An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1671


Filed: 19 April 2005


v .                         Montgomery County
                            No. 01 CVS 175

    Appeal by defendant from judgment entered 21 March 2003 by Judge Michael E. Helms in Montgomery County Superior Court. Heard in the Court of Appeals 16 September 2004.

    Fisher, Clinard & Cornwell, PLLC, by Shane T. Stutts, for plaintiffs-appellees.

    Van Camp, Meacham & Newman, PLLC, by Michael J. Newman, for defendant-appellant.

    STEELMAN, Judge.

    This case contains a series of lawsuits in which plaintiffs attempted to avoid paying their equitable share of homeowner's association dues attributable to the lots they own in the Twin Harbor subdivision through chicanery. For the reasons discussed herein, we affirm the trial court's order granting partial summary judgment in favor of plaintiffs.
    Twin Harbor Camping Resort Subdivision is located in Montgomery County. The subdivision consists of lots which were sold to individual owners. The campground also includes a swimming pool, playgrounds, walkways, a guardhouse, tennis courts, and othercommon areas. Twin Harbor Homeowners Association maintains these amenities, common areas, and roadways by use of association dues and assessments. To remain in good standing, lot owners are required to pay defendant an annual dues and assessment fee, which is applicable to each lot.
    On 20 September 1977, the developer, Twin Harbor, Inc. filed the original restrictive covenants applicable to all the lots and recorded the same with the Register of Deeds for Montgomery County. These covenants were to continue “until May 1, 1997, except that they may be changed, altered, amended or revoked in whole or in part by the SELLER and the Board of Directors of the Association (after assignment to it)[.]” On 1 August 1988, Twin Harbor filed restrictive covenants applicable to all the lots in the subdivision with the register of deeds and the covenants were recorded. These covenants stated that they “revoke and supercede any prior covenants and restrictions, and said prior covenants and restrictions shall be considered null and void as of the date [of recordation of the new covenants].” The 1988 restrictive covenants stated they would continue in effect until 31 August 2008. On 31 January 1996, Twin Harbor filed and recorded an amendment to the 1988 restrictive covenants. This amendment contained the same expiration date for the restrictive covenants, but provided they would “automatically be extended for successive ten year periods[.]”
    Each plaintiff owns multiple lots in the subdivision. In an effort to avoid paying their dues and assessments on each of theirmultiple lots, plaintiffs had their respective properties re- platted, combining their multiple lots into fewer lots. Following the re-platting of their lots, plaintiffs Moore and Flowe refused to pay the dues and assessments applicable to them. The Flowes contended they were only required to pay one association fee since they had combined their lots into one, and the Moores contended they were only required to pay two association fees since they had combined their three lots into two.
    In 1988, Twin Harbor filed suit against plaintiffs Moore and Flowe, seeking to recover unpaid association dues and assessments. (Montgomery County - 98 CVD 426; 98 CVD 559). These cases were tried at the 29 October 1999 session of district court before Judge Bradford Long, sitting without a jury. Judge Long awarded Twin Harbor the full amount of back dues and assessments sought, together with interest and attorney's fees. The trial court dismissed the Moores' and Flowes' counterclaims with prejudice. Judge Long expressly based his order on a 1988 restrictive covenant, recorded by Twin Harbor, holding plaintiffs Moore and Flow were liable for dues and assessments based upon the original subdivision plat.
    On 26 April 2001, the Moores and the Flowes, together with Sandra Cummins, commenced the instant action. Their original complaint asserted they had re-platted their multiple lots into fewer lots and Twin Harbor was harassing them and interfering with their enjoyment of their property because the Flowes and Cummins would only pay the dues and assessments for one lot, and the Mooreswould only pay the dues and assessments for two lots, not the multiple lots they each owned. Their prayer for relief requested the court: (1) confirm their right to re-plat their lots; (2) declare plaintiffs each owned only one lot and, therefore only owed one annual fee; (3) award them sums paid to Twin Harbor for the multiple lots; and (4) award them punitive damages. Twin Harbor filed an answer, specifically pleading the judgments entered in 98 CVD 426 and 98 CVD 559 as a bar to plaintiffs' action and also counterclaimed for attorney's fees. Plaintiffs filed documents denominated as “First Amended Complaint” (filed 2 August 2002) and “Second Amended Complaint” (filed 8 August 2002). Through these pleadings, plaintiffs sought leave of the court to amend the complaint to assert an additional count that the restrictive covenants for Twin Harbor Subdivision expired on 1 May 1997. The record is devoid of any indication that these documents were ever presented to the trial court or whether the trial court granted leave to amend the complaint. On 21 January 2003, plaintiffs filed a motion for summary judgment, without supporting affidavits, based on the cases of Allen v. Sea Gate Ass'n, 119 N.C. App. 761, 460 S.E.2d 197 (1995) and Miles v. Carolina Forest Ass'n, 141 N.C. App. 707, 541 S.E.2d 739 (2001). On 21 March 2003, the trial court entered an order declaring the “Restrictive Covenants filed by Twin Harbor Association, Inc., at Book 186, Page 859, expired May 1, 1997, and are of no force and effect after that date.” The parties subsequently dismissed the balance of their respective claimswithout prejudice so that this Court could review Judge Helm's 21 May 2003 order. Defendant appeals that order.
    In defendant's assignments of error, it contends the trial court erred in granting summary judgment in favor of plaintiffs. We disagree.
    In their briefs, the parties argue a number of issues, none of which were before the trial court, and none of which the trial court ruled upon. Defendant contends Judge Long's order was res judicata on the issue of the validity of the 1988 restrictive covenants. It further contends the 1988 covenants constituted a revocation of the 1977 covenants and not an amendment to the 1977 covenants.
    The ruling of the trial court was narrow and limited.
        1. The Restrictive Covenants filed by Twin Harbor Association, Inc. at Book 186, Page 859, expired May 1, 1997, and are of no force and effect after that date.

        2. This matter to be retained by the Court for further orders regarding all remaining issues.

Paragraph 18 of the 1977 restrictive covenants expressly states: “All of the restrictions, conditions, covenants and agreements contained herein shall continue until May 1, 1997[.]” Based upon this provision, we hold the trial court's ruling was correct and without error.
    The parties' dispute has never been over the 1977 restrictive covenants, but over the 1988 covenants. The trial court made no ruling regarding the validity of the 1988 covenants. It did not rule that the expiration of the 1977 covenants invalidated the 1988covenants. It made no ruling as to whether the 1988 covenants were properly adopted. Nor did it make a ruling as to whether Judge Long's previous orders were res judicata on the issue of the validity of the 1988 covenants.
    It is the role of this Court to review decisions of the trial division for error, and we find none here. It is not the role of appellate courts to speculate and render advisory opinions on matters not previously ruled upon by the trial court, and we will not do so here. Wise v. Harrington Grove Cmty. Ass'n, 357 N.C. 396, 408, 584 S.E.2d 731, 740 (2003).
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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