FRIENDS OF CROOKED CREEK, L.L.C.; MARK BERTRAND; DONNA BERTRAND; SYLVIA T. TERRY; ROBERT F. ZAHN; and MICHELLE R. ZAHN, Plaintiffs,
C.C. PARTNERS, INC. and CROOKED CREEK GOLF LAND LLC, Defendants.
in the Court of Appeals 15 May 2017.
by plaintiffs from order entered 5 August 2016 by Judge G.
Wayne Abernathy in Wake County, No. 15 CVS 7979 Superior
Offices of F. Bryan Brice, Jr., by Matthew D. Quinn, for
Poe Adams & Bernstein LLP, by Russell B. Killen, Jamie S.
Schwedler and Michael J. Crook, for defendant-appellees.
of Crooked Creek, L.L.C., Mark and Donna Bertrand, Sylvia T.
Terry, and Robert F. and Michelle R. Zahn
("Plaintiffs") appeal from an order denying their
motion for summary judgment and granting summary judgment in
favor of Defendants. We affirm.
1992, C.C. Partners, Inc. ("C.C. Partners")
purchased a tract of real property situated in Fuquay-Varina,
North Carolina and sub-divided portions of the property into
single-family residential lots. C.C. Partners intended for
the Crooked Creek subdivision to be developed as a golf
course community, and retained a portion of the property to
construct a golf course. C.C. Partners did not dedicate or
convey the un-subdivided areas to the lot owners or the
homeowner's association, or designate the areas as common
and 1993, C.C. Partners recorded two plats of the
subdivision, which showed the creation of residential lots.
Although the construction of a golf course was contemplated
by C.C. Partners on its retained property, neither of these
plats depicts a golf course. The plats did not set forth any
indication that the property retained by C.C. Partners was to
be restricted to a golf course, or a perpetual amenity or
common area for the benefit of the lot owners. The plats
depict golf-themed street names, such as "Tee Box
Court" and "Shady Greens Drive."
1992 plat contains Note 6, which states and reserves:
"Lots fronting golf course shall allow limited access to
property to retrieve golf balls and or complete maintenance
as required to facilitate play by golfers . . . ." The
plat recorded in 1993 contains Note 6 and a new Note 5, which
states and reserves: "Golf course owner and developer
reserve the right to encroach upon any lot for 10' on all
sides if necessary for utility easement and irrigation
1993, C.C. Partners recorded a Declaration of Covenants,
Conditions and Restrictions for Crooked Creek Subdivision
("the Declaration"). The Declaration makes several
references to a proposed golf course, which are set forth and
1994, C.C. Partners recorded plats showing the creation of
additional residential lots. None of these plats depict or
label any area for a golf course, or contain any indication
that the retained property was to be a perpetual amenity or
common area to either benefit the lot owners or be maintained
by C.C. Partners. The plats include Notes 5 and 6, as stated
above, as well as new Note 11, which states and reserves:
"Lots fronting golf course shall allow golf course
encroachment up to 50 feet from rear or side lot lines to
facilitate golf course construction and play." The
subsequent plats also contain these Notes, although their
designated numbers vary from plat to plat.
1992 to March 1995, C.C. Partners sold lots to builders, who
sold the lots to homeowners. C.C. Partners began construction
of a golf course on a portion of the original tract in 1993.
Partners and subsequent developers heavily marketed the
subdivision as a "golf course community" with an
"18-hole golf course." For example, a marketing
brochure stated the "[i]nitiation fee for membership in
the Crooked Creek Golf Club will be waived for the first 20
home buyers in Crooked Creek."
December 1994, C.C. Partners entered into a contract to sell
undeveloped portions of the Crooked Creek subdivision to
MacGregor Development Company ("MacGregor"), a
party unrelated to this lawsuit. The property to be conveyed
consisted of twenty-four previously subdivided residential
lots and five un-subdivided tracts of land.
preparation for the closing, C.C. Partners had a survey
completed to reflect the property to be sold to MacGregor.
The owners of C.C. Partners testified by affidavit that the
purpose of this survey plat was to provide a legal
description of the property to be sold to MacGregor.
February 1995, C.C. Partners recorded a plat entitled
"Map of Crooked Creek Golf Course and Subdivision,
" which depicts a dash-lined sketch of an 18-hole golf
course, tee boxes, fairways and greens, a driving range, the
clubhouse, and other golf features. The plat also depicts
five bold or hard-lined boundary acreage tracts, labeled
"A, " "B, " "C, " "D"
A, B, C, D and F were conveyed to MacGregor in March 1995,
and MacGregor became the developer of further residential
lots in Crooked Creek. C.C. Partners remained the owner and
developer of the golf course. Construction of the golf course
and clubhouse was completed after the conveyance to MacGregor
in March 1995.
deed from C.C. Partners to MacGregor references the 1995
plat, which depicts the dash-lined outline of the golf course
and adjoining properties. The deed does not include any use
restrictions on the property retained by C.C. Partners.
began to subdivide tracts A, B, C, D and F to create new
residential lots and sold the lots to buyers. MacGregor was
solely responsible for the marketing and sale of the lots in
Crooked Creek. However, according to the deposition of C.C.
Partners' plurality shareholder, C.C. Partners and
MacGregor were "trying to work together . . . to sell
golf and sell lots" in the years that followed the
transfer of the residential lots to MacGregor.
example, an area inside the golf clubhouse featured
advertisements and a sales center for homes for sale within
Crooked Creek. Advertisements for homes for sale referenced
the golf course, and promoted "golf course
homesites." Around 2005, C.C. Partners issued a flyer
that offered a $1, 000.00 discount on golf club initiation
fees "to Crooked Creek Homeowners."
Creek Residential Properties, LLC recorded several plat maps
subsequent to C.C. Partners' 1995 conveyance of tracts A,
B, C, D and F. Those maps depict subdivision of the tracts
purchased by MacGregor, and show land abutting ...