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Inc. v. Isenhour

Court of Appeals of North Carolina

August 1, 2017

TANGLEWOOD PROPERTY OWNERS' ASSOCIATION, INC., Plaintiff,
v.
BRANDON WAYNE ISENHOUR; ROBERT MALLANEY and wife MARY MALLANEY; VICKIE CORBETT; LARRY SPAINHOUR and wife LINDA SPAINHOUR; FRANK W. REGISTER and wife LINDA FAYE REGISTER; HOMER BEST; BRENDA GLENN; BERT ANTHONY MCGEE and wife DARLENE MCGEE, Defendants.

          Heard in the Court of Appeals 7 June 2017.

         Appeal by Plaintiff from order entered 11 February 2015, judgment entered 7 March 2016, and order entered 23 August 2016 by Judge Pauline Hankins in Brunswick County District Court. Brunswick County, No. 14 CVD 888

          Hodges, Coxe, Potter & Phillips, LLC, by Bradley A. Coxe, for Plaintiff-Appellant.

          No brief filed for Defendant-Appellees.

          HUNTER, JR., Robert N. Judge.

         Tanglewood Property Owners' Association, Inc. ("Plaintiff") appeals an 11 February 2015 order denying Plaintiff's motion for summary judgment and a 7 March 2016 judgment. Plaintiff also appeals a 23 August 2016 order denying Plaintiff's motion for judgment notwithstanding the verdict and to amend judgment.

         On appeal, Plaintiff contends the trial court erred in two respects: (1) finding an easement by necessity, limited to the roads required for ingress and egress, because Frank W. Register and Linda Faye Register ("Defendants") possess easements appurtenant in all "streets, ditches, public areas, ICW[1] water access and boat ramp" pursuant to the Tanglewood West plat; and (2) concluding Defendants' pro rata share for the 2013 maintenance of their easements could not be calculated. Plaintiff further contends the 2013 pro rata share per lot for property owners in Tanglewood West totaled $133 per lot and Defendants, accordingly, are responsible for $266 for their two lots.[2] We reverse and remand.

         I. Factual and Procedural History

         On 20 May 2014, Plaintiff filed a declaratory judgment action seeking declaration of parties'[3] rights and obligations over "the streets, ditches, public areas, ICW water access and boat ramp" located in Tanglewood "pursuant to the plats recorded with the Brunswick County Register of Deeds" and costs attendant thereto. The complaint alleges the cost of maintaining all easements in Tanglewood for 2013 totaled $83, 269[4] and each property owner's pro rata share per lot, based upon 652[5]non-developer lots, totaled $128.[6] In sum, Plaintiff alleged Defendant was liable for $281, which represented their pro rata share, plus a $25 late fee. Plaintiff sought injunctive relief until such time Defendants remitted $281.[7]

         On 28 July 2014, Defendants filed an answer, admitting "owner[ship] of the dominant estate over the streets, ditches, public areas, ICW water access and boat ramp" pursuant to the Tanglewood West plat and by prescription. However, Defendants denied any duty to maintain the easements. Defendants pointed to Plaintiff's alleged noncompliance with the North Carolina Planned Community Act. Defendants additionally stated that Plaintiff and other property owners "have not been provided a fair portion for maintenance, upkeep and operation[, ]" and further alleged, "[m]embers have more benefits and pay less than this lawsuit is requiring of the Defendants."[8]

         On 24 September 2014, Plaintiff moved for summary judgment against Defendants.[9] The trial court held a hearing for the motion for summary judgment on 1 December 2014.

         Plaintiff asserted the following arguments: (1) when property is conveyed by deed, referencing a plat depicting common areas, an easement over the common areas is held by the purchaser; 2) in accordance with the acquired easement rights, the easement holder possesses a duty to maintain their easement, which is irrespective of the easement holder's actual use of the easement; (3) the pro rata share of maintenance is then calculated based upon a per lot basis, with the number of lots determined at the time of conveyance, irrespective of any subsequent lot consolidation; and (4) accordingly, Defendants hold an easement over "the streets, ditches, public areas, intracoastal waterway access, and the boat ramp" pursuant to their deed and possess a duty to maintain their easements based upon ownership of two lots.

         Defendants appeared pro se and presented the following arguments: (1) with the exception of the roads necessary to gain access to their property, they do not use the easements depicted on the plat; (2) use of some of the alleged easement areas, including the boat ramp and picnic shelter, is restricted to member use; 3) they are willing to contribute to the maintenance of the roads, but as a result of this dispute have been "forced to join an association [they] don't want to be a member of"; (4) members are assessed less and afforded greater benefits within the community, with their dues calculated on a per owner basis and not on a per lot basis; and (5) their two lots were combined into one per the "direction of the Brunswick County Central Permitting[.]"[10]

         On 11 February 2015, the trial court denied Plaintiff's motion for summary judgment against Defendants Register and Corbett. The matter proceeded to a bench trial on 16 February 2016.

         Plaintiff called one witness, Jeremy Bass, Vice President of TPOA. Bass explained the Tanglewood subdivision encompasses three phases: Tanglewood East, Tanglewood North, and Tanglewood West. TPOA is a voluntary property owners' association, established in 1985 to maintain Tanglewood's common areas and private streets. Following establishment of TPOA, the developer of the Tanglewood subdivision deeded all common areas and private roads to TPOA. While there are some areas within Tanglewood reserved for members only, all property owners may use the boat ramp, parking lot, and private streets.[11]

         Tanglewood subdivision encompasses both public roads, maintained by the North Carolina Department of Transportation, and private roads, maintained by TPOA. Although Plaintiff compiled a list of Tanglewood's roads, some roads, including Lake Peggy Circle, the road Defendant resides on, appears to be missing from the list. Despite this, Lake Peggy Circle is depicted on the Tanglewood West plat.[12]

         From 1985 until 2013, Plaintiff paid for the maintenance of all common areas and private streets, and non-members were not required to contribute to maintenance of these areas. However in 2013, the board of TPOA consulted with an attorney to determine "if there was a way to have non-members pay for their fair share[.]" The board acquired a breakdown of the estimated cost of maintaining all common areas and private streets within Tanglewood East, Tanglewood West, and Windy Point Park. The estimated cost of maintaining the easement areas, excluding any areas restricted to member use only, totaled $83, 269. The board ascertained the total number of nondeveloper lots, 652, in Tanglewood East, Tanglewood North, Tanglewood West, and Windy Point Park from the original plats, irrespective of any subsequent purchases that may have resulted in lots being combined. Additionally, although members of TPOA were not assessed an additional maintenance fee because their membership dues encompass maintenance costs, the total number of lots included both member and non-member lots. The maintenance cost per lot was then calculated by dividing the total cost of maintenance by the total number of non-developer lots, equaling approximately $128 per lot.[13]

         Plaintiff sent a demand letter to all non-member property owners, including Defendant, on or about 31 December 2013, seeking pro rata contribution of $128 per lot owned. Plaintiff assessed Defendants $256 pursuant to their ownership of lots 298 and 299 in Tanglewood West; however, Defendants failed to remit payment. A second letter requesting payment went unanswered.

         Following Bass's testimony, Plaintiff moved for a directed verdict. Plaintiff argued Defendants possessed an easement pursuant to the Tanglewood West plat and, accordingly, possess a duty to maintain their easement. Plaintiff further contended, if the trial court determined Defendant possessed an easement over Tanglewood East, Tanglewood West, and Windy Point Park, Defendant's pro rata share of maintenance costs would be $148 per lot. Alternatively, if the trial court construed an easement only over Tanglewood West and Windy Point Park, Defendant's pro rata share would be $134 per lot.[14] The trial court denied Plaintiff's motion for directed verdict.

         Mr. Register testified for the defense, and largely narrated his testimony. He and Mrs. Register have resided in the Tanglewood subdivision for approximately twenty years. They elected to be members of TPOA for approximately ten years[15]; however, they since withdrew from membership. They did not enter into any agreement regarding any easements or associated duty of maintenance. However, their deed does reference the Tanglewood West plat, which depicts the boat ramp, parking lot, and Lake Peggy Circle. Although they possess easements "over streets, ditches, public areas, intracoastal water access and a boat ramp that are owned by the plaintiff, Tanglewood", he disputed their duty to maintain these areas.

         Defendants received Plaintiff's first demand letter, which "said it was for road usage." The letter did not mention easements, and Defendants refused to pay because they were "entitled to the right of way to [their] property." Defendants then received a second demand letter from Plaintiff's attorney, specifically asserting Defendants possessed easements in common areas and the roads in Tanglewood. However, Defendants did not have access to these areas. Defendants maintained their property, and Plaintiff has not provided any maintenance over their property. He believed Plaintiff's actions are "criminal" and he "cannot understand how [Plaintiff] can just come . . . take money . . . for something that [they have] not agreed to or even had any say-so in."

         On 7 March 2016, the trial court entered judgment and concluded the following: (1) Defendants do not possess any easement "in the private streets, ditches, boat ramp, ICW water access and parking lots in Tanglewood West" pursuant to their general warranty deed or the Tanglewood West plat; (2) Defendants possess an easement by necessity over Lake Peggy Circle and West Tanglewood Drive SW to gain access to their property; (3) Defendants possess "a duty to provide their reasonable pro rata share" for the maintenance of their easement over Lake Peggy Circle and West Tanglewood Drive SW; (4) Defendants do not possess any easement over "any other private street, ditch, boat ramp, ICW water access, parking lot, pier, gazebo, or any other common area including those shown on the plats of Tanglewood West, Tanglewood East, and Windy Point Park" and are, therefore, not liable for maintenance of those areas; (5) based on the evidence presented, Defendants' pro rata share for the 2013 maintenance of their easements cannot be determined and Defendants are, therefore, not liable to Plaintiff for the 2013 maintenance of their easement; and (6) Defendants, or their successors in title, shall pay for their "annual, reasonable pro rata share of the ...


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