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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1205

NORTH CAROLINA COURT OF APPEALS

Filed: 5 June 2007

PHILLIP EDWARD FOWLER,
    Plaintiff,

    v .                                  Jackson County
                                         No. 04 CVS 581
MARIE R. NETZOW, and
TLKKB Holdings, LLC,
    Defendants.

    Appeal by plaintiff from judgment entered 30 January 2006 by Judge J. Marlene Hyatt in Jackson County Superior Court. Heard in the Court of Appeals 11 April 2007.

    Moody & Brigham, PLLC, by Fred H. Moody, Jr., and Justin B. Greene, for plaintiff appellant.

    Adams Hendon Carson Crow & Saenger, P.A., by Martin K. Reidinger and George Ward Hendon, for defendant appellees.

    McCULLOUGH, Judge.

    Plaintiffs appeal from a final judgment of the trial court. We affirm.

FACTS
    Phillip Edward Fowler (“plaintiff”) acquired a tract of real property consisting of approximately 78 acres of land in Jackson County, North Carolina. The property is adjacent to Lake Glenville, which is owned by Duke Energy Corporation (“Duke Energy”), formerly Nantahala Power and Light, Inc. Duke Energy also owns a strip of land surrounding Lake Glenville which consists of 10 vertical feet of increase in elevation. This area of increaseis as narrow as 10 feet in width at certain locations around the lake, and at certain points is in excess of 100 feet in width.
    On or about 2 July 1998, plaintiff conveyed to PRN Investments, Inc. (“PRN”) a subdivided portion of the 78-acre property (“the Stillpoint Property” or “Stillpoint”) consisting of
approximately 16 acres. At the time of the conveyance from plaintiff to PRN, the Stillpoint Property was subdivided into 18 lots. Preliminary negotiations for the purchase were conducted by plaintiff, Paul Netzow and defendant Marie Netzow, acting for PRN, and each party's respective real estate brokers and agents. Paul Netzow was the sole shareholder and officer of PRN, and Marie Netzow was Paul Netzow's wife.
    The deed from plaintiff to PRN contained the following restriction:
        Grantee and/or owners of subdivided lots of subject property shall have the right to locate docks on subject property after obtaining approval by Nantahala Power and Light Company. One dock may be located on each of Lots 1-10 at such places as Grantee chooses. Only four docks may be located on the remaining property as follows: One dock may be located as close as possible to the common boundary line of Lots 11 and 12; one dock may be located as close as possible to the common boundary line of Lots 13 and 14; one dock may be located as close as possible to the common boundary line of Lots 15 and 16; and one dock may be located as close as possible to the common boundary line of Lots 17 and 18.

    In August and October of 1998, plaintiff received letters from Paul and Marie Netzow asking for a release or modification of the deed restrictions relating to boat docks for Lot No. 12 ofStillpoint, so as to allow that lot to have its own dock. This request was denied. On or about 4 February 2000, PRN conveyed Lot 12 of Stillpoint to Paul R. Netzow and Marie R. Netzow by deed. Paul Netzow died on 27 July 2002, and Marie Netzow inherited a fee simple interest in Lot 12.
    Following the death of Paul Netzow, Marie Netzow desired to sell her interest in Lot 12 of Stillpoint. She was advised by her real estate agent that placing a boat dock at the shoreline of the property would improve its marketability. However, a dock was already in place on Lot 11. Marie Netzow requested that the owners of Lot 11 relocate their existing dock to a point where Lots 11 and 12 meet at the shoreline of Lake Glenville. Her request was denied.     In 2003, Marie Netzow approached Jimmy Fayed about installing a dock adjacent to Lot 12 of Stillpoint. Mr. Fayed sought and received approval from Duke Energy for the installation of a dock at Lot 12 and Dale Mosteller, Lake Manager for Duke Energy, inspected the area of shoreline directly behind Lot 12 and determined a suitable location to place Marie Netzow's dock. Mr. Fayed purchased a dock on behalf of Marie Netzow and moored it upon Duke Energy property adjacent to Lot 12 of Stillpoint.
    Subsequently, plaintiff instituted this action seeking a mandatory injunction requiring Marie Netzow to remove the dock. While the action was pending in the trial court, Marie Netzow conveyed Lot 12 to TLKKB Holdings, LLC, which is owned by Timothy O'Connor and wife Linda O'Connor. The parties stipulated to adding TLKKB as a party defendant to this action. The trial court entereda judgment in favor of defendants on 30 January 2006 and ordered that plaintiff's claim for a mandatory injunction be dismissed. The trial court also declared that the dock placed on Duke Energy property did not violate any restrictive covenants on the Stillpoint Subdivision. Plaintiff appeals.
ANALYSIS
    Plaintiff contends the trial court erred in regard to its findings of fact and conclusions of law. We disagree.
    Plaintiff assigns error to the following portions of findings of facts 19 and 20 of the trial court:
            19. It was the intent of the parties in the preparation of the restrictions at issue that the restrictions pertain only to the property being conveyed by the Grantor to the Grantee, which property was being subdivided into platted lots. The restriction pertaining to docks was intended to pertain to docks that were constructed so that one terminus of the dock would be located on a platted lot and the other terminus would be located on the lake. It is possible to construct a dock so that one terminus of the dock is located on Lot 12 of the Stillpoint Subdivision and the other is located on the lake, but no part of the dock in question in this case is located on any platted lot in the Stillpoint Subdivision.

            . . . .

            20. [T]he Court finds that regardless of the intent of the parties, the language of the restrictions at issue is not broad enough to restrict docks located on or over land owned by a third party, Duke Energy.

“'The standard by which [the Court of Appeals] review[s] the findings is whether any competent evidence exists in the record to support them.'” Vance Construction Co. v. Duane White Land Corp.,120 N.C. App. 401, 405, 462 S.E.2d 814, 816 (1995) (citation omitted).
    We have carefully reviewed the evidence in the record, and we conclude that the challenged findings are supported by competent evidence. The restriction at issue reads:
        Grantee and/or owners of subdivided lots of subject property shall have the right to locate docks on subject property after obtaining approval by Nantahala Power & Light Company. One dock may be located on each of Lots 1-10 at such place as Grantee chooses. Only four docks may be located on the remaining property as follows: One dock may be located as close as possible to the common boundary line of Lots 11 and 12; one dock may be located as close as possible to the common boundary line of Lots 13 and 14; one dock may be located as close as possible to the common boundary line of Lots 15 and 16; one dock may be located as close as possible to the common boundary line of Lots 17 and 18.

(Emphasis added.) Plaintiff asserts the parties intended to restrict the number of docks on Lake Glenville which would include the strip of land owned by Duke Energy, not just the Stillpoint property. “Ordinarily, the parties' intent must be ascertained from the deed or other instrument creating the restriction.” Runyon v. Paley, 331 N.C. 293, 305, 416 S.E.2d 177, 186 (1992). “However, when the language used in the instrument is ambiguous, the court, in determining the parties' intention, must look to the language of the instrument, the nature of the restriction, the situation of the parties, and the circumstances surrounding their transaction.” Id. In addition, “[t]he instrument must be construed most favorably to the grantee, and all doubts andambiguities are resolved in favor of the unrestricted use of the property.” Stegall v. Housing Authority, 278 N.C. 95, 100, 178 S.E.2d 824, 828 (1971).
    Here, the evidence supporting the trial court's findings is the deed itself. The term “subject property” is used many times throughout the deed. Each time it clearly refers to the eighteen lots that plaintiff conveyed to PRN, not the strip of property owned by Duke Energy. The strip of property owned by Duke Energy is described in the deed as the property owned by Nantahala Power & Light company below the 3110-foot contour line adjoining subject property. The strip of land owned by Duke Energy cannot be a part of the subject property if it adjoins the subject property. Therefore, the restriction at issue does not limit docks on the strip of land owned by Duke Energy, and we disagree with plaintiff.

                
    Plaintiff also contends the trial court erred regarding its conclusions of law. In addition, plaintiff asserts that one of the trial court's findings of fact was actually a conclusion of law, and assigns error to it. We disagree.
    The challenged conclusions state:
            20. . . . regardless of the intent of the parties, the language of the restrictions at issue is not broad enough to restrict docks located on or over land owned by a third party, Duke Energy.

            . . . .

            1. The restrictive covenant in question regarding docks pertains only to land that was conveyed by the Plaintiff to PRN Investments, Inc. and which land was subdivided and plattedinto lots that comprise the Stillpoint Subdivision.

            2. The restrictive covenant in question regarding docks does not pertain to any land outside of the platted lots of the Stillpoint Subdivision.

            3. The restrictive covenant in question regarding docks does not govern any action that can or cannot be taken upon the property belonging to Duke Energy.

            4. The dock at issue in this case that has been placed at the shoreline of Lake Glenville near Lot 12 of Stillpoint Subdivision on the property of Duke Energy does not violate the restrictions at issue herein.

            5. The owner or owners of Lot 12 of Stillpoint Subdivision may maintain, construct or have constructed at the shoreline of Lake Glenville such docks as Duke Energy may approve, without the need for any approval by the Plaintiff.

We review conclusions of law made by the trial court de novo on appeal. Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 336, 477 S.E.2d 211, 215 (1996). We determine that the trial court's conclusions of law are supported by the findings of fact. Accordingly, we disagree with plaintiff.
    Finally, plaintiff contends the trial court erred when it declared the dock in question did not violate any restrictive covenant applicable to the Stillpoint Property. Plaintiff asserts that, since none of the parties requested declaratory relief by pleading or motion, the trial court's order of declaratory relief should be vacated. However, the trial court's statement is essentially a summation of its conclusions of law and involves anissue that was raised in plaintiff's complaint. Therefore, we disagree with plaintiff.
    Affirmed.
    Judges CALABRIA and STROUD concur.
    Report per Rule 30(e).

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