Converted WP file 060330-1

Appeal by plaintiff from judgment entered 20 January 2006 by Judge Paul G. Gessner in Wake County District Court. Heard in the Court of Appeals 6 February 2007.

Harris & Hilton, P.A., by Nelson G. Harris, for plaintiff- appellant.

Jordan, Price, Wall, Gray, Jones & Carlton, PLLC, by Henry W. Jones, Jr., Brian S. Edlin, and Jessica E. Cooley, for defendant-appellee.

    STEELMAN, Judge.

    The trial court erroneously granted summary judgment in favor of defendant. The contested covenants identify the property to be maintained with sufficient particularity to survive a motion for summary judgment.
    In 1985 there was a 13.6818 acre tract of land located in Wake County, off of Sawmill Road. In 1986 two tracts, containing 1.8563 acres and 1.6542 acres, were dedicated as phase I and phase II of the Dunbarton at Greystone Condominium Project. On 21 July 1986 a Declaration of Condominium pursuant to Chapter 47A of the NorthCarolina General Statutes was filed in Book 3778 at page 752 of the Wake County Registry. Prior to the filing of the Declaration, on 20 June 1986, Articles of Incorporation of Dunbarton Pointe at Greystone Village Condominium Owners Association, Inc. (plaintiff) were filed in the office of the North Carolina Secretary of State.
    Access from the condominium projects to a public road was over The Pointe Drive, which connected to Sawmill Road. Capstone Drive ran across the western portion of the condominium projects, connecting to The Pointe Drive. The condominium projects were located in the center of the 13.6818 acre tract. To the south of the condominiums was a 6.2875 acre tract reserved for future development that had access to The Pointe Drive over Capstone Drive. At the intersection of Capstone Drive and The Pointe Drive was located a sign and gazebo, marking the entranceway (“entrance statement”) to the Dunbarton Pointe condominiums.
    In 1989, development of the land located to the south of Dunbarton Pointe Condominiums commenced. This property was developed for single-family residences. A plat was filed in Plat Book 1989, page 674 of the Wake County Registry for Parliament Pointe at Greystone Village subdivision. On 19 June 1989, Declaration of Covenants, Conditions and Restrictions for Parliament Pointe were filed in Book 4511 at page 240 of the Wake County Registry. This document placed restrictions upon the subdivision and referred to Parliament Pointe Homeowners Association, Inc. (defendant). It charged defendant withmaintenance of common property, paying “common expenses” and authorized it to assess members to cover these expenses.
    Section 5 of Article XIII of the Declaration for Parliament Pointe specifically addressed the easement over Dunbarton Pointe and the entrance statement.
        In deeds recorded in Book 3520, Page 303 and Book 3520, Page 305, both of the Wake County Registry, and in the Declaration of Dunbarton Pointe at Greystone Village Condominium recorded in Book 3778, Page 752 of the Wake County Registry there was reserved an appurtenant easement for ingress and egress and utilities, for the benefit of the Property [Parliament Pointe] over the common area of Dunbarton Pointe Condominium, all as shown on a map recorded in Book of Maps 1985 Page 1230 of the Wake County Registry. This easement allows the owner of the Property access to the easement area for the purpose of serving the Property with streets, utility lines and such other improvements as it deems necessary. It shall be the responsibility of the Association to contribute to the Condominium Association [plaintiff] two-thirds (2/3) of the funds necessary to maintain, upkeep, repair and replace the entrance statement to Dunbarton Pointe and the utility lines and roadway lying within the above described easement. Said contributions shall be deemed to be a Common Expense of the Association and shall be funded through the annual assessments. (Note: The Association's percentage of the contribution per household is greater than that of the condominium Association's contribution per household because traffic studies have shown that detached housing creates more automobile trips per day than attached housing). The Association's contribution shall be paid to the Condominium Association on a monthly basis. If in the future, additional Lots are added to the property or additional Condominium Units are added to Dunbarton Pointe Condominium, the amount of contribution of the Association shall be adjusted accordingly, provided that the contribution responsibility per household for the Lots in the Property shall remain approximately doubleof that to condominium units in Dunbarton Pointe Condominium. The Condominium Association shall be responsible for administering said funds and applying them for the intended purposes. The Condominium Association shall be deemed to be a third party beneficiary of the Association's obligation contained in this section, and shall be entitled to enforce said obligation by any proceeding in law or in equity. If the Condominium Association fails to properly maintain the Entrance Statement, street and utility lines located in the easement to a standard commensurate with the development standards of Parliament Pointe[,] the Association shall be entitled to withhold its contribution to the Condominium Association and directly expend the funds for the intended purposes.

    Article I, section 15 defines the entrance statement to “mean and refer to the identification signage for Dunbarton Pointe Condominiums and Parliament Pointe and the accompanying landscape adjacent to The Pointe Drive at the entrance to Dunbarton Pointe and Parliament Pointe.”
    The identification signage for Dunbarton Pointe is located at the intersection of The Pointe Drive and Capstone Drive. The identification signage for Parliament Pointe is located on the right hand side of Capstone Drive at the property line between Dunbarton Pointe and Parliament Pointe.
    From 1989 to about 1997, defendant remitted the requested sums to plaintiff for the maintenance of the entrance statement. Around 1997, the parties began to disagree on the sums owed from defendant to plaintiff. Between 1997 and 2005, defendant paid plaintiff only intermittently.    On 25 May 2005, plaintiff filed a complaint seeking a declaration that defendant is obliged to pay two-thirds of the costs to maintain the entrance statement, including landscaping on both sides of Capstone Drive, and that plaintiff have and recover of defendant monies due as a result of defendant's alleged breach of contract.
    On 6 July 2005, defendant filed an answer and counterclaim. Defendant's counterclaim sought a declaration of their rights under the Parliament Pointe declaration, damages for breach of contract and an accounting from plaintiff. Defendant requested a jury trial. On 28 December 2005, defendant filed a motion for summary judgment. On 20 January 2006, the trial court entered summary judgment in favor of defendant, ruling that the Parliament Pointe Declaration does not contain a sufficient standard by which to measure liability for assessments, does not identify the property to be maintained, and was void and unenforceable as a matter of law. From this grant of summary judgment in favor of defendant, plaintiff appeals.
    “The test to be applied by the trial court in ruling on a motion for summary judgment was whether the pleadings, depositions, answers to interrogatories, admissions of file or affidavits established a genuine issue as to any material fact.” McGinnis Point Owners Ass'n v. Joyner, 135 N.C. App. 752, 754, 522 S.E.2d 317, 319 (1999) (citations omitted).
    A trial court's ruling on a motion for summary judgment is reviewed by this Court “in the light most favorable to thenon-moving party.” Bradley v. Hidden Valley Transp., Inc., 148 N.C. App. 163, 165, 557 S.E.2d 610, 612 (2001) (citing Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975)), aff'd, 355 N.C. 485, 562 S.E.2d 422 (2002).
    Plaintiff contends that the trial court erroneously granted defendant's motion for summary judgment. It appears from the order entered by the trial court that there were two grounds for its ruling. First, that the provisions of the Parliament Pointe Declaration do “not contain a sufficient standard by which to measure liability for assessments”, and second, that it “does not sufficiently identify the relevant property to be maintained.”
    In plaintiff's first argument, it contends that the covenants do sufficiently identify the property to be maintained. We agree.
    The Parliament Pointe Declaration specifically defines the entrance statement as “the identification signage for Dunbarton Pointe Condominiums and Parliament Pointe and the accompanying landscape adjacent to the Pointe Drive at the entrance to Dunbarton Pointe and Parliament Pointe.” Section 5 of Article XIII of the Parliament Pointe Declaration places an affirmative obligation upon defendant for 2/3 of the amount necessary to “maintain, upkeep, repair and replace the entrance statement to Dunbarton Pointe and the utility lines and roadways lying within the above-described easement.”
    Affidavits were filed in support of and in opposition to defendant's motion for summary judgment. An affidavit from Justus M. Ammons, developer of the property, stated:         15. It was my intent, in developing the Original Tract, and specifically in executing the Parliament Pointe Declaration, that Parliament Pointe's residents would pay two- thirds of the funds expended to maintain, upkeep, repair and replace the identification signage for Dunbarton Pointe Condominiums and the Parliament Pointe subdivision and the accompanying landscaping located adjacent to the Pointe Drive at the entrance to Dunbarton Pointe, and the landscaping on both sides of Capstone Drive from the entrance to Dunbarton Pointe to the entrance to Parliament Pointe, and the utility lines and roadway lying within the easement shown on the map....

The affidavit of Joe Smathers stated:
        12. The identification signage for Dunbarton Pointe is at the intersection of The Pointe Drive, and Capstone Drive.

        13. The identification signage for Parliament Pointe is on the right hand side of Capstone Drive, where Capstone Drive crosses the property line which separates Dunbarton Pointe from Parliament Pointe.

        14. Plaintiff has maintained, upkeeped [sic], repaired and replaced the identification signage for Dunbarton Pointe Condominiums, the identification signage for Parliament Pointe Subdivision, and the accompanying landscaping along Capstone Drive between the identification signage for Dunbarton Pointe Condominiums and the identification signage for Parliament Pointe Subdivision, and the utility lines and roadway lying within the easement shown on the map recorded in Book of Maps 1985 Page 1230 of the Wake County Registry.

Albert H. Lyter, III, President of defendant, stated in his affidavit:
        12. ...there is an actual justiciable controversy between the parties over the meaning of “Entrance Statement” clearly defined in Article I, Section 15 of the Parliament Pointe Declaration. Parliament Pointe believes the plain words found inArticle I, Section 15 of the Parliament Pointe Declaration should govern. The Plaintiff, on the other hand, believes another more expansive definition of “Entrance Statement” not found in the Parliament Point Declaration should govern and apply to the relationship between Plaintiff and Parliament Pointe.

    We note: “Because covenants originate in contract, the primary purpose of a court when interpreting a covenant is to give effect to the original intent of the parties” Armstrong v. Ledges Homeowners Ass'n, 360 N.C. 547, 555, 633 S.E.2d 78, 85 (2006). “When a contract is ambiguous, parol evidence is admissible to show and make certain the intention behind the contract.” Dockery v. Quality Plastic Custom Molding, Inc., 144 N.C. App. 419, 422, 547 S.E.2d 850, 852 (2001). Therefore, the original intent of the developer in drafting particular covenants is relevant in interpreting those covenants. See Armstrong, 360 N.C. at 550, 633 S.E.2d at 82 . Further, in construing provisions in a covenant, the court must examine the entire document or documents in order to ascertain the intent of the parties. Hultquist v. Morrow, 169 N.C. App. 579, 582, 610 S.E.2d 288, 291 (2005) , rev. denied, __ N.C. __, 616 S.E.2d 235 (2005).
    It is abundantly clear from all the documents that it was intended that plaintiff maintain the entrance statement and the easement, and that defendant should be responsible for two-thirds of the cost of the maintenance. It is also clear, as stated by Mr. Lyter, that there is a dispute as to whether a restrictive definition or an expansive definition of “Entrance statement” should be used in determining the nature and extent of each party'sduties and obligations under the documents. The trial court declared that the duties of defendant under the documents were “void, and unenforceable as a matter of law[,]” thus, abrogating any responsibility on the part of defendant to contribute to the maintenance of the “Entrance Statement” and easement. This holding is clearly contrary to the express intent of the documents.
    We hold that the documents and the portions of the affidavits recited above create a genuine issue of material fact as to whether the property to be maintained is sufficiently identified. We particularly note the affidavit of Joe Smathers which clearly describes what plaintiff has maintained in the past. In construing a document, the prior conduct of the parties acting under the document can be considered. Patterson v. Taylor, 140 N.C. App. 91, 97, 535 S.E.2d 374, 378 (2000).
    Defendant asserts that this issue is controlled by the cases of Beech Mountain Property Owners Association, Inc. v. Seifart, 48 N.C. App. 286, 269 S.E.2d 178 (1980), and Snug Harbor Property Owners Association v. Curran, 55 N.C. App. 199, 284 S.E.2d 752 (1981). We disagree.
    In Seifart, the Declaration of Restrictions for a development provided for annual assessments for “road maintenance and maintenance of the trails and recreation areas.” This court held that “nothing in the record reflects that any of the defendants could have known at the time they accepted their deeds what roads or trails would be required to be maintained with revenues from assessments.” Seifart, 48 N.C. App. at 296, 269 S.E.2d at 183. Wefurther held that there was no basis upon which the Court could determine which roads and trails should be maintained and thus assessments levied. This was fatal to the enforceability of the covenant given that there were about 58 miles of roadway in the development area.
    The instant case bears little resemblance to the facts of Seifart. Defendant's obligation to contribute two-thirds of the cost of maintenance is limited to the “Entrance Statement” which is defined and restricted to signage and accompanying landscape at the two entrances, and the road and utility lines along a roadway which is described by reference to a recorded plat. All documents imposing these duties were recorded at the commencement of the development, and thus there is no issue of notice to defendant. Further, there is no discussion in Seifart of the practice, custom, and usage of the roadways, evidence of which is present in this case.
    The other case cited by defendant rests entirely upon the analysis contained in Seifart and is equally inapplicable.
    We hold that while the areas to be maintained are not described in the documents with absolute mathematical certainty, this is not required to withstand a challenge based upon Seifart and its progeny. The area to be maintained has been described with sufficient particularity, and the trial court erred in granting summary judgment on this ground.
    In plaintiff's second argument, it contends that the provisions set forth in the Parliament Pointe Declaration docontain a sufficient standard by which to measure liability for assessments. We agree.
    As noted above, the areas in question have been maintained since 1989. There is a history of prior conduct as to the nature and extent of defendant's liability for two-thirds of the maintenance expense. There is thus a genuine issue of material fact as to the liability of defendant to plaintiff under the Parliament Pointe Declaration. The trial court erred in granting summary judgment on this ground.
    This matter is reversed and remanded to the trial court for further proceedings consistent with this opinion.
    REVERSED and REMANDED.
    Judges WYNN and JACKSON concur.
    Report per Rule 30(e).

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