ASHEVILLE LAKEVIEW PROPERTIES, LLC PETER PINHOLSTER, JR., et al., Plaintiffs,
LAKE VIEW PARK COMMISSION, INC., ROBERT H. FARBREY, et al., Defendants.
in the Court of Appeals 9 August 2016.
by plaintiffs from orders entered 1 and 17 July 2015 by Judge
Marvin P. Pope, Jr., in Buncombe County Superior Court, No.
15 CVS 2009
and Smith, P.A., by Grant B. Osborne and Alexander C. Dale,
Deutsch & Gottschalk, P.A., by Tikkun A.S. Gottschalk and
Robert J. Deutsch, for defendant-appellees.
plaintiffs' underlying claims are barred by statutes of
limitations, the Declaratory Judgments Act will not allow
relief, and therefore, we affirm the trial court order
granting defendants' motion to dismiss pursuant to Rule
May 2015, plaintiffs Asheville Lakeview Properties, LLC;
Peter Pinholster, Jr.; Jennifer Pinholster; and John K.
Mascari filed a complaint in Buncombe County Superior Court
against defendants Lake View Park Commission, Inc. (the
Commission); Robert H. Fabrey and Anne Robinson, as the 1996
Commissioners of the Commission (collectively, the "1996
Commissioner defendants"); and Mike Nery, Barbara Hart,
Gary Ross, Kevin Saum, and Keith Pandres (all of whom are
collectively referenced as the "defendants")
seeking an order canceling a 1996 deed, a declaratory
judgment against the levy of assessments, a declaratory
judgment against compelled membership in the Commission for
Lake View Park lot owners, and a declaratory judgment
directing that monetary assessments be held in a constructive
trust in favor of the lot owners.
complaint describes Lake View Park as a residential
subdivision surrounding a lake (Beaver Lake) in Asheville.
The lots which plaintiffs now own were described in a deed
filed with the Register of Deeds in the Buncombe County
Registry in 1938. That deed contains express covenants
obligating each property owner to pay the Park
Commission an assessment for preservation,
improvement, and repair of the public areas-sidewalks,
parkways, public streets, and driveways- and establishing
that the lot owners would annually elect three commissioners
to administer the public property and a treasurer to disburse
funds as directed. In 1942, a deed was filed conveying Beaver
Lake and certain adjacent real property (the "trust
property") to the Park Commission and directed that
those elected members of the Park Commission and their
successors hold the deeded property "in trust to be used
for park purposes for the benefit of the owners of lots in
the Lake View Park Subdivision." Then, in 1983, articles
of incorporation were filed with the North Carolina Secretary
of State for the Commission.
[T]he Commission is formed . . . to enhance and to preserve
the beauty and quality of the Lake View Park Subdivision . .
. . All areas located in the geographical section of Buncombe
County known as Lake View Park . . . shall be deemed the
geographical area within which the Commission shall exercise
Pursuant to the articles of incorporation, the Commission was
empowered to "perform all of the duties as set forth in
the Lake View Park deeds" as well as "[f]ix, levy
and collect property assessments." The articles further
provided that " '[a]ll property owners of Lake View
Park shall be members' of the [Commission]." In
1996, a deed was filed with the Buncombe County Register by
the 1996 Commissioner defendants and three others [E.H.
Lederer, John F. Barber, M.D., and John M.
Johnston]. "The express purpose of the 1996 Deed
was 'to transfer all real estate of the previously
unincorporated Lake View Park Commission' to [the newly
incorporated Commission], which 'real estate'
encompasses all of the Trust Property."
on the Commission's website, on 20 October 2014, was a
plan to assert possession of the trust property that lies
adjacent to plaintiffs' properties to construct a
"south trail" to run between plaintiffs'
property lots and the lake. In their action for declaratory
judgment, plaintiffs alleged the Commission has no authority
to levy assessments against property owners or to build and
maintain a trail on the trust property, because the
Commission does not hold lawful title to the property.
Plaintiffs sought equitable relief in the form of
invalidating the 1996 deed.
allege that neither the 1938 deed nor 1942 deed authorized
the Commissioners to convey title of the deeded trust
property of Lake View Park, assign the right to collect
assessments from Lake View Park lot owners, or to increase
the assessments to more than "ten cents per front foot
of lot [(as set out in the 1938 deed)]."
June 2015, the Commission moved to dismiss the complaint
pursuant to Rule 12(b)(6) asserting statute of limitations
defenses. The Commission asserted its possession of Lake View
Park has been "actual, open, hostile, exclusive, and
continuous" since at least 1996, if not 1983. In its
12(b)(6) motion to dismiss, the Commission also noted
"[p]laintiffs admit that [the Commission] was formed on
December 15, 1983, and recite portions of [the
Commission's] Articles of Incorporation showing that [the
Commission] has 'exercised its authority' over Lake
View Park since 1983."
a hearing in Buncombe County Superior Court before the
Honorable Marvin P. Pope, Jr., Judge presiding, Judge Pope
entered an order on 1 July 2015 granting defendants'
motion to dismiss "as to every claim for relief set
forth in the complaint." Plaintiffs filed a motion for
relief pursuant to Rule 60(b)(6), or alternatively, a motion
for reconsideration. The motion was denied by order entered
17 July 2015.
appeal from the orders entered 1 and 17 July 2015, dismissing
plaintiffs' claim and denying plaintiffs' Rule 60(b)
motion and alternative motion for reconsideration.
appeal, plaintiffs' primary argument is that the trial
court erred by granting defendants' 12(b)(6) motion to
dismiss. We disagree. Plaintiffs challenge the ruling that
their complaint was barred by the statute of limitations and
further assert the trial court erred by denying
plaintiffs' motion for 60(b) relief or alternative motion
argue that the trial court erred by granting defendants'
Rule 12(b)(6) motion to dismiss the complaint.
The motion to dismiss under N.C. R. Civ. P. 12(b)(6) tests
the legal sufficiency of the complaint. In ruling on the
motion, the allegations of the complaint must be viewed as
admitted, and on that basis the court must determine as a
matter of law whether the allegations state a claim for which
relief may be granted.
Kohn v. Firsthealth Moore Reg'l Hosp., 229
N.C.App. 19, 21, 747 S.E.2d 395, 397 (2013) (quoting
Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d
611, 615 (1979)).
It is well-settled that a plaintiff's claim is properly
dismissed under Rule 12(b)(6) when one of the following three
conditions is satisfied: (1) the complaint on its face
reveals that no law supports the claim; (2) the complaint on
its face reveals the absence of facts sufficient to make a
valid claim; or (3) the complaint discloses some fact that
necessarily defeats the claim.
Grich v. Mantelco, LLC, 228 N.C.App. 587, 589, 746
S.E.2d 316, 318 (2013) (citation omitted). This Court reviews
a trial court's ruling on a motion for Rule 12(b)(6) de
novo. Id. "Where a trial court has reached the
correct result, the judgment will not be disturbed on appeal
even where a different reason is assigned to the
decision." Eways v. Governor's Island, 326
N.C. 552, 554, 391 S.E.2d 182, 183 (1990).
The statute of limitations may be raised as a defense by a
Rule 12(b)(6) motion to dismiss if it appears on the face of
the complaint that such a statute bars the plaintiff's
action. It is well-established that once a defendant raises
the affirmative defense of the statute of limitations, the
burden shifts ...