Link to PDF file
How to access the above link?
Return to nccourts.org
Return to the Opinions Page
HEDINGHAM COMMUNITY ASSOCIATION, Plaintiff, v. GLH BUILDERS,
2. Deeds_restrictive covenants_group home_public policy
Plaintiff's attempt to enforce its restrictive covenants to prohibit use of a house as a family care home for girls with emotional or mental disabilities who are not dangerous to others was void as against public policy under N.C.G.S. § 168-23.
Appeal by Plaintiff
from orders filed 20 December 2004 by
Judge Craig Croom and 21 February 2005 by Judge Shelley
in Wake County District Court. Heard in the Court of
Appeals 12 April 2006.
BEWLAW, PLLC, by Brent E. Wood, for Plaintiff-Appellant.
Manning Fulton & Skinner, P.A., by William C. Smith, Jr., for Defendant-Appellee.
Ms. George testified further that staff people also make the
children's meals and do all the caretaking while they're placed in
our care. Staff employees must have an NCI (North Carolina
Interventions) certification, know CPR, and be certified to give
medications. A physician must order residents into the program for
at least 120 days. Ms. George could not recall more than one
resident who remained in the program at the Dyer house for more
than six months. Medicaid pays Triangle $232.36 per child per day
for the services provided at the Dyer house.
Triangle does have a qualified mental health professional on call at any time that is needed in case of an emergency. . .[and] a counselor that comes in once a week [to] talk with the children. The counselor usually sees the children at Triangle's office location unless there is an emergency and the counselor has to go to the home[.] Emergency situations include suicide threats and crisis intervention to de-escalate the situation before it develops into a crisis. At the Dyer house, according to Ms. George, we've had nothing that has been out of control. Nobody has gotten hurt. . . .
Ms. George testified that police officers have been called to the Dyer house on several occasions when a child has walked awayfrom the property and been gone for more than fifteen minutes. Fifteen minutes after we cannot see a child in our sight, we have to call the police because we have to report that they've walked away from the program. Ms. George estimated that police officers had been called to the Dyer house about ten times between December 2002 and December 2003. (See footnote 3)
Plaintiff also called as a witness Geri Blackford, the community manager at Hedingham for approximately ten years. Ms. Blackford testified that she became familiar with the Dyer house property because of the complaints she received from other Hedingham residents. She said that she drove by the property one day and there were four police cars out front[.] The officers informed Ms. Blackford that there was a problem going on and they were sitting there to try and resolve it. That was the only incident at the Dyer house that Ms. Blackford had observed. She testified further that parking at the property had been an issue. . .[f]rom time to time.
Ms. Blackford conceded that the Hedingham restrictive covenants do not prohibit group homes or family care homes per se. She agreed that the covenants permit leases, although not subleases, and that Plaintiff has no right to disapprove alease[.] She was not aware of any other group homes at Hedingham, but acknowledged that there are day-care facilities in the subdivision run out of people's houses . . . that were. . . otherwise built for residential homes[.] She also conceded that she was aware of domestic situations[,] break-ins . . . and other matters requiring police officers to answer calls at other residences in Hedingham.
Ms. Blackford agreed that the Dyer house is just a regular single-family residence construction[,] with no signs out front identifying it as a group or family care home, that has not been modified in any way to give it an institutional character[.] She agreed further that the yard is well kept and the house is well maintained as far as she can see from the outside. Ms. Blackford had no evidence that the residents of the Dyer house had ever been violent, or hurt someone, or been a danger to anyone.
At the close of Plaintiff's evidence, Defendant moved to dismiss Plaintiff's case under N.C. Gen. Stat. § 1A-1, Rule 41(b). The trial judge allowed the motion and in a written order filed 21 February 2005, made the following pertinent findings of fact:
3. Plaintiff proffered the testimony of Gerry [sic] Blackford who . . . testified that she believed the maintenance of the [Dyer] Home was in violation of certain restrictive covenants applicable to Hedingham.
4. Blackford further testified that she had witnessed four police cars responding to acall at the Home on one occasion.
5. Blackford provided no testimony that the residents or staff at the Home had ever caused or threatened to cause injury to any person or property at Hedingham.
. . . .
7. [Dorothy] George testified that the residents of the Home suffered from mental illness or emotional disturbance.
8. George testified that the Home housed up to four girls at one time, up to the age of 17, for stays that could exceed six months. George further testified that the residents were not dangerous to others, and had not inflicted or attempted to inflict or threatened to inflict serious bodily harm on others.
9. George testified that the Home provides only room, board, and transportation services for the residents.
Upon these findings, Judge Desvousges concluded that (1) the Dyer
house is a family care home within the meaning of N.C. Gen. Stat.
§ 168-21(1); (2) the residents of the home are handicapped
(See footnote 4)
as defined in N.C. Gen. Stat. § 168-21(2); (3) the
residents are not dangerous to others as defined in N.C. Gen.
Stat. § 122C-3(11)(b); (4) Plaintiff made no showing that the Home
or its residents fall outside the protections provided under N.C.
Gen. Stat. § 168 et. seq[,] and Plaintiff failed to show any right
to relief; and (5) any attempt to use the Hedingham restrictive
covenants to prohibit the use of the Dyer house as a family carehome or its current use as a facility licensed under 10A N.C.A.C.
27(G).1300, is void as against public policy. . . . The court
thus dismissed Plaintiff's complaint with prejudice. Plaintiff
To support assignment of error one, Plaintiff references the pages
in the Record on Appeal at which the entire orders of Judge Croom
and Judge Desvousges appear. To support the additional three
assignments of error, Plaintiff references the pages where the
entire order of Judge Desvousges appears. Plaintiff brings forward
all four assignments of error under one argument in its brief that
[t]he trial court erred in dismissing Plaintiff's claims. . .because Plaintiff has established a right of relief by showing
Defendant violated the declaration.
Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure governs the form required for assigning error to actions of the trial tribunal. In pertinent part, this Rule requires that:
Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned. An assignment of error is sufficient if it directs the attention of the appellate court to the particular error about which the question is made, with clear and specific record or transcript references.
N.C.R. App. P. 10(c)(1) (2005) (emphasis added). Assignments of
error which are broad, vague, and unspecific [sic] . . . do not
comply with the North Carolina Rules of Appellate Procedure[.] In
re Lane Company-Hickory Chair Div., 153 N.C. App. 119, 123, 571
S.E.2d 224, 226-27 (2002). Moreover, the appellant must except
and assign error separately to each finding or conclusion that he
or she contends is not supported by the evidence, then state which
assignments support which questions in the brief. Concrete Serv.
Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d
755, 759-60, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).
Additionally, although questions challenging the sufficiency of
evidence to support a particular finding of fact may be combinedwith challenges against any conclusions of law based upon such
. . . findings, N.C.R. App. P. 10(c)(3) (emphasis added), failure
to assign error to specific findings of fact of the trial court
renders those findings binding on this Court, which must conclude
that they are supported by competent evidence. Koufman v. Koufman,
330 N.C. 93, 408 S.E.2d 729 (1991).
In Viar v. N.C. DOT, 359 N.C. 400, 610 S.E.2d 360, reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005), our Supreme Court admonished this Court for considering the merits of an appeal despite several violations of the appellate rules. Noting that the Rules of Appellate Procedure are mandatory, the Court held that [i]t is not the role of the appellate courts . . . to create an appeal for an appellant. . . . [T]he Rules of Appellate Procedure must be consistently applied; otherwise, the Rules become meaningless,. . . Viar, 359 N.C. at 402, 610 S.E.2d at 361.
Since Viar, this Court has struggled with when it may still be appropriate to invoke the provisions of Rule 2 to suspend or vary the requirements of the Rules [t]o prevent manifest injustice to a party, or to expedite decision in the public interest, N.C.R. App. P. 2 (2005), and thereby to reach the merits of cases in which Rule violations would subject the appeal to dismissal. (See North Carolina Association of Defense Attorneys , Appellate Procedures and Technicalities, 29th Annual Meeting (2006), for a survey of post-Viar decisions in this Court and our Supreme Court.) In this case, Plaintiff's appeal is plainly subject to dismissal for broadside, nonspecific assignments of error which 'essentially amount to no more than an allegation that the court erred because its ruling was erroneous.' Hubert Jet Air, LLC v. Triad Aviation, Inc., 177 N.C. App. 445, 448, ___ S.E.2d ___, ___ (2006) (citation omitted); see also In re Election Protest of Fletcher, ___ N.C. App. ___, 625 S.E.2d 564 (2006). Such assignments of error allow counsel to argue anything and everything they desire in their brief on appeal [and] 'like a hoopskirt_cover everything and touch nothing.' Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 759, 606 S.E.2d 407, 409 (2005) (citation omitted). Nonetheless, because we believe that the question presented by this case raises public interest issues, we choose to exercise our authority under Rule 2 and consider the merits of the appeal despite the violations of Rule 10.
N.C. Gen. Stat. § 122C-3(11)b.
If a group home qualifies under Chapter 168 as a family care home, the statute expressly prohibits [a]ny restriction, reservation, condition, exception, or covenant in any subdivisionplan, deed, or other instrument of or pertaining to the . . . lease, or use of property which would . . . prohibit the use of such property as a family care home. . . . N.C. Gen. Stat. § 168- 23. Such restrictions on the use of residential property are void as against public policy and shall be given no legal or equitable force or effect. Id. Our Supreme Court has stated that Chapter 168, being remedial, should be construed liberally, in a manner which assures fulfillment of the beneficial goals for which it is enacted and which brings within it all cases fairly falling within its intended scope. Burgess v. Joseph Schlitz Brewing Co., 298 N.C. 520, 524, 259 S.E.2d 248, 251 (1979) (citations omitted).
On appeal, Plaintiff argues that the provisions of Chapter 168 are not applicable here for various reasons, including (a) Plaintiff's contention that the operation of the Dyer house constitutes a business enterprise inconsistent with the residential character of Hedingham, (b) the Dyer house is a residential treatment facility and not a family care home, (c) the record is unclear with respect to the extent of the disabilities of the residents of the Dyer house, and (d) the evidence establishes that the residents of the Dyer house are dangerous to others. Plaintiff's arguments have no merit for the following reasons:
The trial court's findings of fact include findings that (1) the Dyer house, through Triangle Alternatives, is duly licensed bythe State of North Carolina, has appropriate zoning approval, and is in compliance with all applicable laws and ordinances; (2) the only services provided to the residents of the Dyer house are room, board and transportation; (3) the residents of the home suffer from mental illness or emotional disturbance; and (4) the home houses no more than four girls at one time. As Plaintiff has not assigned error to any of these findings, they are conclusive on appeal, Koufman, 330 N.C. at 97, 408 S.E.2d at 731 (Where no exception is taken to a finding of fact by the trial court, the finding is presumed to be supported by competent evidence and is binding on appeal.), and our inquiry is thus limited to a determination of whether the findings of fact support the trial court's conclusions of law on the issues that control the outcome of the case. In our opinion, these findings fully support the court's Conclusion of Law 4 that the Dyer house is a family care home, or a home with support and supervisory personnel that provides room and board, personal care and habilitation services in a family environment for not more than six resident handicapped persons (now persons with disabilities). N.C. Gen. Stat. § 168-21(1). They also support the court's Conclusion of Law 5 that the residents of the Dyer house are 'handicapped persons' or persons with temporary or permanent emotional or mental disabilities including emotional disturbances [under] N.C. Gen. Stat. § 168-21(2). The trial court additionally found that (1) the residents of the Dyer house have never caused or threatened to cause injury to any person or property at Hedingham, (2) are not dangerous to others, and (3) have not inflicted or attempted to inflict or threatened to inflict serious bodily harm on others. Not having been challenged by a specific assignment of error, these findings of fact are likewise binding on this appeal, and they support the court's Conclusion of Law 6 that the Dyer house is not precluded from offering its services to its residents under the exclusion for mentally ill persons who are dangerous to others as defined in G.S. 122C-3(11)(b). N.C. Gen. Stat. § 168-21(2). Since the trial court properly concluded upon binding findings of fact that the Dyer house is a family care home for persons with emotional or mental disabilities who are not dangerous to others, the court further properly ruled that Plaintiff's attempt to enforce its restrictive covenants to prohibit the use of the Dyer house as a family care home is void as against public policy under N.C. Gen. Stat. § 168-23. The court thus properly dismissed Plaintiff's action with prejudice under Rule 41(b) of the North Carolina Rules of Civil Procedure.
Our determination of these issues renders it unnecessary to address Plaintiff's remaining arguments that Defendant's use of the Dyer house violates the restrictive covenants applicable to all Hedingham residents. For the reasons stated, the orders of the trial court are Affirmed.
Judges MCGEE and HUNTER concur.
*** Converted from WordPerfect ***