               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-447

                               Filed: 19 December 2017

Carteret County, No. 14 CVS 421

JOSEPH P. MCVICKER and wife, SUSAN MCVICKER, Plaintiffs,

              v.

BOGUE SOUND YACHT CLUB, INC., Defendant.


        Appeal by plaintiffs from order entered 4 March 2016 by Judge Benjamin G.

Alford in Carteret County Superior Court. Heard in the Court of Appeals 4 October

2017.


        Harvell and Collins, P.A., by Russell C. Alexander and Wesley A. Collins, for
        plaintiff-appellants.

        Parker Poe Adams & Bernstein LLP, by Michael J. Crook, for defendant-
        appellee.


        TYSON, Judge.


        Joseph and Susan McVicker (“Plaintiffs”) appeal from the trial court’s order

granting summary judgment to the Bogue Sound Yacht Club, Inc. (“Defendant” or

“the Association”). We reverse the trial court’s order and remand to the trial court

for entry of summary judgment in favor of Plaintiffs.

                                    I. Background

        Defendant is a non-profit corporation, which operates the homeowners’

association for the Bogue Sound Yacht Club subdivision located in Carteret County.
                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                  Opinion of the Court



Plaintiffs are lot owners within the subdivision. The subdivision is subject to the

Amendment of Declaration of Covenants, Restrictions, and Easements of Bogue

Sound Yacht Club.

      In October 2013, Plaintiffs hired independent contractors to cut trees and clear

brush on their property in order to maintain the lot’s appearance and to prevent

overgrowth. Plaintiffs did not believe they were required to seek approval of the

Architectural Control Committee prior to beginning this work to remove trees and

clear brush on their lot and did not do so. Before work on the property was completed,

Defendant sent Plaintiffs a “Notice of [Architectural Control Committee] Violation”

demanding Plaintiffs stop clearing trees on their property “until the proper . . .

application form and $250 Refundable Construction Bond has been submitted for

approval.”   However, with crews already on site and nearly finished, Plaintiffs

continued the work and completed it the following day.

      Plaintiffs eventually offered to submit the application, but refused to pay the

requested $250 bond on the grounds such bond was not authorized either by the

Covenants or applicable law. Defendant refused to accept Plaintiffs’ application

without the $250 bond and sent Plaintiffs notice of a hearing. The hearing notice

alleged Plaintiffs’ noncompliance with Association standards by clearing trees

without following Defendant’s purportedly required procedure. The hearing notice

also notified Plaintiffs of a hearing to be held on 4 November 2013 before the board



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                                  Opinion of the Court



of directors, in order to determine whether the Association should impose a fine on

Plaintiffs.   The hearing notice invited Plaintiffs to be heard on the matter by

attending the hearing in person or submitting a written response; Plaintiffs opted to

attend the hearing.

       On 17 November, Defendant mailed Plaintiffs written notice of the

Association’s decision to allow a seven-day period for Plaintiffs to submit the

application and construction bond. The notice indicated Plaintiffs’ failure to comply

within seven days would result in imposition of a fine of one hundred dollars per day

for thirty days. On or about 10 December 2013, Plaintiffs submitted the $250 bond,

under protest, along with the required application. Defendant retroactively approved

Plaintiffs’ application and returned the $250 bond in full. Yet, because the bond was

purportedly not submitted within the seven-day period, Defendant assessed $1,400

in fines. Defendant subsequently reduced the fines by twenty-five percent, to $1,050.

       On 15 April 2014, Plaintiffs filed a verified complaint alleging two claims for

declaratory relief and a claim for breach of fiduciary duty.      Plaintiffs sought a

declaration that: (1) Defendant failed to comply with requirements of the North

Carolina Planned Community Act pertaining to the imposition of fines; and (2)

Defendant is without authority to impose the construction bond.         Additionally,

Plaintiffs claimed Defendant had breached a fiduciary duty owed to Plaintiffs and




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                       MCVICKER V. BOGUE SOUND YACHT CLUB

                                   Opinion of the Court



other members of the Association by selectively enforcing covenants and “failing to

evenly, uniformly, fairly and equitably apply the Covenants to its members.”

      Defendant answered the complaint on 18 June 2014, and both parties moved

for partial summary judgment.         In Defendant’s motion, Defendant contended

pursuant to the Covenants and bylaws of Bogue Sound Yacht Club, Defendant “is

empowered and required to maintain, keep up, and supervise the use and condition

of the common areas in the subdivision” and to “regulate the use and maintenance of

the properties within the subdivision through the rules and regulations promulgated

by its Board of Directors through its Architectural Control Committee.” Defendant

claimed “[i]n furtherance of these rights and responsibilities, [Defendant] . . . requires

that homeowners submit an application containing plans and specifications for work

that may impact property values, other structures, natural vegetation, topography,

[and] privacy . . . .” Part of this application process purportedly includes the power

to additionally require a $250 construction bond.         Defendant attached Plaintiff

Joseph P. McVicker’s deposition to support its motion.

      In support of their motion, Plaintiffs argued they were entitled to judgment as

a matter of law, because the Covenants “contain no authority for the imposition of

such a bond” and because Defendant is without authority to impose the bond, the

failure to post the bond cannot serve as a basis for imposing a fine. Plaintiffs further




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                                   Opinion of the Court



asserted Defendant failed to give legally sufficient notice of the charge, as required

by North Carolina law.

      The trial court heard the parties on their motions for partial summary

judgment on 1 February 2016. On 4 March 2016, the court entered a written order

granting Defendant’s motion for partial summary judgment, denying Plaintiffs’

motion, and dismissing with prejudice Plaintiffs’ claims for declaratory relief. On 9

March 2016, Plaintiffs gave notice of appeal to this Court. In an opinion filed 6

December 2016, this Court dismissed Plaintiffs’ appeal as interlocutory. McVicker v.

Bogue Sound Yacht Club, Inc., __ N.C. App. __, 794 S.E.2d 560, 2016 WL 7100634

(unpublished). Plaintiffs subsequently dismissed their third claim for relief entitled

“Breach of Fiduciary Duty and Selective Enforcement.” Plaintiffs then filed their

second notice of appeal to this Court on 10 March 2017.

                                     II. Jurisdiction

      Plaintiffs’ appeal from the superior court’s final order lies of right to this Court

pursuant to N.C. Gen. Stat. § 7A-27(b) (2015).

                                       III. Issues

      Plaintiffs contend the trial court erred in granting summary judgment to

Defendant on the issues of: (1) Defendant’s authority to require a bond be submitted

with a request for approval to Defendant prior to alterations, improvements or

construction on Plaintiffs’ lot; and (2) Defendant’s imposition of a fine upon Plaintiffs.



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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                   Opinion of the Court



                               IV. Standard of Review

      Summary judgment is proper where “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. Gen. Stat. § 1A-1, Rule 56(c) (2015); see Draughon

v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 737 (2003)

(citation omitted), aff’d per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004). “An issue

is ‘genuine’ if it can be proven by substantial evidence and a fact is ‘material’ if it

would constitute or irrevocably establish any material element of a claim or a

defense.” Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (citations

and internal quotation marks omitted).

      In reviewing a motion for summary judgment, the trial court must “view the

pleadings and all other evidence in the record in the light most favorable to the

nonmovant and draw all reasonable inferences in that party’s favor.” N.C. Farm

Bureau Mut. Ins. Co. v. Sadler, 365 N.C. 178, 182, 711 S.E.2d 114, 117 (2011) (citation

omitted).   This Court reviews a trial court’s summary judgment order de novo.

Sturgill v. Ashe Mem’l Hosp., Inc., 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007),

disc. review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).

                                      V. Analysis




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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                  Opinion of the Court



      Plaintiffs argue the trial court erred in granting summary judgment in favor

of Defendant, because Defendant is not authorized to impose the construction bond

and because Defendant failed to follow the North Carolina Planned Community Act

(the “PCA”) in imposing fines upon Plaintiffs. We agree.

                                      A. Mootness

      We first address our dissenting colleague’s contention that Plaintiffs’ challenge

to Defendant’s authority under the Amendment of Declaration of Covenants,

Restrictions, and Easements of Bogue Sound Yacht Club (the “Covenants”) to impose

the $250 construction bond is moot.

      “A case is ‘moot’ when a determination is sought on a matter which, when

rendered, cannot have any practical effect on the existing controversy.” Roberts v.

Madison Cty. Realtors Ass’n, Inc., 344 N.C. 394, 398-99, 474 S.E.2d 783, 787 (1996)

(citation omitted). “A case is not moot where there is a sufficient real or immediate

interest evidencing an existing controversy[.]” Guilford Cty. Dep’t of Emergency Servs.

v. Seaboard Chem. Corp., 114 N.C. App. 1, 13, 441 S.E.2d 177, 184 (citations and

internal quotation marks omitted), disc. review denied, 336 N.C. 604, 447 S.E.2d 390

(1994). This Court has also previously held that “cases which are technically moot

may be considered if they are ‘capable of repetition yet evading review.’” Ballard v.

Weast, 121 N.C. App. 391, 394, 465 S.E.2d 565, 568 (citation and quotation marks

omitted), disc. review denied, 343 N.C. 304, 471 S.E.2d 66 (1996).



                                         -7-
                       MCVICKER V. BOGUE SOUND YACHT CLUB

                                   Opinion of the Court



      Our dissenting colleague attempts to separate and not address or rule upon

Defendant’s authority to require a bond from Plaintiffs from Defendant’s power under

the PCA to assess fines for Plaintiffs’ failure to post the bond.          The issue of

Defendant’s authority to require a construction bond with an application is

necessarily intertwined and has a “practical effect” upon the issue of Defendant’s

power to fine Plaintiffs $1,400 for not initially posting the bond as part of the

Plaintiffs’ application. Roberts, 344 N.C. at 398-99, 474 S.E.2d at 787.

      We view the allegations in the pleadings in the light most favorable to

Plaintiffs. Plaintiffs initially submitted their application for approval to remove trees

and brush from their own yard, but did not submit the $250 bond because they did

not believe they were required to under the Covenants. Defendant refused to accept

Plaintiffs’ application for approval without Plaintiff additionally posting the $250

construction bond. Defendant fined Plaintiffs based upon its own refusal to accept

Plaintiffs’ architectural review application without the additional $250 bond.

      Plaintiffs’ argue the Covenants do not expressly authorize Defendant to

require a bond with a submission of an architectural review application, and they

refused to submit the construction bond. To determine whether Defendant possessed

the authority to impose a fine for Plaintiffs’ refusal to post a bond, necessarily

requires us to resolve the controversy of whether the Covenants expressly authorize




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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                  Opinion of the Court



Defendant to require applicants to post a construction bond with their application.

See Roberts, 344 N.C. 394, 398-99, 474 S.E.2d 783, 787.

      Defendant’s authority to require a bond directly bears upon Defendant’s power

to impose the contested fine upon Plaintiffs, and is not moot. Even were we to agree

that the return of the bond mooted Plaintiff’s claims, this issue remains properly

before us, as “cases which are technically moot may be considered if they are ‘capable

of repetition yet evading review.’” Ballard 121 N.C. App. at 394, 465 S.E.2d at 568;

see also Cumberland Cty. Hosp. Sys., Inc. v. N.C. Dep’t of Health & Human Sers., 242

N.C. App. 524, 530, 776 S.E.2d 329, 334 (2015) (“[W]e are not required to find that a

future dispute will involve the exact same parties and circumstances before applying

the exception [to mootness.]”).

                                  B. The Covenants

      Plaintiffs argue the Covenants do not authorize Defendant to require a

construction bond be posted with an approval application. Defendant asserts the

following Covenants provide authority to require Plaintiffs to post a bond with

submission of an approval application.      Although not raised by the parties, we

presume, without deciding, for the purpose of analyzing the bond requirement that

Defendant has the authority to require an approval application for lot owners

conducting yard maintenance upon their own property.

      The Covenants provide, in part:



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         MCVICKER V. BOGUE SOUND YACHT CLUB

                     Opinion of the Court



ARTICLE 4 (COMMON AREAS)

2. Easements. Every Owner shall have a right and
easement of enjoyment in and to the Common Areas, on a
nonexclusive basis, which right and easement shall be
appurtenant in and shall pass with the title to every Lot;
provided, however, the easements created hereunder shall
be subject to the following:

(a) the right of the Association to establish reasonable rules
and to charge reasonable fees for the use of the Common
Areas, any such fees being charged being for the cost of
maintenance, upkeep, and supervision of said Common
Area;

....

ARTICLE    6          (ARCHITECTURAL              CONTROL
COMMITTEE)

....

3. Procedure. Two copies of the complete set of plans and
specifications, including landscape plans, describing any
improvement, alteration, repair, or other item requiring
approval of the Committee, shall be submitted to the
Committee, at the place of address designated by the
Association. The Committee shall either approve or
disapprove the proposed work in writing within twenty (20)
days of the receipt of said plans and specifications. If the
Committee disapproves the proposed work, the Committee
shall state its reasons for such disapproval in the written
notification. In the event the Committee fails to approve
or disapprove in writing any proposed work within said
twenty (20) day period approval shall be deemed granted.
An applicant shall have the right to appeal an adverse
Committee decision to the Board of Directors of the
Association who may reverse or modify such decision by a
two-thirds vote of the directors present at a duly called
meeting.


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                                 Opinion of the Court




            4. Required Approval. No improvements, alterations,
            repairs, or excavations, nor any maintenance which
            requires or would result in a change in appearance (such
            as a change of color), or any other activity which would
            noticeabl[y] and visibly change the exterior appearance of
            a house or a Lot, or of any improvement located thereon,
            shall be made or done without the prior approval of the
            Committee. No building, fence, wall, residence or other
            structure shall be commenced, erected, maintained,
            improved, altered, or otherwise modified without the prior
            approval of the Committee, upon compliance with the
            procedures for approval as set out in subparagraph 3 of this
            Article 7.

      The Covenants also state, in pertinent part:

            ARTICLE 15 (BUILDING RESTRICTIONS)

            ....

            5. Damage to Common Properties. Each Owner shall be an
            insurer on behalf of their employees, contractors,
            subcontractors, and material suppliers, to the Association,
            for any damage to roads or to any other Common Areas
            caused by the passage of vehicles and equipment over the
            roads in the subdivision, or by any other activity associated
            with construction on Lots within the subdivision. In the
            event of such damage, the Association shall have the
            authority to repair such damage and assess the cost of such
            repairs to the Owner, which assessment shall become a lien
            on the property, just as other assessments are a lien, as set
            out in Article 7 of this Amended Declaration.

      Over sixty-three years ago, the Supreme Court of North Carolina set forth and

has since re-affirmed how courts are to review and construe restrictive covenants:

“[R]estrictive covenants clearly expressed may not be enlarged by implication or



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                                  Opinion of the Court



extended by construction.    They must be given effect and enforced as written.”

Callaham v. Arenson, 239 N.C. 619, 625, 80 S.E.2d 619, 624 (1954). “North Carolina

follows the rule of strict construction when interpreting restrictive covenants. That

is, any ambiguities will be resolved in favor of unrestricted use. But this rule must

not be applied to defeat the plain and obvious purposes of the restriction.” Barber v.

Dixon, 62 N.C. App. 455, 457, 302 S.E.2d 915, 916-17 (1983) (citing Long v. Branham,

271 N.C. 264, 268, 156 S.E.2d 235, 239 (1967)). “[E]ach part of the covenant must be

given effect according to the natural meaning of the words . . . .” J.T. Hobby & Son,

Inc. v. Family Homes of Wake Cty., 302 N.C. 64, 71, 274 S.E.2d 174, 179 (1981).

             [I]n interpreting restrictive covenants, doubt and
             ambiguity are resolved in favor of the unrestricted use of
             property,     so    that    where      the    language     of
             a restrictive covenant is capable of two constructions, the
             one that limits, rather than the one which extends it, should
             be adopted, and that construction should be embraced
             which least restricts the free use of the land.

Hultquist v. Morrow, 169 N.C. App. 579, 584-85, 610 S.E.2d 288, 292 (emphasis

supplied) (citations and quotation marks omitted), disc. review denied, 359 N.C. 631,

616 S.E.2d 235 (2005).

      Defendant is a planned community created before 1 January 1999 and is

therefore subject to particular sections of the PCA. See Wise v. Harrington Grove

Cmty. Ass’n, Inc., 357 N.C. 396, 399-400, 584 S.E.2d 731, 735 (2003). The PCA allows

property owners’ associations to “(6) [r]egulate the use, maintenance, repair,



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                                  Opinion of the Court



replacement, and modification of common elements[,]” and to “(17) [e]xercise any

other powers necessary and proper for the governance and operation of the

association.” N.C. Gen. Stat. § 47F-3-102(6), (17) (2015). “Unless the articles of

incorporation or the declaration expressly provides to the contrary, the [homeowners’]

association may” exercise these powers. N.C. Gen. Stat. § 47F-3-102.

      Defendant asserts it possesses authority to impose a bond requirement with

the submission of an application for approval under its right “to establish reasonable

rules and to charge reasonable fees for the use of the Common Areas. . .” under the

Covenants. The Covenants expressly authorize Defendant to “charge reasonable fees

for the use of the Common Areas[,]” but not to impose a bond as part of the approval

process to conduct maintenance or improvements upon a lot owner’s own property.

      No express language in the Covenants or the PCA grants Defendant the

authority to additionally require a bond to be submitted with a request for approval

of activities on an owner’s lot, not part of any common area. Defendant cannot assert

this power by implication. See Callaham, 239 N.C. at 625, 80 S.E.2d at 624.

Construing the Covenants strictly, as this Court is required to do, Defendant does not

have the express or implied authority to additionally require Plaintiffs to post a bond

as a condition to consider their application for approval. See Long, 271 N.C. at 268,

156 S.E.2d at 239.




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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                  Opinion of the Court



      The Covenants expressly set out the requirements for what Plaintiffs must

submit with a request for approval to the Architecture Control Committee: “Two

copies of the complete set of plans and specifications, including landscape plans,

describing any improvements, alteration, repair, or other item requiring approval of

the Committee, shall be submitted to the Committee[.]” Nothing in the Covenants’

specified procedure indicates, implies, or requires the additional requirement of a

bond to be posted.

      The Covenants also specifically provide that, in the event of damage to the

Common Areas, “caused by any other activity associated with construction on Lots

within the subdivision . . . [the Association] shall have the authority to repair such

damage and assess the cost of such repairs to the Owner[.]”

       While not before us here, Plaintiffs’ cutting and removal of trees upon their

own property might arguably come within the ambit of “any other activity associated

with construction[.]” The Covenants expressly provide the procedure for Defendant

to assess costs for any damage to the Common Areas caused by “activity associated

with construction on Lots within the subdivision[.]” It does not appear in the record

that Plaintiffs were doing construction on their lot or preparing for construction.

      Although the Covenants expressly allow Defendant to charge “reasonable fees

for the use of the Common Areas, any such fees being charged being for the purpose

of reimbursing the Association for the cost of maintenance, upkeep, and supervision



                                         - 14 -
                         MCVICKER V. BOGUE SOUND YACHT CLUB

                                  Opinion of the Court



of said Common Areas[,]” the Covenants expressly require only the submission of

plans and specifications to the Architectural Review Committee, and do not

additionally require posting a bond. “[R]estrictive covenants clearly expressed may

not be enlarged by implication or extended by construction.” Callaham, 239 N.C. at

625, 80 S.E.2d at 624.

      Additionally, the Covenants specifically provide that in the event of damage to

the Common Areas caused by “activity associated with construction on Lots within

the subdivision,” Defendant is to first repair the damage and then assess the lot

owner. The requirements of the Covenants can “not be enlarged by implication” to

additionally require Plaintiffs to post a bond to pay for potential damage to the

Common Areas, when the Covenants expressly provide a procedure by which

Defendant may repair and assess the costs of damage to the Common Areas caused

by approved activity on the owner’s lot. See id. Defendant possesses no express or

implied authority under the Covenants to additionally require Plaintiff to post a bond

with their application for approval. The superior court’s order to the contrary is

erroneous.

                                     C. The Fine

      Plaintiffs contend the Defendant’s imposition of a fine for failure to pay the

$250 bond is improper because the bond requirement is void, and Defendant failed to

follow the requirements of the PCA for imposing a fine. We agree.



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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                   Opinion of the Court



       Our dissenting colleague would decline to address whether Defendant has the

authority to impose the fine, because Plaintiffs did not ask the trial court to decide

whether the Association had the authority to impose fines in their complaint.

However, Plaintiffs specifically alleged in their claim for declaratory relief under the

PCA:

             21. Upon information and belief, Defendant failed to
             comply with the requirements of the North Carolina
             Planned Community Act pertaining to the procedure for the
             imposition of fines and related matters.

             [And]

             22. The attempt of BSYC [Defendant] to impose a fine upon
             Plaintiffs is void due to failure to comply with the statutory
             requirements for the imposition of fines. (emphasis
             supplied).

       Instead of addressing Defendant’s authority to assess a fine for Plaintiffs’

initial refusal to pay an unenforceable bond, our dissenting colleague expounds at

length on the issue of whether Defendant followed proper procedure under the PCA

before imposing the fine.    Our dissenting colleague quotes Plaintiffs’ brief in an

attempt to bolster the notion that the only issue before us regarding the fine is

whether Defendant followed proper procedure in imposing it, as follows: “Specifically,

the issue before this Court is whether the notice of hearing issued by the Association

was sufficient to put the Plaintiff-Appellants on ‘notice of the charge,’ as required by

G.S. 47F-3-107.1.”     However, this selective quotation ignores Plaintiffs’ later



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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                                  Opinion of the Court



contention in their brief that, “[s]ince the purported obligation to pay the $250.00

construction bond is void and fails as a matter of law, the requirement that a fine be

imposed for a violation of the Covenants is not satisfied under G.S. 47F-3-102(12),

and the fine is improper for that reason, alone.”

      N.C. Gen. Stat. § 47F-3-102(12) (2015) provides for the imposition of reasonable

fines. The association may

             After notice and an opportunity to be heard, impose
             reasonable fines or suspend privileges or services provided
             by the association (except rights of access to lots) for
             reasonable periods for violations of the declaration, bylaws,
             and rules and regulations of the association[.]

      The record clearly indicates, and there is no factual dispute, that Defendant

refused to accept or review Plaintiffs’ application without them also posting a $250

bond. Defendant fined Plaintiffs $100 for each day they did not submit the illegal

$250 bond, totaling $1,400 worth of fines. Defendant subsequently reduced the

amount of the fine to $1,050. The additional requirement of a bond is not authorized

either by the Covenants or required by the PCA.

      Plaintiffs attempted to submit their application without the bond, which

Defendant refused to accept until the bond was submitted, under protest. Defendant

then fined Plaintiffs for each day it had refused to accept Plaintiffs’ application

without the illicit bond. Defendant did not impose the fine for any other violation.

Defendant’s imposition of the fine was unlawful. See N.C. Gen. Stat. § 47F-3-102(12).



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                        MCVICKER V. BOGUE SOUND YACHT CLUB

                                     Opinion of the Court



       Defendant’s imposition of a fine for Plaintiffs not submitting the illegal $250

bond is plainly not reasonable. See Id. Presuming arguendo, Defendant provided

Plaintiffs with proper statutory notice and an opportunity to be heard before imposing

the fine, imposing the fine itself is, ipso facto, to the illegal bond requirement,

unlawful as it is not authorized by the Covenants and is not required under the PCA.

Id.

                                      VI. Conclusion

       Viewing the evidence in the light most favorable to Plaintiffs, as is required

upon Defendant’s motion, no genuine issue of material fact exists that Defendant

unlawfully required Plaintiffs to post a bond with their application, and illegally

imposed a fine for Plaintiffs’ failure to do so.

       The trial court’s grant of summary judgment to Defendant is reversed and the

matter remanded to the superior court with instructions to enter summary judgment

in favor of Plaintiffs. It is so ordered.

       REVERSED AND REMANDED.

       Judge STROUD concurs.

       Judge HUNTER dissents in a separate opinion.




                                            - 18 -
 No. COA17-447 – McVicker v. Bogue Sound Yacht Club


      HUNTER, JR., Robert N., Judge, dissenting in a separate opinion.


      I respectfully disagree with the majority’s decision reversing the trial court’s

order. I would dismiss the portion of Plaintiffs’ appeal arguing imposition of the bond

was improper. I would affirm the trial court’s order granting summary judgment for

Defendant and dismissing with prejudice Plaintiffs’ claims for declaratory relief as to

the issue of whether Defendant failed to properly impose the fine.

      Trial courts have discretion to decline to enter declaratory judgment. The

North Carolina Declaratory Judgment Act provides in pertinent part: “[t]he court

may refuse to render or enter a declaratory judgment or decree where such judgment

or decree, if rendered or entered, would not terminate the uncertainty or controversy

giving rise to the proceeding . . . .” N.C. Gen. Stat. § 1-257 (2015).

      The issue of whether Defendant had authority to impose the $250 construction

bond is moot, as both parties agree Defendant fully refunded the bond to Plaintiffs.

The majority asserts the issue is “capable of repetition yet evading review” and

therefore, not moot. This Court has stated cases are capable of repetition yet evading

review when “(1) the challenged action [is] in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the

same complaining party would be subjected to the same action again.” Crumpler v.

Thornburg, 92 N.C. App. 719, 723, 375 S.E.2d 708, 711 (1989) (quoting Leonard v.

Hammond, 804 F. 2d 838, 842 (4th Cir. 1986)).
                       MCVICKER V. BOGUE SOUND YACHT CLUB

                          HUNTER, JR., Robert N., J., dissenting



      Because the bond had been fully refunded at the time of trial there was no

longer a controversy present needing judicial wisdom. The issue of imposition of a

bond is not ordinarily an event of short duration so as to evade full litigation. If

Defendant had not refunded the bond, then the imposition would not expire, and

Plaintiffs would have ample opportunity to litigate their claim. Yet here, because the

bond has been fully refunded, addressing the issue will have no practical effect on the

controversy and the trial court properly exercised its discretion to decline to enter

declaratory judgment.

      As to the issue of whether imposition of the fine was improper, Plaintiffs did

not ask the trial court to decide whether Defendant had the authority to impose the

fine in their complaint. Instead, Plaintiffs challenged Defendant’s failure to comply

with the proper procedures and statutory requirements for imposition of fines.

Lacking an allegation in the complaint asking for a determination of the authority

to impose fines, this Court should decline to address whether Defendant had

authority to impose the fines and instead only address whether Defendant complied

with the procedural requirements for imposition of the fines. Plaintiffs’ brief states

“[s]pecifically, the issue before this Court is whether the notice of hearing issued by

the Association was sufficient to put the Plaintiff-Appellants on ‘notice of the charge,’

as required by G.S. 47F-3-107.1.”




                                            2
                      MCVICKER V. BOGUE SOUND YACHT CLUB

                          HUNTER, JR., Robert N., J., dissenting



      I would conclude Defendant complied with statutory requirements when it

issued Plaintiffs two notices. The procedure for imposing fines for violations of the

Association’s rules and regulations is set forth in N.C. Gen. Stat. § 47F-3-107.1 which

provides, in pertinent part:

             Unless a specific procedure for the imposition of fines or
             suspension of planned community privileges or services is
             provided for in the declaration, a hearing shall be held
             before the executive board or an adjudicatory panel
             appointed by the executive board to determine if any lot
             owner should be fined or if planned community privileges
             or services should be suspended pursuant to the powers
             granted to the association in G.S. 47F-3-102(11) and (12).
             Any adjudicatory panel appointed by the executive board
             shall be composed of members of the association who are
             not officers of the association or members of the executive
             board. The lot owner charged shall be given notice of the
             charge, opportunity to be heard and to present evidence,
             and notice of the decision.


      Because the covenants at issue in this case do not contain a specific procedure

for the imposition of fines, the procedure set forth in the Act governs. The Act

provides certain minimal due process guarantees, allowing imposition of fines only

after an owner is given: (1) notice of the charge; (2) an opportunity to be heard and to

present evidence; and (3) notice of the decision. N.C. Gen. Stat. § 47F-3-107.1; Reidy

v. Whitehart Ass’n, 185 N.C. App. 76, 84, 648 S.E.2d 265, 271 (2007).

      Here, Defendant issued Plaintiffs two notices. First, Defendant sent “Notice

of ACC Violation” dated 3 October 2013, ordering Plaintiffs to “cease and desist”



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                      MCVICKER V. BOGUE SOUND YACHT CLUB

                          HUNTER, JR., Robert N., J., dissenting



clearing the trees on their property until Plaintiffs submitted the proper application

form and $250 “Refundable Construction Bond.” The letter included the regulation

outlining the procedure for obtaining the approval of the Architectural Committee

prior to conducting construction or improvements. Defendant sent another notice

dated 23 October and titled “Hearing Notice.” This letter again indicated Plaintiffs

failed to comply with the proper procedure for obtaining Architectural Committee

approval prior to clearing the trees on their property, and it indicated Defendant’s

authority to impose fines against Plaintiffs which could be as much as one hundred

dollars per occurrence or per day. The letter also included notice of a hearing to be

held on 4 November 2013 and invited Plaintiffs to attend. Nothing in the Act, or our

case law suggests any particular form of notice is required beyond simply providing

the owner with notice of the violation. Here, Plaintiffs were given adequate notice in

the form of two written letters. Thus, I would conclude Defendant complied with the

requirements of the Act in imposing a fine on Plaintiffs, and affirm the trial court’s

order granting summary judgment for Defendant as to this issue.

      Therefore, because Defendants fully refunded the bond, Plaintiffs’ complaint

did not contest Defendant’s authority to impose the fines, and because notice of the

fines complied with statutory requirements, the trial court’s order granting summary

judgment to Defendant and dismissing Plaintiffs’ claim for declaratory relief was

proper.



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MCVICKER V. BOGUE SOUND YACHT CLUB

  HUNTER, JR., Robert N., J., dissenting




                    5
