An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-1371


Filed: 01 March 2005


v .                         Mecklenburg County
                            No. 01 CVS 9577

    Appeal by defendant from judgment entered 9 April 2003 by Judge Susan C. Taylor in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 August 2004.

    Kenneth T. Davies for plaintiff-appellee.

    DeVore, Acton & Stafford, P.A., by Fred W. DeVore, III, for defendant-appellant.

    STEELMAN, Judge.

    Plaintiffs instituted this action contending that a duplex built by defendant violated certain restrictive covenants. Sitting without a jury, the trial court heard this matter and entered judgment declaring the restrictive covenants to be valid and enforceable, and directing that defendant either modify the duplex to comply with the covenants or demolish it. Defendant appeals.
    In 1922, W.S. Pharr subdivided a tract of real estate into eleven lots. On 20 October 1923, Pharr conveyed Lots 1 and 2, containing four and half acres to James M. Stafford. The deedgiven to Stafford contained the following restrictions relevant to this case:
        (2) No residence erected on the property shall be nearer the property line adjoining any street than sixty (60) feet, nor either of the side property lines than fifteen (15) feet.
        . . . .

        (7) No subdivision of any part of the above described property by sale, or otherwise, shall be made so as to result in a plot having an acreage of less than half an acre or a frontage of less than 100 feet.

        (8) Any residence built on the property must face the street in front of the lot on which it is built.

        (9) It is expressly understood and agreed by the parties hereto that all of the foregoing covenants, conditions, and restrictions shall run with the land and shall be held to bind the land and all subsequent owners and occupants thereof; . . . .

At the time of this conveyance, the only roadway shown on the subdivision plat was Harris Road, which ran along the southeastern boundary of Lot 1.
    In 1924, Stafford conveyed the property to H.W. Harkey and William H. Jackson. The deed contained the same restrictions as the deed from Pharr to Stafford. In 1941, Harkey and Jackson conveyed the property, together with two small adjoining tracts to Harkey Brothers Nurseries, Inc. The deed incorporated by reference any restrictions previously placed on the property. The record is devoid of any indication whether the two small tracts of land were subject to any restrictions. In 1946, the Harkey Brothers combined Lots 1 and 2 with the two smaller adjoining tracts and then re- subdivided the property into nine lots by filing a plat in theRegister of Deeds for Mecklenburg County. This plat showed a new street, Tanglewood Lane, which ran perpendicular to Harris Road and bisected the property. Lot 7 of the new subdivision contained 18,130 square feet, less than half an acre. On 19 March 1946, Harkey Brothers Nurseries conveyed the newly created Lot 7 to J. Irvine and Moriette Nabors. The lot was located on the corner of Harris Road and Tanglewood Lane. The deed did not contain any references to restrictive covenants. Although Lot 7 was subsequently transferred several times, no restrictions were referenced or recited in the deeds of conveyance until 7 June 1978 when Mary Smith conveyed the lot to Stephen Smith subject to “all such valid and enforceable easements, conditions and restrictions as may appear of record.” Subsequent conveyances, including the deed to defendant dated 20 March 2001, contained similar language. None of the conveyances from 1978 to 2001 referenced any specific restrictions.
    Soon after acquiring the property, defendant began constructing a duplex. One unit of the duplex faces Harris Road and the other unit faces Tanglewood Lane. The unit facing Harris Road complies with the sixty foot setback restriction, but the unit facing Tanglewood Lane is only thirty feet from the road. Several of plaintiffs residences were also in violation of the setback requirements contained in the 1923 deed. Plaintiff Williams' residence faces Harris Road and is located 59.9 feet from the road and 10.6 feet from the side property line. Plaintiff Hopper's residence is located 7.1 feet from the side property line. Plaintiff Brannon's residence is located 12.2 feet from the side property line.
    On 16 May 2001, plaintiffs instituted this action seeking the following relief: (1) a declaration that the 1923 restrictive covenants were valid and enforceable; (2) an injunction requiring the duplex on Lot 7 be reconfigured or demolished; (3) damages for nuisance; (4) an injunction prohibiting defendant from damaging plaintiff Brannon's trees; and (5) monetary damages for damage to the real property of plaintiff Brannon. Defendant's answers denied the material allegations of plaintiffs' complaint, and raised a number of affirmative defenses, including: (1) subsequent developers abandoned any common scheme of development for the property; (2) waiver; (3) laches; (4) the restrictions were unenforceable against defendant because three of the plaintiffs were themselves in violation of the restrictions; and (5) enforcement of the restrictions would violate the Marketable Title Act (Chapter 47B of the General Statutes). Defendant also asserted a counterclaim, contending that if the restrictive covenants were to be enforced against defendant, they should also be enforced against plaintiffs Hooper, Williams, and Brannon.
    Defendant makes three assignments of error, but only argues one of them in its brief. The other two assignments of error are thus deemed abandoned. N.C. R. App. P. 28(b)(6). In its remaining assignment of error, defendant contends the trial court erred in concluding that the restrictive covenants were valid and enforceable.     We note that defendant fails to assign as error any of the trial court's findings of fact. They are therefore binding on this Court on appeal. Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991). However, even when the findings of fact are deemed to be supported by competent evidence and binding, they must still be sufficient to support the trial court's conclusions of law. Lange v. Lange, ___ N.C. App. ___, ___, 605 S.E.2d 732, 733 (2004).
    Defendant's brief presents three arguments in support of its position that the trial court erred in finding the restrictive covenants enforceable: (1) the 1923 restrictive covenants were terminated as a matter of law by the Marketable Title Act; (2) the original scheme of development by Pharr was abandoned and supplanted by the Harkey Brothers' re-subdivision of the property; and (3) the restrictions are unenforceable against defendant because of plaintiffs' own violations. Each of these arguments were presented to the trial court by virtue of defendant's affirmative defenses.
    We first address defendant's argument regarding the Real Property Marketable Title Act, which provides:
        (c) Subject to the matters stated in G.S. 47B-3, such marketable record title shall be free and clear of all rights, estates, interests, claims or charges whatsoever, the existence of which depends upon any act, title transaction, event or omission that occurred prior to such 30-year period. All such rights, estates, interests, claims or charges, however denominated, whether such rights, estates, interests, claims or charges are or appear to be held or asserted by a person sui juris or under a disability, whether such person isnatural or corporate, or is private or governmental, are hereby declared to be null and void.

N.C. Gen. Stat. 47B-2(c) (2004). This provision is subject to the exceptions set forth in N.C. Gen. Stat. § 47B-3. One of the exceptions contained in § 47B-3 deals with covenants restricting property to residential uses. It provides that “[s]uch marketable record title shall not affect or extinguish the following rights:”
        (13) Covenants applicable to a general or uniform scheme of development which restrict the property to residential use only, provided said covenants are otherwise enforceable. The excepted covenant may restrict the property to multi-family or single-family residential use or simply to residential use. Restrictive covenants other than those mentioned herein which limit the property to residential use only are not excepted from the provisions of Chapter 47B.

N.C. Gen. Stat. 47B-3(13) (2004).
    The trial court's judgment is devoid of any findings of fact or conclusions of law concerning the Marketable Title Act, its applicability, or whether the Pharr restrictions constituted a general or uniform scheme of development which restrict the property to a residential use only.
    When sitting without a jury, “it is the duty of the trial judge to resolve all issues raised by the pleadings and the evidence by making findings of fact and drawing therefrom conclusions of law upon which to base a final order or judgment.” Pittman v. Barker, 117 N.C. App. 580, 591, 452 S.E.2d 326, 333 (1995). An answer is part of the pleadings. See N.C. Gen. Stat. § 1A-1, Rule 7(a) (2004). Thus, the trial court was required tomake findings of fact and conclusions of law disposing of this and any other affirmative defenses raised. See Pittman, 117 N.C. App. at 591-92, 452 S.E.2d at 333. In the absence of such findings, the judgment is inadequate, and we are unable to consider the arguments raised on appeal. See CIT Grp./Sales Fin., Inc. v. Bray, 141 N.C. App. 542, 545, 539 S.E.2d 690, 692 (2000) (holding the findings must be such as to enable an appellate court to review the lower court's decision, as well as test the correctness of that judgment).
    Similarly, there are no findings of fact or conclusions of law concerning whether the Harkey Brothers' re-subdivision of the property in 1946 constituted an abandonment of or supplanted the original scheme of development created by Pharr. The judgment only contains conclusory statements that the restrictions were valid and enforceable. This finding is also insufficient to allow this Court to engage in meaningful appellate review of this issue.
    With respect to defendant's third argument concerning plaintiffs' own violations of the restrictive covenants, the trial court made the following finding of fact: “In addition and according to the expert testimony of surveyor Soutwelle, the evidence in the case showed that plaintiff's Williams, Hopper, and Brannon have violations of front or side setback requirements as the restrictions are valid and enforceable against them, but the violations are very minimal.”
    This Court has held that “[w]here restrictions have been imposed according to a general plan, one of the grantees of lotssubject thereto, who has himself violated such restrictions, will not be allowed in equity to complain against similar violations by other grantees.” Rodgerson v. Davis, 27 N.C. App. 173, 179, 218 S.E.2d 471, 475 (1975). The violative lot owner has waived his right to enforce the restrictive covenants. Medearis v. Trs. of Myers Park Baptist Church, 148 N.C. App. 1, 12, 558 S.E.2d 199, 207 (2001). In the instant case, plaintiffs Williams, Hopper, and Brannon's own violations of the purported setback requirements are of the same nature as the defendant's, of which they complain. Although, the Littles are not in violation of the purported setback restrictions, therefore they may be entitled to enforce the restrictions against defendant. However, the trial court's order contains no findings of fact that the Littles own a lot in the subdivision or have the right to enforce the 1923 restrictive covenants. As a result, the trial court's findings are inadequate to allow this Court to engage in meaningful appellate review of this issue. In the instant case, neither the trial court's findings of fact or conclusions of law address the affirmative defenses raised by defendant. Without such findings, the judgment is incomplete, and we are unable to consider the arguments raised on appeal or test the correctness of the judgment. Where the trial court fails to resolve all the issues so raised, this Court has no choice but to vacate the order and remand the case to the trial court for completion. Pittman, 117 N.C. App. at 592, 452 S.E.2d at 333.     We affirm the portion of judgment awarding $600.00 to plaintiff Brannon based on nuisance, as defendant did not appeal this award. We vacate the remainder of the judgment and remand this case to the trial court to make additional findings of fact and conclusions of law consistent with this opinion. The trial court may, in its discretion, receive additional evidence prior to making its findings of fact and conclusions of law.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***