background
TCCPOA is the homeowners’ association for The Currituck
Club, a residential and golfing community located in the Outer
Banks in Currituck County, North Carolina. The Currituck Club
community was originally owned and developed by the Currituck
Associates–Residential Partnership (“CARP”) and is comprised of
various sub-developments, including The Hammocks, a 70-lot sub-
development; Magnolia Bay, a 70-lot sub-development; Windswept
Ridge, a sub-development of 30 condominium units; and The
Cottages, a 23-lot sub-development.
Prior to selling any lots within The Currituck Club, CARP
subjected the property to a Declaration of Covenants, Conditions
and Restrictions (“the Declaration”). Article 8 of the
Declaration provides that each member — defined as a record
owner of a “lot” or “dwelling unit” within The Currituck Club —
is responsible for paying annual assessments to TCCPOA. The
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Declaration defines a “lot” as “any unimproved parcel within The
Properties which is intended for use as a site for a single
family detached dwelling or as a site for a patio home or zero
lot line home, as shown upon any recorded subdivision map of any
part of The Properties, with the exception of Common Properties
or Limited Common Properties.” Pursuant to the Declaration,
TCCPOA is responsible for managing The Currituck Club and
enforcing its covenants, including the collection of assessments
from property owners.
On 8 November 2005, MDI entered into a written Agreement of
Purchase and Sale (“the Purchase Agreement”) with CARP to
acquire 6.12 acres of property for the development of The
Cottages, a new sub-development within The Currituck Club. The
deed conveying the property stated that the property was subject
to the restrictive covenants and reservations of record.
On 19 September 2006, the final subdivision plat for The
Cottages, reflecting 23 lots, was recorded in the office of the
Currituck County Register of Deeds. On 21 September 2006, the
“Supplemental Declaration of Covenants, Conditions and
Restrictions[:] The Currituck Club for The Cottages” (“the
Supplemental Declaration”) was recorded with the Currituck
County Register of Deeds. The Supplemental Declaration stated
that The Cottages were subject to the Declaration and made
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exceptions only for “architectural control” and “restrictions on
use” provisions. The Supplemental Declaration did not contain a
provision exempting The Cottages from the obligation to pay
assessments pursuant to the Declaration.
By letter dated 30 May 2007, Kelly Shields (“Shields”), the
management agent for TCCPOA from 2003 to 2009, informed Bernie
Mancuso (“Mancuso”), the president of MDI, that MDI owed
assessments to TCCPOA and attached invoices for the homeowners’
association assessments regarding the 16 unimproved lots MDI
currently owned as of that date.1 Upon receiving the letter and
invoices from Shields, Mancuso telephoned her and informed her
that it was his understanding that MDI was not obligated to pay
assessments. Mancuso referred to the Purchase Agreement with
CARP, specifically referencing Section 5, which provides as
follows:
Each initial third party purchaser of a Lot
or Unit will be required to become a member
of the Currituck Club Property Owners
Association subject to all of the rights and
responsibilities appurtenant thereto.2
1
As of 30 May 2007, MDI had sold 7 of the 23 lots and the new
owners of those lots were assessed directly.
2
Shields testified at trial that with regard to other sub-
developments in The Currituck Club “it was the practice that if
that sub-developer owned the lot [and] had not yet built a house
or sold it to a third party, that sub-developer did not pay
assessments to The Currituck Club Property Owners Association.
But at such time the sub-developer sold to a third party owner,
that owner was responsible for starting to pay the assessments.”
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After their conversation, Shields informed Mike Ward (“Ward”),
the then president of TCCPOA, of Mancuso’s objection to paying
the invoiced assessments. Ward arranged a meeting with Mancuso
and Mickey Hayes (“Hayes”), the manager and attorney in fact for
CARP, to resolve the matter.
At trial, Shields testified that following this meeting,
Ward told her that Mancuso did not need to pay the assessments
for the unimproved lots “[b]ut instead we were instructed to
invoice CARP for [16 lots in] the Windswept Ridge [sub-
development] that hadn’t previously been invoiced.” She also
testified that she did not believe that CARP was required to pay
assessments on these Windswept Ridge lots. Hayes stated in his
deposition that CARP understood that it “didn’t actually owe
assessments on those lots” because the lots had not yet been
recorded at the Currituck County Register of Deeds and were
merely illustrated on a sketch plan.
An email dated 23 October 2007 from Shields to Nicole
Etheridge, the bookkeeper responsible for preparing invoices,
was introduced at trial and stated:
Ok, I’ve had a moment to sort this out . . .
Go ahead and void any charges to Bernie
Mancuso on any cottage lot that used to be
owned by him or that still is owned by him.
Only charge the pro-rated fee to the owner
that he sold to. We will NOT be charging
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Bernie any 2008 dues, either.
Then go ahead and invoice CARP for the full
year 2007 unimproved fee on lots 430-445 (16
lots). These are NOT the Historic Shooting
Club Lots — he already paid for those.
These are the other lots that were recently
platted. Print out the 16 invoices and give
to me, I’ll send over to Mickey with a cover
letter. We WILL bill CARP for all of their
lots also in 2008.
This can be done any time before Oct 31, so
that it will show on the Oct financial
reports.
Thanks,
KS
The 2007 invoices to MDI regarding the assessments on the 16
lots of The Cottages were then voided, and CARP was invoiced for
lots 430-445, the 16 lots in the Windswept Ridge sub-
development. Evidence in the record reflects that CARP has paid
assessments on lots 430-445 annually from 2007 to the date of
trial in 2013.
In 2010, Barney Ottinger (“Ottinger”), who was serving as
TCCPOA’s president at that time, expressed concern about the
operating funds of TCCPOA and sought to determine whether TCCPOA
was collecting all of the assessments that it was due. Ottinger
examined the Declaration, bylaws, and Supplemental Declaration
and was unable to find any provisions exempting MDI from paying
assessments to TCCPOA. In a letter dated 4 March 2010, counsel
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for TCCPOA wrote Mancuso a letter asking if there was “any legal
basis by which Mancuso Development, Inc. contends the Cottage
lots are not subject to assessment by TCCPOA.” TCCPOA then
invoiced MDI for assessments on both The Cottages lots that were
currently owned by MDI and for those lots MDI no longer owned
but that had accrued assessments during the period of time
before the dates of sale. When these invoices went unpaid,
TCCPOA filed a claim of lien against the lots on 11 August 2010.
On 10 March 2011, TCCPOA instituted the present action by
filing a verified complaint against MDI in Currituck County
Superior Court (1) to collect the unpaid assessments on all of
The Cottages lots in the total amount of $121,977.84; and (2) to
enforce its claim of lien on The Cottages lots that MDI still
owned. On 13 May 2011, MDI filed an answer and third-party
complaint against CARP. The answer asserted various defenses,
including accord and satisfaction, and the third-party complaint
contained an assertion that “[a] key provision within all
preliminary discussions was the fact that CARP would ensure that
MDI would not be a member of the TCCPOA and that MDI would not
be obligated to pay HOA fees on its unsold lots. Only third-
party purchasers would become TCCPOA members and be obligated to
pay HOA fees.” MDI also claimed that Section 5 of the Purchase
Agreement coupled with the subsequent dealings between MDI and
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CARP reflected a recognition by CARP that MDI was not obligated
to pay assessments. In its third-party claim, MDI contended
“that CARP is obligated to indemnify MDI in exactly the same
amount that MDI is ultimately ordered to pay TCCPOA.”
CARP moved to dismiss the third-party complaint against it
pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil
Procedure on 9 June 2011, and on 29 July 2011, the Honorable
Richard L. Doughton entered an order dismissing the third-party
complaint. MDI appealed from the order but then moved to
withdraw the appeal, explaining that “since the filing of the
Appellee’s brief, Appellant has received documents and
discovered facts through discovery occurring at the trial level
tending to show that there is little or no likelihood that any
additional monies are due to the original Plaintiffs herein
stemming from the claims made in the original complaint and,
therefore, very little likelihood that Appellant’s claims for
indemnification will need to be adjudicated.” This Court
dismissed the appeal by order entered 10 July 2012.
On 4 June 2012, MDI filed a motion to amend its answer so
as to add the following:
1. That any and all payments made by [CARP]
for lots 430-445 be deemed an offset for any
amounts claimed due from MDI to TCCPOA for
the period between 2007 and 2012.
2. That all payments by CARP for said lots
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430-445 in excess of the total number of
recorded lots within the subdivision as a
whole, at any point in time after 2007, be
deemed an offset against any amounts claimed
due by TCCPOA against MDI for the period
between the recording of the Plat for the
Cottages Sub-development on September 21,
2006 and January 1, 2007.
3. That pursuant to N.C.G.S. 47F-3-120 that
the Defendant herein be allowed to recover
reasonable attorneys fees and costs incurred
in defending this action in the event the
fact finder determines that no amounts are
due from MDI to TCCPOA as set forth in the
affirmative defenses plead herein.
4. That Pursuant to N.C.G.S. 47F-1-103(4),
and N.C.G.S. 47F-3-107(a), the Plaintiff
herein be deemed to be without authority to
make common area assessments against the
Defendant as claimed herein as none of the
common elements within the subdivision where
[sic] leased or titled in the POA at all
times relevant hereto.
The trial court granted MDI’s motion to amend on 18 July 2012.
On 23 October 2012, TCCPOA filed a motion for summary
judgment pursuant to Rule 56 of the North Carolina Rules of
Civil Procedure. MDI filed a cross-motion for summary judgment
on 26 October 2012. The parties’ motions came on for hearing
before the Honorable Walter H. Godwin, Jr. on 4 February 2013.
Judge Godwin denied both parties’ motions for summary judgment
by order entered 4 March 2013.
A jury trial was held in Currituck County Superior Court
before the Honorable Jerry R. Tillett beginning on 6 May 2013.
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Shortly before the charge conference, the parties stipulated
that there was an obligation to pay assessments on The Cottage
lots under the Declaration.3 The stipulation was entered outside
the presence of the jury, and the jury was not informed of the
stipulation.
The jury returned a verdict in favor of MDI, determining
that it did not owe TCCPOA any money. Accordingly, the trial
court entered a judgment on 24 May 2013 dismissing TCCPOA’s
complaint with prejudice and ordering the Clerk of Court to
cancel the claim of lien on the MDI lots.
On 3 June 2013, TCCPOA filed a motion for a new trial,
arguing that “[t]he jury verdict makes no rational sense” and
that “[t]he jury was either confused or disregarded the Court’s
instructions.” The trial court denied TCCPOA’s motion by order
entered 26 September 2013.
On 28 June 2013, MDI filed a motion for attorneys’ fees and
costs pursuant to N.C. Gen. Stat. § 47F-3-116. On 26 September
2013, the trial court entered an order directing TCCPOA to pay
attorneys’ fees in the amount of $120,247.50 and $3,308.00 in
costs associated with MDI’s defense of TCCPOA’s suit. TCCPOA
gave notice of appeal from the denial of summary judgment, the
3
It likewise appears from the trial transcript that counsel for
both parties agreed that no obligation existed under the
Declaration to pay assessments on “lots that had not yet been
recorded,” which would encompass lots 430-445.
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final judgment of the trial court, the denial of its motion for
a new trial, and the order awarding attorneys’ fees and costs to
MDI.
Analysis
I. Denial of Motion for Summary Judgment
TCCPOA first argues that the trial court erred by denying
its motion for summary judgment. However, it is well
established that “[t]his Court cannot consider an appeal from
the denial of a summary judgment motion now that a final
judgment on the merits has been made.” Austin v. Bald II,
L.L.C., 189 N.C. App. 338, 341, 658 S.E.2d 1, 3, disc. review
denied, 362 N.C 469, 665 S.E.2d 737 (2008). We have explained
that
[t]o grant a review of the denial of the
summary judgment motion after a final
judgment on the merits . . . would mean that
a party who prevailed at trial after a
complete presentation of evidence by both
sides with cross-examination could be
deprived of a favorable verdict. This would
allow a verdict reached after the
presentation of all the evidence to be
overcome by a limited forecast of the
evidence. In order to avoid such an
anomalous result, we hold that the denial of
a motion for summary judgment is not
reviewable during appeal from a final
judgment rendered in a trial on the merits.
Id. at 341, 658 S.E.2d at 3-4 (citation omitted). Consequently,
we decline to address TCCPOA’s argument regarding the trial
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court’s denial of its summary judgment motion as our prior case
law prohibits us from doing so. See Harris v. Walden, 314 N.C.
284, 286, 333 S.E.2d 254, 256 (1985) (“[T]he denial of a motion
for summary judgment is not reviewable during appeal from a
final judgment rendered in a trial on the merits.”).
II. Admission of Parol Evidence at Trial
TCCPOA next argues that the trial court erred by admitting
certain parol evidence concerning Section 5 of the Purchase
Agreement between MDI and CARP. TCCPOA contends that the
admission of this evidence was prejudicial error, requiring a
new trial.
The parol evidence rule is not a rule of
evidence but of substantive law. . . . It
prohibits the consideration of evidence as
to anything which happened prior to or
simultaneously with the making of a contract
which would vary the terms of the agreement.
Generally, the parol evidence rule prohibits
the admission of evidence to contradict or
add to the terms of a clear and unambiguous
contract. Thus, it is assumed the parties
signed the instrument they intended to sign,
. . . and absent evidence or proof of mental
incapacity, mutual mistake of the parties,
undue influence, or fraud, . . . the court
does not err in refusing to allow parol
evidence.
Drake v. Hance, 195 N.C. App. 588, 591, 673 S.E.2d 411, 413
(2009) (citation and brackets omitted).
On 4 May 2013, TCCPOA filed a motion in limine to exclude
“any and all evidence, references to evidence, testimony or
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argument that Defendant (“MDI”) was and is exempt from paying
assessments to Plaintiff on the lots Defendant owns in The
Cottages section of The Currituck Club.” In this motion, TCCPOA
argued that in granting CARP’s Motion to Dismiss MDI’s Third-
Party Complaint, Judge Doughton “held the November 8, 2005
Agreement of Purchase and Sale was unambiguous, that it did not
say MDI was exempt from paying assessments on lots it owned in
The Cottages, and that evidence contending otherwise was
inadmissible based on the parol evidence rule.”
The trial court reserved ruling on TCCPOA’s motion in
limine and, during the trial, sustained TCCPOA’s objections to
the introduction of parol evidence that attempted to vary or
contradict the written terms of the Purchase Agreement or
explain the legal effect of the Purchase Agreement. The trial
court did, however, allow certain evidence to come in on the
subject of why CARP would voluntarily assume the responsibility
to pay assessments that MDI owed, including (1) Mancuso’s
testimony about the meeting between himself, Ward, and Hayes
after MDI was first invoiced for assessments; and (2) Hayes’
deposition testimony that “the whole reason we agreed to make
that payment was to . . . absolve MDI of the obligation to pay
those assessments.”
In determining that the admitted portions of Hayes’
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testimony did not violate the parol evidence rule, the trial
court reasoned that
[t]he Parol Evidence Rule applies to
transactions involving a writing wherein the
parties or persons, two [2] or more have
reduced a[n] . . . agreement to writing[,]
then the written terms, those specifically
dealt with were not allowed to be
contradicted or varied by oral or other
testimony.
. . . . The Court interprets the testimony
to be about a contract. The contract being
the agreement of purchase and sale dated
November 8th, 2005 and the witness purports
to testify about that contract and the
intent of adding Paragraph [5] in that
contract.
The witness’s testimony, the Court
determines does not purport to vary or
contradict the precise written provisions of
the paragraph. Therefore, on that basis and
that being the only basis before the Court,
the Court overrules the objection.
Indeed, contrary to TCCPOA’s argument on appeal, the
portions of Mancuso’s and Hayes’ testimony at issue did not — as
TCCPOA claims in its brief — “tell the jury that Section 5 of
the Agreement exempted MDI from the obligation to pay
assessments on The Cottage lots.” Instead, this evidence
described the history, relationship, and interactions between
CARP and MDI and attempted to demonstrate the motive CARP might
have had to pay assessments that MDI was, in fact, otherwise
responsible for paying.
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Accordingly, we hold that this evidence did not violate the
parol evidence rule because it did not attempt to alter or
dispute the legal effect of the terms of the Purchase Agreement.
See Ingersoll v. Smith, 184 N.C. App. 753, 755, 647 S.E.2d 141,
143 (2007) (“The parol evidence rule prohibits the admission of
parol evidence to vary, add to, or contradict the terms of an
integrated written agreement . . . .” (citation and internal
quotation marks omitted)). Therefore, TCCPOA’s argument on this
issue is overruled.
III. Denial of TCCPOA’s Motion for New Trial
TCCPOA next argues that the trial court erred by denying
its motion for a new trial. We disagree.
Our standard of review regarding the granting or denial of
a motion for a new trial is as follows:
Appellate review is strictly limited to the
determination of whether the record
affirmatively demonstrates a manifest abuse
of discretion by the judge. The trial
court’s discretion is practically unlimited.
A discretionary order pursuant to . . . Rule
59 for or against a new trial upon any
ground may be reversed on appeal only in
those exceptional cases where an abuse of
discretion is clearly shown. A manifest
abuse of discretion must be made to appear
from the record as a whole with the party
alleging the existence of an abuse bearing
that heavy burden of proof. An appellate
court should not disturb a discretionary
Rule 59 order unless it is reasonably
convinced by the cold record that the trial
judge’s ruling probably amounted to a
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substantial miscarriage of justice.
Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663
(1997) (citations, quotation marks, brackets, and emphasis
omitted).
The basis of TCCPOA’s motion requesting a new trial is that
the jury’s verdict “makes no rational sense” because MDI
stipulated that it was obligated to pay assessments on The
Cottage lots, and the jury never reached the issue as to whether
the evidence supported an accord and satisfaction. TCCPOA
contends that accord and satisfaction would have been the only
possible basis for its conclusion that MDI did not owe
assessments to TCCPOA. The verdict sheet returned by the jury
stated as follows:
ISSUE ONE
Does the Defendant owe the Plaintiff money
on account?
ANSWER: NO___
If your answer to this Issue is “yes,”
proceed to Issue Two. If your answer to
this Issue is “no,” stop and proceed no
further.
ISSUE TWO
Is the Defendant excused from the payment by
an accord and satisfaction?
ANSWER: _____
If your answer to this Issue is “yes,”
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proceed no further. If your answer to this
Issue is “no,” proceed to Issue Three.
ISSUE THREE
What amount, if any, does the Defendant owe
the Plaintiff on account?
ANSWER: $_____
As reflected on the verdict sheet, the jury instructions
first charged the jury with determining whether MDI “owed
[TCCPOA] money on account.” The trial court elaborated on this
issue by explaining to the jury as follows:
Now, on this issue, ladies and gentlemen,
the burden of proof is on the Plaintiff.
That means that the Plaintiff must prove to
you, by the greater weight of the evidence,
that the Defendant owes annual assessments
on The Cottage Lots for which the Plaintiff
has not [been] paid.
As to this issue on which the Plaintiff has
the burden of proof, if you find by the
greater weight of the evidence that the
Defendant owes money to the Plaintiff on
account for annual assessments, then it
would be your duty to answer that issue,
“yes” in favor of the Plaintiff.
(Emphasis added.) TCCPOA did not object to this portion of the
jury instruction. In fact, TCCPOA specifically requested that
this instruction — the pattern jury instruction for an action on
an unverified account — be given.
TCCPOA argues in its brief that the portion of the
instruction requesting the jury to determine whether TCCPOA had
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or had not been paid for the assessments MDI was obligated to
pay could not justify the jury’s ultimate determination that MDI
did not owe TCCPOA “money on account.” This is so, TCCPOA
argues, because the “payment by CARP” argument was not included
in the jury instructions and was not supported by the evidence
offered at trial. At oral argument in this Court, however,
counsel for TCCPOA clarified that TCCPOA’s argument on appeal
(1) is not that the jury’s finding could only have been legally
supportable if an express instruction on MDI’s “payment by CARP”
defense had been given; but rather that (2) there was no
rational evidence to support the jury’s finding that CARP paid
MDI’s assessment obligations.
However, as discussed above, the jury heard evidence that
(1) as soon as CARP began paying assessments on unrecorded lots
as to which it was not obligated to pay such assessments, MDI’s
invoices were voided by TCCPOA; and (2) “the whole reason [CARP]
agreed to make [these] payment[s] was . . . to absolve MDI of
the obligation to pay those assessments.” This evidence was
sufficient to support the jury’s conclusion that CARP paid
assessments on behalf of MDI such that MDI did not “owe[] annual
assessments on The Cottage Lots for which [TCCPOA] has not
[been] paid.” Therefore, we cannot conclude that the trial
court’s denial of TCCPOA’s motion for a new trial constituted an
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abuse of discretion.4
IV. Award of Costs and Attorneys’ Fees to MDI
TCCPOA’s final argument on appeal is that the trial court
erred by ordering TCCPOA to pay $120,247.50 in attorneys’ fees
and $3,308.00 in costs. TCCPOA contends that the trial court
erred in awarding any attorneys’ fees at all under N.C. Gen.
Stat. § 47F-3-116 or, in the alternative, that in the event we
conclude that an award of attorneys’ fees was appropriate, the
trial court should have apportioned the award to exclude fees
stemming from the litigation of (1) MDI’s third-party claim
against CARP; and (2) TCCPOA’s cause of action to recover on the
underlying assessments owed (rather than from action taken to
enforce the liens on MDI’s remaining lots).
N.C. Gen. Stat. § 47F-3-116 addresses the enforcement of
liens for sums due to a homeowners’ association. At the time
4
Amicus curiae Community Associations Institute-North Carolina
Chapter, Inc. contends that “[a]n unfavorable outcome in this
matter by this Court would negatively impact the significant
progress made by [homeowners’] associations to make collection
of assessments easier, particularly from developers and
builders.” Our decision in this case, however, does not stem
from any sort of legal determination that MDI was exempt from
paying assessments but rather from the jury’s factual
determination that evidence presented at trial showed CARP
assumed the obligation of paying assessments on MDI’s behalf.
Thus, we cannot agree that the outcome of this case opens “a
Pandora’s box of problems for Community Associations throughout
North Carolina” in the enforcement of assessments as amicus
curiae asserts.
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period relevant to this action, subpart (e) of N.C. Gen. Stat. §
47F-3-116 provided that a judgment in any action brought under
the statute “shall include costs and reasonable attorneys’ fees
for the prevailing party.” N.C. Gen. Stat. § 47F-3-116(e)
(2011).5 In contending that the trial court erred by awarding
any attorneys’ fees at all to MDI, TCCPOA relies on Willow Bend
Homeowners Ass’n, Inc. v. Robinson, 192 N.C. App. 405, 665
S.E.2d 570 (2008). In Willow Bend Homeowners Association, we
explained that the plaintiff homeowners’ association could not
recover attorneys’ fees under N.C. Gen. Stat. § 47F-3-116
because it had only sought to recover unpaid assessments from a
homeowner and had not brought an action seeking to foreclose on
a lien created by the unpaid assessments. Id. at 418, 665
S.E.2d at 578. Thus, we concluded that the plaintiff’s claim
did not arise under N.C. Gen. Stat. § 47F-3-116, and as such,
the plaintiff was not entitled to attorneys’ fees for claims
“brought under this section” (as that phrase is used in N.C.
Gen. Stat. § 47F-3-116). Id.
Here, however, TCCPOA clearly brought claims under N.C.
Gen. Stat. § 47F-3-116 as it sought to foreclose on MDI’s lots
5
The General Assembly subsequently amended N.C. Gen. Stat. §
47F-3-116, effective on 1 October 2013. In the current version
of the statute, the language requiring that attorneys’ fees and
costs be awarded to the prevailing party is contained in subpart
(g). See N.C. Gen. Stat. § 47F-3-116(g) (2013).
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based on the liens created by MDI’s unpaid assessments. Indeed,
TCCPOA’s complaint expressly references N.C. Gen. Stat. § 47F-3-
116 in its second claim for relief. Accordingly, based on its
status as the prevailing party in an action brought under N.C.
Gen. Stat. § 47F-3-116, MDI was entitled to an award of
attorneys’ fees.
TCCPOA next contends that the trial court should have
apportioned its award of attorneys’ fees to exclude fees that
did not directly stem from MDI’s defense of TCCPOA’s claim
seeking to foreclose on the liens placed on The Cottage lots.
In its order, the trial court stated that it was
unable to determine that all costs claimed,
including all attorney’s fees claimed were
not related to the defense of the
enforcement of the claim of lien against
real property. Alternatively, because of
the overlap of defenses, the court cannot
apportion the costs claimed, including the
attorney’s fees between the defense of the
enforcement of the claim of lien and the
defense of any of the other claims made by
[TCCPOA].
TCCPOA cites no legal authority in support of its
apportionment argument. Accordingly, we are unable to hold that
the trial court abused its discretion on this ground, especially
where the claims were all factually and legally intertwined.
See Whiteside Estates, Inc. v. Highlands Cove, L.L.C, 146 N.C.
App. 449, 467, 553 S.E.2d 431, 443 (2001) (explaining that where
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all claims “arise from the same nucleus of operative facts and
each claim was inextricably interwoven with the other claims,
apportionment of fees is unnecessary” (citation and quotation
marks omitted)), appeal dismissed and disc. review denied, 356
N.C. 315, 571 S.E.2d 219 (2002); see also Williams v. New Hope
Found., Inc., 192 N.C. App. 528, 530, 665 S.E.2d 586, 587 (2008)
(“[T]o overturn the trial judge’s determination of attorney’s
fees and costs, the [appellant] must show an abuse of
discretion.” (citation, quotation marks, and brackets omitted));
Beard v. WakeMed, ___ N.C. App. ___, ___, 753 S.E.2d 708, 712-13
(2014) (“The test for abuse of discretion is whether a decision
is manifestly unsupported by reason, or so arbitrary that it
could not have been the result of a reasoned decision. . . .
[T]he reviewing court sits only to insure that the decision
could, in light of the factual context in which it is made, be
the product of reason.”). As such, TCCPOA’s argument on this
issue is overruled.6
Finally, TCCPOA argues that the trial court abused its
discretion by taxing certain costs in MDI’s favor.
Specifically, TCCPOA argues that several of the expenses for
which costs were awarded are not authorized by N.C. Gen. Stat. §
6
We similarly reject TCCPOA’s contention that it was an abuse of
discretion for the trial court not to exclude from its award of
attorneys’ fees the fees incurred in connection with MDI’s
third-party claim against CARP.
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7A-305(d) and, therefore, are “not recoverable and were
improperly included in the costs assessed against TCCPOA.”
It is true that N.C. Gen. Stat. § 6-20 authorizes costs
“[i]n actions where allowance of costs is not otherwise provided
by the General Statutes” and limits the costs awarded to those
expenses enumerated in N.C. Gen. Stat. § 7A-305(d). However,
N.C. Gen. Stat. § 47F-3-116 constitutes a separate and
independent statutory authorization for an award of costs in
this factual context. Furthermore, unlike N.C. Gen. Stat. § 6-
20, § 47F-3-116 does not contain any corresponding limitations
as to costs that may be awarded thereunder.
Although the trial court’s order cites N.C. Gen. Stat. § 6-
20 as a basis for its award of costs, we will not find an abuse
of discretion where a separate statute — N.C. Gen. Stat. § 47F-
3-116 — allows for an award of costs and is devoid of the
limitations on a trial court’s authority that exist under § 6-
20. See Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779
(1989) (explaining that order or judgment “will not be disturbed
even though the trial court may not have assigned the correct
reason for the judgment entered” when it is sustainable on other
grounds). Moreover, we note that MDI’s motion requesting
attorneys’ fees and costs expressly cited N.C. Gen. Stat. § 47F-
3-116 as a basis for its motion. Accordingly, we conclude that
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the trial court did not err in its award of costs or attorneys’
fees.
Conclusion
For the reasons stated above, we affirm.
AFFIRMED.
Judges HUNTER, Robert C., and DILLON concur.
Report per Rule 30(e).