FEDERAL POINT YACHT CLUB ASSOCIATION, INC., a North Carolina Corporation, Plaintiff,
GREGORY MOORE, Defendant
Heard in the Court of Appeals November 5, 2013.
Counsel Amended April 9, 2014.
New Hanover County. No. 12 CVS 190.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Steven M. Sartorio, and the Law Offices of G. Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr., for plaintiff-appellee.
Chleborowicz Law Firm, PLLC, by Christopher A. Chleborowicz, for defendant-appellant.
For Gregory Moore, Defendant-Appellant: Ms. Dawn Walton, Attorney at Law, CHLEBOROWICZ & THERIAULT, LLP, Wilmington, NC.
BRYANT, Judge. Judges McGEE and STROUD concur.
Appeal by defendant from orders entered 18 September and 18 October 2012 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 5 November 2013.
An association has representational standing to bring a lawsuit provided at least one of its members has suffered imminent harm. Where a defendant fails to join necessary parties to his action, a dismissal of his claim pursuant to N.C. R. Civ. P. 12(b)(7) is appropriate. Where a restrictive covenant must be enforced, a permanent injunction is the proper remedy. A trial court has discretion to award injunctive relief upon its weighing and balancing of the parties' equities. However, a permanent injunction that prohibits contact between defendant and others without establishing specific boundaries as to when, where, and how the injunction applies is overly broad.
Plaintiff Federal Point Yacht Club Association (" FPYC" ) is a residential water-access community with appurtenant marina facilities located in Carolina Beach. FPYC has eighteen residential lots, a clubhouse, pool, and marina with 110 boat slips. FPYC is governed by a recorded Declaration of Covenants, which is enforced by a board comprised of community members. Defendant Gregory Moore owns a residence and two boat slips within FPYC.
On 12 August 2010, Moore filed a complaint against FPYC, members of FPYC's board, and FPYC's dockmaster Randy Simon (" Simon" ). Moore's complaint alleged that FPYC fined him excessively, FPYC and Simon engaged in unfair and deceptive trade practices, Simon abused legal process, and FPYC and its board were negligent in hiring Simon as dockmaster. Moore sought compensatory, treble, and punitive damages. FPYC filed a motion to dismiss for failure to join all necessary parties pursuant to North Carolina Rules of Civil Procedure, Rule 12(b)(7). On 11 October 2010, this motion was granted by Judge W. Allen Cobb, Jr., dismissing Moore's complaint without prejudice.
On 4 March 2011, FPYC's board conducted a hearing regarding Moore's violations of FPYC's rules. In a final decision issued 22 April 2011, FPYC's board found that Moore had damaged water faucets on one of
FPYC's docks; damaged the bathrooms in the clubhouse; allowed his dog to run without a leash on FPYC property; committed acts of harassment and intimidation against FPYC board members, residents, and guests; impermissibly moved a concrete parking bumper; and did not follow FPYC's rules when parking and storing a boat trailer. Moore was assessed a fine of $496.80 which was paid.
On 5 November 2011, FPYC's board conducted a second hearing regarding Moore's continued violation of FPYC rules. In the second hearing, the FPYC board found that Moore continued to violate association rules despite having agreed to comply with the board's decision of 22 April. Specifically, the FPYC board found that Moore violated FPYC's rules regarding threatening and/or offensive conduct, signage, property damage, dockage, parking, bike riding on docks, and keeping his dog on a leash. Moore was assessed total fines of $550.00 and his FPYC membership rights were suspended for a period of sixty days.
On 17 January 2012, FPYC filed an action against Moore (hereafter " defendant" ) seeking a temporary restraining order, a preliminary injunction and a permanent injunction restraining him from continuing to violate FPYC's rules. On 25 January, defendant filed an answer and counterclaims for unfair and deceptive trade practices; abuse of process; negligent hiring, retention, and supervision of dockmaster; negligent infliction of emotional distress; intentional infliction of emotional distress; and punitive damages. On 26 March 2012, FPYC filed a response to defendant's counterclaims, including a motion to dismiss for failure to join all necessary parties pursuant to N.C. R. Civ. P. 12(b)(7), as well as for res judicata and collateral estoppel. Defendant filed a motion to dismiss FPYC's claims pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7), and 12(c) on 25 July 2012.
On 18 September 2012, Judge Cobb granted FPYC's motion and dismissed defendant's counterclaim with prejudice based on defendant's failure to join necessary parties. That same day, Judge Cobb entered a second order denying defendant's motions to dismiss FPYC's complaint pursuant to N.C. R. Civ. P. 12(b)(1), (6), (7), and 12(c), and for FPYC's lack of standing to sue on behalf of its members.
On 28 September 2012, defendant filed a new motion to dismiss pursuant to N.C. R. Civ. P. 12(b)(6) on grounds that FPYC already had an adequate remedy at law and thus, an injunction was unnecessary. On 5 October 2012, FPYC filed motions for summary judgment and for permanent injunction against defendant. On 15 October 2012, Judge Cobb heard FPYC's motions for summary judgment and permanent injunction and defendant's second motion to dismiss. On 18 October 2012, Judge Cobb issued an order granting FPYC's motions for summary judgment and permanent injunction and denying defendant's motion to dismiss. Defendant appeals.
On appeal, defendant raises the following issues: whether the trial court erred (I) in its first 18 September 2012 order denying defendant's motion to dismiss; (II) in its second 18 September 2012 order dismissing defendant's counterclaim; (III) in its 18 October 2012 order denying defendant's motion to dismiss and granting FPYC's motions for summary judgment and permanent injunction; (IV) in its 18 October 2012 order granting FPYC's motions for summary judgment and permanent injunction where the permanent injunction applied to undefined persons and places; and (V) in its 18 October 2012 order granting FPYC's motion for summary judgment.
Defendant argues the trial court erred in its 18 September 2012 order denying
defendant's motion to dismiss pursuant to N.C. R. Civ. P. 12(b)(1), (b)(6) and (b)(7). We disagree.
A motion to dismiss under Rule 12(b)(1) for lack of jurisdiction is reviewed by this Court de novo. Fuller v. Easley, 145 N.C.App. 391, 395, 553 S.E.2d 43, 46 (2001). " For a motion to dismiss based upon Rule 12(b)(6), the standard of review is whether, construing the complaint liberally, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Strates Shows, Inc. v. Amusements of Am., Inc., 184 N.C.App. 455, 460, 646 S.E.2d 418, 423 (2007) (citation and quotation omitted).
In its first 18 September 2012 order, the trial court observed that defendant filed the following motions:
1. A Motion to Dismiss [FPYC]'s Complaint filed pursuant to Rules 12(b)(1) and 12(c) of the North Carolina Rules of Civil Procedure because [FPYC] . . . lacked standing to bring the claim(s) set forth in its Complaint because (a) the FPYC does not have standing to seek permanent injunctions on behalf of an individual, (b) even if the FPYC, as a non-profit corporation, has standing to bring an action as set forth and described in its Complaint, each and every member on whose behalf such relief is sought must also have standing to seek the same relief and that those individual members had previously given up their rights to seek the remedies set forth in the Complaint, and (c) the relief sought by [FPYC] in its Complaint has been, at least in part, rendered moot.
2. A Motion to Dismiss [FPYC]'s Complaint filed pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure because the basis that [FPYC] (a) did not affirmatively plead conditions precedent to the filing of its Complaint and (b) [FPYC] lacked standing to bring the claims set forth in its Complaint.
3. A Motion to Dismiss [FPYC]'s Complaint filed pursuant to Rule 12(b)(7) of the North Carolina Rules of Civil Procedure because [FPYC] failed to join necessary and indispensable parties to the action.
The trial court then held " that Defendant's Motions to Dismiss the remaining claims set forth in [FPYC's] Complaint filed pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7) and 12(c) are hereby DENIED." Defendant contends that the trial court erred in denying his motions to dismiss under Rules 12(b)(1) and (b)(6) because FPYC lacked standing to represent its members. " A lack of standing may be challenged by motion to dismiss for failure to state a claim upon which relief may be granted." Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351 N.C. 331, 337, 525 S.E.2d 441, 445 (2000) (citation omitted). " Standing refers to whether a party has a sufficient stake in an otherwise justiciable controversy such that he or she may properly seek adjudication of the matter." Am. Woodland Indus. v. Tolson, 155 N.C.App. 624, 626-27, 574 S.E.2d 55, 57 (2002) (citations omitted). To have standing, a party must be a " real party in interest." Energy Investors Fund, 351 N.C. at 337, 525 S.E.2d at 445.
Defendant specifically argues that FPYC lacked standing because fourteen members of FPYC dismissed their no-contact claims against him with prejudice. An association like FPYC has representational standing for its members if: " (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 130, 388 S.E.2d 538, 555 (1990) (citation omitted). " The clear language of River Birch . . . does not require a threat of immediate injury to each and every individual member of the association in order for the association to have standing." State Emps. Ass'n of N.C. v. State, 154 N.C.App. 207, 219, 573 S.E.2d 525, 533 (2002) (Tyson, J., dissenting), overruled on other grounds by State Emps. Ass'n of N.C. v. State, 357 N.C. 239, 580 S.E.2d 693 (2003).
Here, defendant contends that FPYC lacked representational standing because by voluntarily dismissing their no-contact orders with prejudice, fourteen of FPYC's members forfeited their individual standing because they no longer suffered from an immediate harm caused by defendant. Defendant's argument lacks merit for, as previously discussed, FPYC had standing as its own corporate entity to bring suit, regardless of the claims brought by its fourteen individual members. See Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ( " An association may have standing in its own right to seek judicial relief from injury to itself and to vindicate whatever rights and immunities the association itself may enjoy." ). Furthermore, our Supreme Court has held that not every member of an association must have suffered an immediate harm in order for the association to have standing to seek relief from such harm. See River Birch, 326 N.C. at 130, 388 S.E.2d at 555. Accordingly, the trial court did not err in its first 18 September 2012 order denying defendant's motion to dismiss pursuant to N.C. R. Civ. P. 12(b)(1) and (b)(6) for FPYC's lack of representational standing.
Defendant further argues that FPYC lacked standing because the dismissal with prejudice of fourteen no-contact orders by FPYC members against him served as res judicata to bar any claims by FPYC against him. On 13 January 2012, fourteen individual members of FPYC, including FPYC's board of directors and their respective spouses as well as FPYC's dockmaster and his wife, filed no-contact orders for stalking or nonconsensual sexual conduct against defendant. These no-contact complaints stated that:
Defendant has repeatedly tormented, terrorized, or terrified the Plaintiff, a member of the Board of Directors (" Board" ) of [FPYC] or a spouse thereof, with the intent of placing the Plaintiff in reasonable fear for the Plaintiff's safety or the safety of the Plaintiff's immediate family or close personal associates by engaging in hostile, threatening behavior directed toward the Board, FPYC's Dockmaster, and/or the spouses of the same. By way of example and not limitation, Defendant has (i) trespassed upon the land of . . . the president of the Board, and sprayed a blood-like substance all over the fence, gate, and steps of his home (1/2/12); (ii) used a weapon or other dangerous instrument to slash the tires of the spouse of FPYC's Dockmaster (12/31/11); (iii) threatened physical violence and/or bodily injury against FPYC's Dockmaster (10/18/11); and, (iv) threatened to kill FPYC's Dockmaster (7/10/10). There are many more examples. All of Defendant's conduct, regardless of to whom it was immediately directed, was intended to place and did place the Board's members and their spouses in reasonable fear for their safety and/or the safety of their family and/or close personal associates, as it was in apparent retaliation for the Board's censuring and fining Defendant for his repeated violations of the Rules and Regulations and Declarations of FPYC. Defendant's acts of aggression are escalating, and, given Defendant's frequent apparent intoxication and/or inability to control himself, Plaintiff fears for the Plaintiff's safety and the safety of the Plaintiff's immediate family and close personal associates.
All fourteen no-contact orders were voluntarily dismissed with prejudice on 23 July 2012.
Meanwhile, on 17 January 2012, five days after fourteen FPYC members filed no-contact orders against defendant, FPYC filed as a corporation a complaint against defendant alleging that:
14. [Defendant], while a member of [FPYC], has repeatedly violated various provisions of the Declaration, By-Laws, and/or ...