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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 1 May 2007
CHANNEL WALK HOMEOWNERS
v. New Hanover County
No. 05 CVS 599
Appeal by defendant from order entered 10 April 2006 by Judge
John E. Nobles in New Hanover County Superior Court. Heard in the
Court of Appeals 21 March 2007.
Ward and Smith, P.A., by Alexander C. Dale, for plaintiff
William Norton Mason for defendant appellant.
Defendant appeals from an order granting partial summary
judgment to plaintiff. We affirm.
Plaintiff Channel Walk Homeowners Association, Inc. (the
Association) is a North Carolina nonprofit corporation. Defendant
Mark Sheffield (defendant) is the owner of Lot 9 in Channel Walk
Townhomes and thus is a member of the Association.
In December 2003, a meeting of the members of the Association
was held and a vote was taken on a proposal to replace the siding
on the townhomes in Channel Walk, the cost of which would beassessed to the members. After the vote, the president of the
Association announced that the proposed siding assessment did not
pass. A short time later, the president announced that the proposal
had passed when written proxy votes were counted. The total sum of
$12,430.00 was owed by each unit owner for the siding project
assessment. Defendant paid an initial portion of the assessment in
the amount of $3,505.00, but he failed to pay the remaining
principal amount of $8,925.00. As a basis for not paying the
entire amount owed, defendant said that he believed the vote of the
siding project assessment did not pass.
In 2004, defendant applied to the Association's architectural
committee for approval for a covered deck he proposed to build on
his townhome and approval was granted. After construction of the
deck was completed, the Association's Board of Directors contended
that the deck was not constructed according to the approved plans.
The Board of Directors voted unanimously to require defendant to
repair the deck. The Board claimed defendant failed to repair the
deck, so the Association retained a contractor to bring the deck
into conformity with the plans submitted to and approved for
construction by the Association. A neighbor contacted defendant
and told him of the contractor's actions, and the neighbor called
the Wrightsville Beach Police Department. The police told the
contractor to leave defendant's lot. On 4 February 2005, the
Association, by letter from its counsel, demanded that defendant
repair the deck to bring it into conformity with the plans approvedby the Association. Defendant refused to repair or remove the
On 16 February 2005, the Association filed a complaint against
defendant. Among other things, the complaint sought the unpaid
portion of the siding project assessment and a mandatory injunction
requiring defendant to repair or remove the constructed deck. The
complaint also sought unpaid monthly installments of the annual
assessment. An order granting partial summary judgment was entered
in favor of the Association. Defendant appeals the terms of that
order, and the remaining issues for trial in this action were
stayed pending appeal.
On 3 November 2006, the Association filed several motions to
dismiss the appeal. On 6 November 2006, the Association moved to
amend the record on appeal to include the Declaration of Covenants,
Conditions and Restrictions for Channel Walk and moved for this
Court to take judicial notice of the Declaration. Defendant
responded to all of the Association's filings. We allow the
Association's motion to amend the record on appeal. The remaining
motions filed by the Association are moot as a result of our
Defendant contends the trial court erred when it granted
partial summary judgment to the Association on the Association's
claim that defendant failed to pay assessments. Specifically,
defendant asserts there were contested issues of material fact as
to whether the Association had properly obtained authority from itsmembers to levy the siding assessment and whether defendant owed
the claimed monthly installments of the annual assessment. We
Summary judgment is appropriate only if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). There is no genuine issue of material fact where a party
demonstrates that the claimant cannot prove the existence of an
essential element of his claim or cannot surmount an affirmative
defense which would bar the claim. Harrison v. City of Sanford,
177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc. review denied,
361 N.C. 166, 639 S.E.2d 649 (2006). On appeal from a grant of
summary judgment, this Court reviews the trial court's decision de
novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809,
513 S.E.2d 572, 573-74 (1999).
A. Siding Project Assessment
Defendant received new siding as a result of the siding
project assessment, but defendant has not presented any evidence
that the vote on the siding project assessment did not pass. In
his brief, defendant states he was of the opinion that the siding
assessment did not pass. In defendant's amended affidavit, he
states he believed the siding project assessment did not pass.
'Rule 56(e) clearly precludes any party from prevailing against a
motion for summary judgment through reliance upon such conclusoryallegations unsupported by facts.' Lowe v. Bradford, 305 N.C.
366, 371, 289 S.E.2d 363, 367 (1982) (citation omitted).
Accordingly, we agree with the trial court regarding the siding
B. Monthly Installment of Annual Assessment
Defendant admits in his answer that the Association, pursuant
to the Declaration, imposes on him and other members of the
Association an annual assessment, payable as monthly dues. In his
brief, defendant states that he does not owe the claimed dues
payment because he was forced to make repairs to his townhome when
the Association failed to make some needed repairs. However, no
provision of the Declaration provides defendant any authority for
not paying his monthly dues. In addition, defendant offers no case
authority supporting his assertion that, because the Association
failed to repair damage to his townhome after his requests, he can
deduct the cost of the repairs from his monthly dues. Accordingly,
we disagree with defendant.
Defendant contends the trial court erred when it granted
partial summary judgment to the Association allowing a mandatory
injunction requiring defendant to remove the deck or bring the deck
into conformity with plans and specifications. We disagree.
Article V of the Declaration provides:
No building, fence, wall or other
structure shall be commenced, erected or
maintained upon the Properties, nor shall any
exterior addition to or change or alteration
therein be made until the plans andspecifications showing the nature, kind,
shape, height, materials, and location of the
same shall have been submitted to and approved
in writing as to the harmony of external
design and location in relation to surrounding
structures and topography by the Board of
Directors of the Association[.]
(Emphasis added.) Initially, defendant was granted approval by the
Association to build a deck on his townhome. In his affidavit filed
in response to the Association's motion for summary judgment,
defendant stated that the Wrightsville Beach Building Inspector
required changes to the deck plans due to structural requirements
of the building code. Defendant also stated that an individual
Board member viewed the changes to the deck plan and approved the
changes. In his brief, defendant essentially asserts that he relied
on a Board member's statement that the altered deck was approved
and that he relied on the Board member's approval to complete the
deck. Further, defendant asserts that an issue of material fact
exists as to whether the Board of Directors, through their member,
gave approval of the deck precluding the grant of partial summary
We conclude there is no genuine issue of material fact
precluding summary judgment in favor of the Association. First,
nothing in the record tends to show that defendant obtained written
approval from the Board of Directors of the Association to build
the altered deck. Second, although not expressly stated in his
brief, defendant seems to rely on an equitable estoppel theory.
An essential element of . . . [equitable estoppel] is reasonable
reliance . . . . Adkins v. Adkins, 82 N.C. App. 289, 291, 346S.E.2d 220, 221 (1986). Even taking defendant's statement in his
affidavit as true, defendant's reliance on an individual Board
member's approval of the altered deck as though the entire Board of
Directors approved it is unreasonable, especially since it appears
defendant knew that he needed the entire Board's approval because
he obtained the Board's approval for the initial design of the
deck. Accordingly, we disagree with defendant's contention.
Defendant contends the trial court erred by applying the North
Carolina Planned Community Act to the Association to satisfy the
lien of the judgment. We dismiss this contention.
Defendant did not properly assign error to this contention.
The North Carolina Rules of Appellate Procedure state that the
scope of review on appeal is confined to a consideration of those
assignments of error set out in the record on appeal . . . . N.C.
R. App. P. 10(a). Here, defendant included two assignments of
error in the record on appeal. Although defendant's contention was
argued in his brief under section III, which included defendant's
contention we discussed above under part II of our opinion, neither
of the assignments of error properly assigned error to this
contention. Accordingly, defendant's contention is dismissed.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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