ANN HARDY PORTER, TRUSTEE OF THE ANN HARDY PORTER LIVING TRUST, DATED MARCH 9, 2000; JANET S. WILKINS; MARY ANN CASE; VIRGINIA W. HAYES; SYBEL B. HOFFMAN; KATHLEEN HANDLEY, TRUSTEE OF THE HANDLEY LIVING TRUST; PHILLIPS CUTRIGHT AND KAREN CUTRIGHT; KARL LEBER AND HEIDI A. LEBER; PHYLLIS LANGTON, TRUSTEE OF THE DR. PHYLLIS A. LANGTON REVOCABLE TRUST, DATES MAY 1 2001; Plaintiffs,
BEAVERDAM RUN CONDOMINIUM ASSOCIATION, Defendant.
in the Court of Appeals 25 January 2018.
by Plaintiffs from order entered 31 March 2017 by Judge Alan
Z. Thornburg in Buncombe County No. 15-CVS-04173 Superior
Hendon Carson Crow & Saenger, P.A., by E. Thomison
Holman, for the Plaintiffs.
Cranfill Sumner & Hartzog LLP, by John W. Ong, for the
are owners of residential condominiums in Beaverdam Run (the
"Community"), located in Buncombe County.
Plaintiffs brought this action seeking a declaration that the
Community's owners' association, Beaverdam Run
Condominium Association (the "Association"), is
required to maintain flood insurance for its buildings
located in a flood zone. The trial court entered an order
granting summary judgment in favor of the Association and
denying Plaintiffs' request for declaratory judgment. For
the following reasons, we reverse and remand for action
consistent with this opinion.
Association has a board of directors elected by the owners of
units in the Community and is governed by a declaration (the
"Declaration"). The Community consists of sixty-six
(66) buildings. Five of these buildings are located within a
flood zone as designated by the Federal Emergency Management
Agency ("FEMA"). Each Plaintiff owns a unit in one
of these five buildings.
approximately 2006-2012, the Association maintained flood
insurance on each of the five buildings containing
Plaintiffs' units. In 2012, the Association decided not
to renew the flood insurance policy, citing concerns
regarding cost and the allocation of the expense among the
other members of the Association. The Association notified all
owners in the Community of its decision not to renew the
flood insurance policy in a detailed letter, in accordance
with the terms of the Declaration. The Association declined
Plaintiffs' subsequent requests that the Association
resume purchasing and maintaining flood insurance on the five
September 2015, Plaintiffs filed a complaint seeking a
declaratory judgment from the trial court regarding the
Association's obligation to maintain flood insurance. The
Association filed an answer and a motion for summary
March 2017, the trial court entered an order granting the
Association's motion for summary judgment and dismissing
Plaintiffs' complaint with prejudice. Plaintiffs timely
Standard of Review
review a trial court's grant of summary judgment de
novo. Forbis v. Neal, 361 N.C. 519, 524, 649
S.E.2d 382, 385 (2007). Summary judgment is proper if
"the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law." N.C. R. Civ. P. 56.
sole argument on appeal is that the trial court erred in
granting the Association's motion for summary judgment,
contending that the Association does, in fact, have a duty ...