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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
BEAU RIVAGE HOMEOWNERS ASSOCIATION, Plaintiff, v. BILLY EARL,
L.L.C. and CAROLINA GREEN ESTATES, L.L.C., Defendants
Filed: 16 March 2004
1. Appeal and Error_judicial notice_ordinance not in appellate record
An appellate court is not permitted to take judicial notice of a county ordinance not in
the appellate record.
2. Pleadings_amendment denied_issues in pending action
The trial court did not abuse its discretion by denying plaintiff's motion to amend its
complaint where the issues were at the heart of a pending case. Parties should not be afforded
concurrent actions on the same legal arguments.
3. Injunctions_pleading_prayer for permanent relief_not sufficient
Language requesting a temporary restraining order and such other and further relief as
the plaintiff might be entitled was insufficient to allege a prayer for permanent relief.
Appeal by plaintiffs from order entered 13 August 2002 by
Judge Ernest B. Fullwood in New Hanover County Superior Court.
Heard in the Court of Appeals 13 January 2004.
Susan J. McDaniel for plaintiff appellant.
Kenneth A. Shanklin and Matthew A. Nichols for defendant
The Beau Rivage Homeowners Association (plaintiff) appeals
the order of the trial court denying its Motion to Amend Complaint
and Add Additional Parties and granting the motion to dismiss of
Billy Earl, L.L.C., and Carolina Green Estates, L.L.C.,
(defendants). For the reasons addressed herein, we affirm the
order of the trial court.
The pertinent facts to the instant appeal are as follows:Plaintiff is the homeowners association of what it describes as a
private, upscale residential community in New Hanover County,
North Carolina. On 13 November 2001, Beau Rivage Plantation, Inc.
conveyed to defendants approximately 2 acres of land. Defendants
are not members of the homeowners association.
Fifteen years before Beau Rivage Plantation, Inc. conveyed
said property to defendants, a preliminary site plan of Phase I,
Beau Rivage Plantation was approved in accordance with the New
Hanover County Zoning Ordinances which depicted tennis courts on
the property that is now owned by defendants. On 14 March 2002,
three months after defendants took title to said property, the
Technical Review Committee (TRC) of the New Hanover County
Planning Board approved a preliminary site plan submitted by
defendants for the creation of a 32 unit, subsidized housing
development. The TRC concluded that defendant must join the Beau
Rivage Homeowners Association for the maintenance of the road,
liability insurance, and other expenses incurred with a private
Plaintiff appealed the TRC's decision to approve defendants'
site plan to the New Hanover County Commissioners (County
Commissioners), who later affirmed the TRC's decision on 20 May
2002. Plaintiff appealed the County Commissioners' order to the
Superior Court. The Superior Court has not rendered judgment in
After plaintiff appealed to the County Commissioners,
plaintiff filed a civil complaint in the Superior Court of New
Hanover County praying for a temporary restraining order and apreliminary injunction preventing defendants from using the private
roads of Beau Rivage Plantation and prohibiting all activities in
furtherance of the development of defendants' land.
On 1 April 2002, Judge Paul Jones entered an order temporarily
enjoining defendants' use of plaintiff's private roads for the
purpose of accessing defendants' property. Defendants submitted a
response in opposition to plaintiff's application for a preliminary
injunction and temporary restraining order, which included a
motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(1),
12(b)(6), and Rule 17(a). A hearing on plaintiff's motion for a
preliminary injunction and restraining order and defendants' motion
to dismiss was scheduled for 3 June 2002, but scheduling conflicts
within the trial court caused the parties to continue the motion
hearing until 3 July 2002.
At the end of June 2002, plaintiff filed a Motion to Amend
Complaint and Add Additional Parties pursuant to Rules 15 and 21 of
the North Carolina Rules of Civil Procedure. Defendants filed a
response in opposition to plaintiff's motion to amend. On 3 July
2002, the trial court's order enjoining defendants from using the
private roads of Beau Rivage Plantation and developing their land
expired by its own terms.
On 3 August 2002, the trial court entered an order granting
defendants' motion to dismiss and denying plaintiff's motion to
amend its complaint and add additional parties. Plaintiff appeals.
The issues presented by the appeal are whether the trial court
erred by: (1) denying plaintiff's motion to amend its pleading;and, (2) granting defendants' motion to dismiss. For the reasons
stated herein, we affirm the order of the trial court.
 Before we address the merits of plaintiff's appeal, we
note that the record before us is incomplete. The focus of the
arguments presented in both briefs on appeal is plaintiff's
failure to exhaust administrative remedies. Generally,
defendants argue that plaintiff's amended complaint seeks to
circumvent the administrative process provided in the New Hanover
zoning ordinances. Plaintiff argues that its amended complaint
does not seek to circumvent said ordinances. The New Hanover
zoning ordinances are absent from the record on appeal.
This Court must limit its review to the arguments and record
presented on appeal. The North Carolina Rules of Appellate
Procedure requires the appellant to include in the record on
appeal 'so much of the evidence . . . as is necessary for an
understanding of all errors assigned.' Hicks v. Alford, 156 N.C.
App. 384, 389, 576 S.E.2d 410, 414 (2003), quoting N.C.R. App. P.
9(a)(1)(e) (2003). When no ordinance is presented to the appellate
court through the record on appeal, the appellate court is not
permitted to take judicial notice of the ordinance if it exists.
See Town of Scotland Neck v. Surety Co., 301 N.C. 331, 338, 271
S.E.2d 501, 505 (1980). Thus, our review of the matter herein is
limited in form and substance to the information presented on
 We first consider whether the trial court erred by denying
plaintiff's motion to amend its complaint and add additional
parties. Rule 15(a) of the North Carolina Rules of Civil Procedureprovides that after the time for amendment as a matter of right
expires, a party may amend his pleading only by leave of court or
by written consent of the adverse party; and leave shall be freely
given when justice so requires. N.C. Gen. Stat. § 1A-1, Rule 15(a)
(2003). A motion to amend is addressed to the sound discretion of
the court, and its decision will not be disturbed on appeal without
a clear showing of abuse of discretion. Patrick v. Williams, 102
N.C. App. 355, 360, 402 S.E.2d 452, 455 (1991). Where there is no
declared reason for the denial of a motion to amend, an appellate
court 'may examine any apparent reasons for such denial.' Id.,
quoting United Leasing Corp. v. Miller, 60 N.C. App. 40, 43, 298
S.E.2d 409, 411 (1982).
While appearing before this Court, plaintiff is also appearing
before the Superior Court to determine the validity of the site
plan approval. After reviewing the entire record, it appears that
the issues presented in plaintiff's amended complaint are at the
heart of the site plan approval pending before the Superior Court.
This Court determined in Swain v. Elfland that allow[ing]
plaintiff two bites of the apple could lead to the possibility
that different forums would reach opposite decisions, as well as
engender needless litigation in violation of the principles of
collateral estoppel. Swain, 145 N.C. App. 383, 389, 550 S.E.2d
530, 535 (2001). There is evidence within the record to support
the trial court's denial of plaintiff's motion to amend based on
the theory that plaintiff should not be afforded concurrent actions
of the same legal arguments. See Swain, 145 N.C. App. at 389, 550
S.E.2d at 535. Thus, plaintiff has failed to evidence that thetrial court abused its discretion by denying plaintiff's motion to
amend its complaint.
 Plaintiff's second assignment of error asserts that it was
error for the trial court to dismiss its complaint. Plaintiff
contends that its amended complaint corrects any deficiencies in
the original complaint. However, as we determined that the trial
court did not err in denying plaintiff's motion to amend its
complaint, the question before us is whether the trial court erred
in dismissing plaintiff's original complaint.
On appeal from a motion to dismiss, this Court must determine
whether, as a matter of law, the allegations of the complaint,
treated as true, are sufficient to state a claim upon which relief
may be granted under some legal theory. Harris v. NCNB, 85 N.C.
App. 669, 670, 355 S.E.2d 838, 840 (1987). An action may be
dismissed for failure to state a claim if no law supports the
claim, if sufficient facts to state a good claim are absent, or if
a fact is asserted that defeats the claim. Shell Island Homeowners
Ass'n v. Tomlinson, 134 N.C. App. 217, 517 S.E.2d 406 (1999).
'The primary purpose of a temporary restraining order is
usually to meet an emergency when it appears that any delay would
materially affect the rights of a plaintiff.' Hutchins v. Stanton,
23 N.C. App. 467, 469, 209 S.E.2d 348, 349 (1974), quoting Register
v. Griffin, 6 N.C. App. 572, 575, 170 S.E.2d 520, 523 (1969). A
temporary restraining order is only an ancillary remedy for the
purpose of preserving the status quo or restoring a status
wrongfully disturbed pending the final determination of the
action. Hutchins, 23 N.C. App. at 469, 209 S.E.2d at 349. Theprocess of seeking a temporary restraining order or a preliminary
injunction assumes that eventually the moving party wants permanent
relief. Id.; A.E.P. Industries v. McClure, 308 N.C. 393, 400, 302
S.E.2d 754, 759 (1983). After a temporary restraining order or a
preliminary injunction is granted, it is believed that the case
finally will be resolved after a full evidentiary hearing. Id.
Plaintiff's original complaint alleges that it will suffer
immediate and irreparable injury, loss, and/or damage if
defendants are not ordered to refrain, during the pendency of this
action, from using the private roads of Beau Rivage Plantation and
from activities which constitute development of defendant's
property. Plaintiff further states that a temporary restraining
order and preliminary injunction during the pendency of Plaintiff's
action are necessary to prevent Defendants from using the private
roads of Beau Rivage Plantation and to prevent Defendants from
developing their land.
Plaintiff's original complaint requests a temporary injunction
and such other and further relief as the Plaintiff might be
entitled. However, in Hutchins, this Court determined that the
phrase other and further relief as the Court may deem proper was
insufficient to allege a permanent prayer of relief. Therefore,
plaintiff's prayer for relief in its original complaint is only of
a temporary nature and does not seek permanent relief. See
Hutchins, 23 N.C. App. at 469, 209 S.E.2d at 349; Artis & Assocs.
v. Auditore, 154 N.C. App. 508, 510, 572 S.E.2d 198, 199 (2002).
Thus, it was proper for the trial court to dismiss plaintiff's
original complaint. For the reasons stated herein, we affirm the order of the
Judges WYNN and MCCULLOUGH concur.
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