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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.
INDIAN ROCK ASSOCIATION, INC., A North Carolina Non-Profit
Corporation, Plaintiff, v. MARVIN L. BALL, JR., and wife, IRENE
F. BALL, Defendants
Filed: 21 December 2004
1. Associations--maintenance of subdivision common areas and facilities--standing--
authority to collect assessments
The trial court did not err by granting plaintiff association's motion for summary
judgment even though defendant subdivision property owners assert that plaintiff does not have
legal authority to collect assessments from defendants and consequently no standing to assert a
claim for those assessments, because: (1) the subdivision developer conveyed subdivision streets
and parks to plaintiff; (2) plaintiff maintains the subdivision common grounds and facilities and
enforces compliance with covenants and restrictions placed on all lots within the subdivision; (3)
in order to fulfill its obligation, plaintiff was sanctioned to, and did, collect funds from all
subdivision property owners; and (4) plaintiff's inability to collect assessments from property
owners injures the association in its ability to carry out these duties.
2. Appeal and Error--preservation of issues--failure to raise at trial
Although defendant subdivision property owners contend the trial court erred by
allowing plaintiff association's motion for summary judgment even though defendants contend
the covenants based on which plaintiff sought to collect assessments are too vague to be
enforceable, this assignment of error is dismissed because: (1) defendants failed to raise this
issue before the trial court; and (2) nothing in defendants' assignments of error nor anything else
in the record raises this issue.
Appeal by Defendants from orders entered 6 November 2003 by
Judge Alfred W. Kwasikpui in District Court, Northhampton County.
Heard in the Court of Appeals 2 November 2004.
William T. Skinner, IV, for plaintiff-appellee.
Hux, Livermon & Armstrong, L.L.P., by H. Lawrence Armstrong,
Jr., for defendant-appellants.
Defendants Marvin L. Ball, Jr. and Irene F. Ball appeal from
orders entered 6 November 2003 allowing Plaintiff Indian Rock
Association, Inc.'s motion for summary judgment and denying theBalls' motion to dismiss. After careful review, we affirm the
trial court's orders.
The procedural and factual history of the instant appeal is as
follows: Indian Rock Association is a non-profit corporation
organized and chartered in May 1971 for the purposes of maintaining
the Indian Rock Subdivision's common grounds and facilities and
enforcing compliance with covenants and restrictions placed on all
lots within the subdivision. These covenants and restrictions were
imposed by Lakeside Realty Company, Inc., which developed the
Indian Rock Subdivision. As Indian Rock Association and the Balls
stipulated and agreed in their pretrial conference on 9 June 2003,
a 1968 affidavit executed by Lakeside Realty stated that the buyer
[of any Indian Rock Subdivision lot] shall promptly pay $10.00 to
the Indian Rock Association and all other assessments which become
due after the date of sales contract. Moreover, the affidavit
stated that a buyer is entitled to full enjoyment of the
Association's common properties subject to certain recorded
restrictions and covenants. The parties further stipulated and
agreed that all Indian Rock Subdivision lots, including those owned
by the Balls, are subject to those covenants, restrictions, and
In December 1971, Lakeside Realty recorded a deed conveying
certain streets and parks to Indian Rock Association. Indian Rock
Association owns no subdivision lots or property other than those
streets and parks. In May 1976, an amendment to the Indian Rock
bylaws was recorded; attached thereto was a Lakeside Realty
resolution transferring all of its rights, title, and privileges inthe restrictive covenants previously held by Lakeside Realty to
Indian Rock Association.
Mr. Ball participated in Indian Rock Association's corporate
activities from 1982 until at least 1984 as a member of Indian Rock
Association's Board of Directors and at least one committee.
Moreover, the Balls paid assessments on their lots until at least
1987. The Balls have since refused to pay dues and assessments to
Indian Rock Association despite numerous demands. Indian Rock
Association therefore filed an action similar to the case at bar on
or around 27 July 1990. After a ruling in favor of Mr. Ball,
Indian Rock Association voluntarily dismissed the case.
Indian Rock Association filed the instant action on 5 November
1998, seeking monetary assessments against the Balls. The Balls
filed motions to dismiss. Indian Rock Association and the Balls
entered into a pretrial conference order including substantial fact
stipulations. Following a hearing on 25 August 2003, the trial
court denied the Balls' motion to dismiss and granted summary
judgment in favor of Indian Rock Association. The Balls appealed.
 The Balls first contend that the trial court committed
reversible error in allowing Indian Rock Association's motion for
summary judgment because Indian Rock Association did not have legal
authority to collect assessments from the Balls and consequently no
standing to assert a claim for those assessments. We disagree.
Whether Indian Rock Association has standing is a question of
law and thus reviewed de novo by this Court. Lee Ray Bergman Real
Estate Rentals v. N.C. Fair Hous. Ctr., 153 N.C. App. 176, 179, 568S.E.2d 883, 885 (2002). To bring suit on its own behalf, an
association need only meet the 'irreducible constitutional minimum'
of a sufficient stake in a justiciable case or controversy. Creek
Pointe Homeowner's Ass'n v. Happ, 146 N.C. App. 159, 168, 552
S.E.2d 220, 227 (2001) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 119 L. Ed. 2d 351 (1992) (the irreducible constitutional
minimum of Article III of the U.S. Constitution requires plaintiff
who wishes to pursue claim in federal court to demonstrate (1)
injury in fact, (2) causal relationship between injury and conduct
complained of, and (3) likelihood that injury would be redressed by
favorable verdict); Transcon. Gas Pipe Line Corp. v. Calco Enter.,
132 N.C. App. 237, 511 S.E.2d 671 (1999)).
Here, Lakeside Realty, the subdivision developer, conveyed
subdivision streets and parks to Indian Rock Association. Indian
Rock Association maintains the subdivision common grounds and
facilities and enforces compliance with covenants and restrictions
placed on all lots within the subdivision. In order to fulfill its
obligations, Indian Rock Association was sanctioned to, and did,
collect funds from all subdivision property owners, including, for
numerous years, the Balls. Clearly, Indian Rock Association's
inability to collect assessments from property owners
injures the association in its ability to carry out
th[ese] dut[ies]. The injury is causally connected to
the defendant[s'] alleged behavior, and likely would be
redressed by a favorable verdict in this action.
Therefore, we hold that on the facts of this case, the
association had standing to bring this suit[.]
Creek Pointe Homeowner's Ass'n
, 146 N.C. App. at 168-69, 552S.E.2d at 227.
(See footnote 1)
 The Balls next argue that the trial court committed
reversible error in allowing Indian Rock Association's motion for
summary judgment because the covenants based on which Indian Rock
Association sought to collect assessments are too vague to be
enforceable. However, Defendant[s] 'cannot assert this on appeal
because [they] failed to raise this issue before the trial
court[.]' Crist v. Crist, 145 N.C. App. 418, 423, 550 S.E.2d 260,
264 (2001) (quoting Brooks v. Wal-Mart Stores, Inc., 139 N.C. App.
637, 650, 535 S.E.2d 55, 64 (2000), disc. review denied, 353 N.C.
370, 547 S.E.2d 2 (2001)); N.C. R. App. P. 10. While the Balls
cite to their Assignments of Error Nos. 1 and 2 for this
proposition, nothing in their Assignments of Error nor anything
else in the record before this Court raises this issue. Whether
the covenants based on which Indian Rock Association sought to
collect assessments are too vague to be enforceable is therefore
not properly presented for our consideration.
In sum, we affirm the trial court's order granting Indian Rock
Association's motion for summary judgment.
The Balls rely heavily on Beech Mountain Property Owners'
Assoc. v. Current
, 35 N.C. App. 135, 240 S.E.2d 503 (1978) in
arguing that Indian Rock lacks standing. This reliance is,
however, misplaced. In contrast with the case sub judice
Beech Mountain Property Owners' Association owned no subdivision
property and was not authorized to enforce restrictions on lot
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