               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                     No. COA15-1281

                                 Filed: 6 September 2016

Johnston County, No. 14 CVD 3722

TATITA M. SANCHEZ, Plaintiff,

              v.

COBBLESTONE HOMEOWNERS ASSOCIATION OF CLAYTON, INC., a North
Carolina non-profit corporation, Defendant.


        Appeal by Defendant from order entered 13 May 2015 by Judge O. Henry

Willis, Jr. in District Court, Johnston County. Heard in the Court of Appeals 23 May

2016.


        No brief for Plaintiff-Appellee.

        Jordan Price Wall Gray Jones & Carlton, by J. Matthew Waters and Hope
        Derby Carmichael, for Defendant-Appellant.


        McGEE, Chief Judge.


        This appeal is a companion case to four other related cases involving

substantially the same facts, COA15-1280, COA15-1282, COA15-1302, and COA15-

1303. The plaintiffs in all these cases own homes in a community known as the

Cobblestone Subdivision (“the subdivision”). Cobblestone Homeowners Association

of Clayton, Inc., a homeowners association (“Defendant Association”), was created in

order to maintain certain subdivision common areas and to handle the financial

requirements of said management. The common areas relevant to this appeal were

a pool and tennis courts, which were regulated and maintained by Defendant
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                                         Opinion of the Court



Association, and which were, pursuant to Defendant Association’s covenants,

allegedly open to all residents of the subdivision who paid the regular homeowners

association fees or dues (“the dues”).

      Tatita Sanchez (“Plaintiff”) owned a home (“the property”) in the subdivision,

and was regularly paying dues Defendant Association assessed until she received a

letter on or about 30 July 2014 from the then counsel for Defendant Association. In

that letter, Defendant Association informed Plaintiff that, as a result of an earlier

mistake, Plaintiff and certain other homeowners1 in the subdivision were not

members of Defendant Association.                The letter further informed Plaintiff and

similarly situated homeowners that, if they wanted to continue enjoying the pool,

tennis courts and other benefits and responsibilities of membership in Defendant

Association, they would have to execute a “Supplemental Declaration” to bring

themselves and their properties within Defendant Association’s authority, and

continue to pay the dues.

      Plaintiff decided not to join Defendant Association, and requested return of the

dues she had been erroneously charged over the years.               Defendant Association

refused to reimburse Plaintiff for dues already paid, so Plaintiff filed a complaint in

small claims court on 31 October 2014, seeking reimbursement. The magistrate in

small claims court ruled in favor of Plaintiff by judgment entered 1 December 2014,



      1   Including Plaintiffs in the companion cases.

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and Defendant Association appealed to district court. Plaintiff’s action was heard on

20 April 2015, and the trial court again ruled in favor of Plaintiff by order entered 13

May 2015. Defendant Association appeals.

                                I. Standard of Review

      This matter was decided by the trial court sitting without a jury.

             “[W]hen the trial court sits without a jury, the standard of
             review on appeal is whether there was competent evidence
             to support the trial court’s findings of fact and whether its
             conclusions of law were proper in light of such facts.”

                . . . . The trial court’s conclusions of law, by contrast,
                are reviewable de novo.

Lake Toxaway Cmty. Ass’n, Inc. v. RYF Enters., Inc., 226 N.C. App. 483, 487, 742

S.E.2d 555, 559 (2013) (citations omitted). Because Defendant Association does not

contest any of the trial court’s findings of fact in this matter, they are binding on

appeal. Id. at 489, 742 S.E.2d at 560. Our review is therefore limited to determining

whether the trial court’s findings of fact support its conclusions of law. Id. at 487,

742 S.E.2d at 559. Our review is further limited to those arguments Defendant

Association brings forth on appeal. “Issues not presented in a party’s brief, or in

support of which no reason or argument is stated, will be taken as abandoned.” N.C.

R. App. P. App. R. 28(b)(6) (2016).

                                      II. Analysis




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      On appeal, Defendant Association contends that “the trial court erred as a

matter of law in concluding that [Plaintiff] was entitled to a return of assessments

paid in the amount of $4,000.00.” We disagree.

      Defendant Association’s contention is based upon two specific arguments: (1)

“The trial court erred in concluding that no contract existed between [Plaintiff] and

[Defendant Association] given the facts established an implied in fact contract existed

between the parties[,]” and (2) “the trial court erred in failing to conclude that

[Plaintiff] was estopped from denying the obligation to pay assessments to [Defendant

Association.]” We limit our review to these two specific arguments, and address each

argument in turn.

                             A. Contract Implied in Fact

      Defendant Association first argues “the trial court erred in concluding that no

contract existed between [Plaintiff] and [Defendant Association] given the facts

established an implied in fact contract existed between the parties.” We disagree.

      Though somewhat couched in terms of “unjust enrichment,” the argument

made by Defendant Association is actually restricted to the presence or absence of a

contract implied in fact that would have bound Plaintiff to pay the dues. Defendant

Association put its argument to this Court in the following manner:

             Where the facts establish that [Plaintiff] received benefits
             from [Defendant Association], and [Plaintiff] had clear
             knowledge of such benefits and services being provided by
             [Defendant Association], an implied in fact contract exists


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               between [Plaintiff] and [Defendant Association]. If the
               evidence demonstrates that [Plaintiff] consciously accepted
               the benefits and services provided by [Defendant
               Association], the trial court cannot conclude that [Plaintiff]
               unjustly enriched [Defendant Association] by paying [the
               dues]. (Citation omitted).2

       At trial Defendant Association argued, inter alia, that, because there existed a

contract implied in fact between the parties, the trial court could not base any remedy

upon the theory of unjust enrichment. Unjust enrichment may be found when there

exists a contract implied in law, and recovery based upon unjust enrichment is

improper when an actual contract – such as a contract implied in fact – exists.3

               Quantum meruit is a measure of recovery for the
               reasonable value of services rendered in order to prevent
               unjust enrichment. It operates as an equitable remedy
               based upon a quasi contract or a contract implied in law.
               “A quasi contract or a contract implied in law is not a
               contract.” An implied [in law] contract is not based on an
               actual agreement, and quantum meruit is not an
               appropriate remedy when there is an actual agreement
               between the parties. Only in the absence of an express
               agreement of the parties will courts impose a quasi
               contract or a contract implied in law in order to prevent an
               unjust enrichment.

       2    The dissenting opinion references a quote found in the “Standard of Review” section of
Defendant Association’s argument: “‘The findings of fact in this matter simply do not support the trial
court’s conclusion of law that [Plaintiff’s] payment of assessments to [Defendant Association] unjustly
enriched [Defendant Association].’” Though Defendant Association does make this statement in its
brief, it does not cite any law laying out the elements of unjust enrichment in its brief, and does not
make any direct argument that Plaintiff failed to satisfy her burden of presenting evidence in support
of all the required elements. This is because Defendant Association’s argument does not depend on
whether the elements of unjust enrichment were established.
         3 “Although the terms of an implied in fact contract may not be expressed in words, or at least

not fully in words, the legal effect of an implied in fact contract is the same as that of an express
contract in that it too is considered a ‘real’ contract or genuine agreement between the parties.” Miles
v. Carolina Forest Ass'n, 167 N.C. App. 28, 36, 604 S.E.2d 327, 333 (2004).

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Whitfield v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412, 414–15 (1998) (citations

omitted). In fact, the mere existence of a contract implied in law would make any

consideration of the equitable remedy of unjust enrichment improper.                        Booe v.

Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988) (citation omitted) (“If there

is a contract between the parties the contract governs the claim and the law will not

imply a contract [in law].”).4

       Our review of this argument is entirely limited to whether or not a contract

implied in fact existed between Plaintiff and Defendant Association.                      If such a

contract existed, Plaintiff was thereby obligated to pay the dues, and the trial court’s

order should be reversed. If no such contract existed, the trial court should be

affirmed because Defendant Association makes no further argument on appeal.5

       This Court has stated:

               [A] contract implied in fact . . . arises where the intention
               of the parties is not expressed, but an agreement in fact,
               creating an obligation is implied or presumed from their


       4  In Lake Toxaway, discussed in detail below, this Court held that an implied in fact contract
existed which obligated the defendant to pay property maintenance fees. This Court further held that
absent payment of those fees, the defendant would be unjustly enriched. Having held that a contract
existed between the parties, the additional holding related to unjust enrichment was legally incorrect
unless viewed as an alternative holding should its finding that a contract implied in fact existed be
overturned. See Ellis Jones, Inc. v. W. Waterproofing Co., 66 N.C. App. 641, 646–47, 312 S.E.2d 215,
218–19 (1984). We view these holdings as alternative holdings. Further, in Miles, also discussed in
detail below, though the plaintiffs argued that there was “insufficient evidence of unjust enrichment
for the court to grant a directed verdict in favor of [the] defendant under the theory of an implied
contract[,]” this Court determined that the implied contract was one of fact, not law, and therefore
damages were based upon breach of that contract, not unjust enrichment. Miles, 167 N.C. App. at 34,
37, 604 S.E.2d at 332, 34.
        5 Excepting Defendant Association’s argument concerning estoppel, which we consider below.



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             acts[.] With regard to contracts implied in fact, . . . one
             looks not to some express agreement, but to the actions of
             the parties showing an implied offer and acceptance.

Lake Toxaway, 226 N.C. App. at 488, 742 S.E.2d at 560 (citation omitted). Defendant

Association contends that the actions of Plaintiff and Defendant Association created

a contract implied in fact for the payment of the dues in exchange for the benefits of

membership in Defendant Association.

       The trial court made the following relevant findings of fact and conclusions of

law:

             3. At or about the time that [P]laintiff acquired the
             property, [P]laintiff was informed and believed that said
             property was subject to said covenants and that the
             property was a part of and subject to the rules of
             [D]efendant [Association].

             4. In accordance with the rules and covenants, Plaintiff
             paid periodic dues . . . to [D]efendant [Association] from at
             or about the time Plaintiff was notified of said [dues] until
             approximately July 30, 2014.

             5. By letter from the attorney for the Defendant
             [Association] dated July 30, 2014, [P]laintiff was notified
             that the property was not and had never been subject to
             the covenants. The requirement that the aforesaid periodic
             [dues] be paid was a condition of the covenants.

             6. Plaintiff rarely, if ever, used the tennis courts or
             swimming pool, which were the main two amenities offered
             by [D]efendant [Association].

             7. Plaintiff, without legal obligation has paid to
             [D]efendant [Association] periodic [dues] payments in the
             total sum of $4,000.00.


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               8. Plaintiff was not aware of nor had any reasonable way of
               knowing that there was no legal obligation to pay periodic
               dues . . . until [P]laintiff received the letter referred to in
               paragraph 5 above.

               9. Defendant [Association] had no legal right to require or
               receive payments from [P]laintiff.6


                                   CONCLUSIONS OF LAW

               ....

               3. No contract or other legal obligation existed between the
               parties as would require Plaintiff to pay periodic dues . . . to
               Defendant [Association].

               4. Plaintiff’s payments to defendant resulted in
               [D]efendant [Association] being unjustly enriched in the
               total amount of the payments made.

       As Defendant Association does not challenge the findings of fact, nor argue

that the trial court should have made additional findings of fact, we restrict out

analysis to whether those findings support the trial court’s conclusion that no

contract existed between Plaintiff and Defendant Association requiring payment of

the dues. Lake Toxaway, 226 N.C. App. at 489, 742 S.E.2d at 560. The findings

establish the following: (1) Plaintiff was informed that the property was subject to




       6  The findings of fact include no reference to Plaintiff attending a homeowner’s meeting, being
provided with a key to the pool, nor that she called Defendant Association on occasion concerning
homeowner’s issues. In its brief, Defendant Association did improperly attempt to argue that Plaintiff
contacted Defendant Association regarding a homeowner’s issue. We restrict our review to those facts
actually found as fact in the trial court’s order.

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covenants requiring her to pay periodic dues; (2) Plaintiff was in fact not obligated to

pay the dues, and did not have any reason to know she was not legally obligated to

pay the dues until informed pursuant to the 30 July 2014 letter from Defendant

Association; (3) based upon Defendant Association’s erroneous assertions and

requests, Plaintiff paid $4,000.00 to Defendant Association as “dues;” and (4) Plaintiff

“rarely, if ever, used the tennis courts or swimming pool, which were the main two

amenities offered by [D]efendant [Association].”

      Defendant Association argues that this Court’s opinions in Lake Toxaway and

Miles require that we find a contract implied in fact existed between Plaintiff and

Defendant Association. In Lake Toxaway, developer Lake Toxaway Company (“LTC”)

developed certain real property (“the development”) which included a man-made lake

(“the lake”) and individual building lots. Lake Toxaway, 226 N.C. App. at 485-86, 742

S.E.2d at 558. In 2000, the defendant purchased a lot (“the lot”), located within the

development. Id. at 485, 742 S.E.2d at 558. Access to the lake was granted by deed

to certain property owners within the development, but LTC contended that lake

privileges were not specifically granted appurtenant to the lot. Id. at 486, 742 S.E.2d

at 558. The plaintiff was the property owners association for the development. Id.

The plaintiff and LTC entered into an agreement in December 2003 whereby the

plaintiff became responsible for maintaining certain common areas within the

development, including the lake and the rights-of-way for the private roads that



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provided access to the individual parcels of property in the development, including

the lot. Id. The plaintiff delivered an invoice to the defendant in 2008, demanding

the defendant pay an amount representing its pro-rata share of the costs of

maintaining the roads and the lake for the 2008-09 fiscal year. Id. The defendant

refused to pay, and the plaintiff initiated an action to determine the rights and

obligations of the parties. Id. The trial court ruled that a contract implied in fact

had been created by the actions of the plaintiff and the defendant. Id. at 487, 742

S.E.2d at 559.

      Upon review of the trial court’s ruling, this Court noted: “It is uncontested that

plaintiff’s upkeep, repair, and maintenance of the dam, Lake Toxaway, roads, and

common areas have conferred a measurable benefit on defendant.” Lake Toxaway,

226 N.C. App. at 491, 742 S.E.2d at 561. This Court then held:

             Since August 1965, when [the lot] was first deeded by LTC,
             subsequent owners of the [lot,] including defendant, have
             used [the lake] continuously for boating and other
             recreational purposes. See Snyder, 300 N.C. at 218, 266
             S.E.2d at 602 (stating that “[a]cceptance by conduct is a
             valid acceptance”). [The d]efendant has also used the
             private roads, containing multiple points of access, within
             [the development]. [The d]efendant benefits from having
             the availability of well-maintained and secured private
             roads to and from the [lot] and for travel within [the
             development], in addition to a well-maintained and secure
             [lake] and dam.

             We agree with the trial court that:

                 [w]ith knowledge of the services provided by the


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                [p]laintiff in maintaining and managing the operations
                and care of the private roads, roadsides, and [the lake],
                [the d]efendant agreed by its conduct . . . in using or
                claiming the right to use the private roads and lake so
                maintained and managed by the [p]laintiff to pay for the
                maintenance, repair and upkeep of the roads, roadsides,
                and lake.

             Because the uncontested findings of fact support the trial
             court’s conclusion that implicit in [the] defendant’s
             acceptance of the benefits of using the roads and the lake,
             was an agreement to pay for the upkeep, maintenance and
             repair of the roads and lake. Therefore, based on the record
             before us, we hold that a contract implied in fact existed
             between the parties.

Id. at 489-90, 742 S.E.2d at 560-61 (citation omitted). The ruling in Lake Toxaway

was thus based upon the “defendant’s acceptance of the benefits of using the roads

and the lake,” and other amenities, Id. at 490, 742 S.E.2d at 561 (emphasis added),

not upon the mere existence of those benefits.

      In Miles, the covenants of the defendant homeowner’s association, Carolina

Forest Association (“CFA”), of a subdivision (“Carolina Forest”) required all real

property owners in Carolina Forest to pay association fees for the purposes of

maintenance and upkeep of common roads and recreation areas. Miles, 167 N.C. App.

at 29, 604 S.E.2d at 329. The covenants included a clause whereby the covenants

would expire on 1 January 1990. CFA believed that the covenants could be extended

if the owners of two-thirds of Carolina Forest lots agreed in writing to do so. Id. at

29-30, 604 S.E.2d at 329. The owners of just over two-thirds of Carolina Forest lots



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did agree to extend the covenants, and all the plaintiff lot owners continued to pay

the maintenance fees until at least 1997. Id. at 30, 604 S.E.2d at 329. In 1998, the

plaintiffs filed an action requesting the trial court rule that they were not obligated

to pay the maintenance fees based upon an argument that the 1990 “amendment” to

the covenants did not bind them. Id. at 31, 604 S.E.2d at 329-30. The trial court

ultimately determined there existed a contract implied in fact based upon the benefits

the plaintiffs’ had received. Id. at 31, 604 S.E.2d at 330. This Court held:

             Plaintiffs were assessed specific fees for benefits to their
             unimproved properties. These benefits protected both the
             access to and the value of their properties, by way of
             maintaining private roads, recreational facilities, a pool, a
             guard station, and an administrative office. The record
             shows that plaintiffs were on clear notice that these
             benefits were being incurred: Approximately half of them
             actually voted for the amendments to declaration No. 10 as
             recorded in 1990, which included consent to pay the
             assessment fees for the exact benefits at issue in this case.
             All of the plaintiffs had paid some or all of the fees and
             assessments up until 1997 and 1998, and were incurring
             the benefit from the improvements funded by such
             payments. This conduct is consistent with the existence of
             a contract implied in fact, and plaintiffs’ attempt to stop
             payment on these known benefits, without more, is
             tantamount to breach of that contract.

Id. at 37, 604 S.E.2d at 333-34. Unlike in the present case, the plaintiffs in Miles

continued to pay the contested fees after they were aware of the events which brought




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the validity of those fees into question.7 This act of continued payment strongly

suggested that the plaintiffs recognized they were receiving a benefit in return for

those payments, even if they disputed that the extension of the covenants applied to

them. In the present case, Plaintiff immediately ceased paying the association fees

once Defendant Association informed her that she was under no legal obligation to

continue doing so.

        Further, in both Lake Toxaway and Miles, the trial court ruled that the

property owners directly benefitted by the actions of the relevant homeowners

associations in maintaining roadways and other common areas.                          As an obvious

example, the property owners in those two cases could not access their properties in

any meaningful manner absent the roadways maintained through association fees. 8

For this reason, in both cases this Court held that the trial court had not erred in

finding the existence of a contract implied in fact. However, in the present case, the

trial court ruled that Plaintiff “rarely, if ever” used the “main amenities” maintained

by the association dues collected by Defendant Association.9 The trial court did not



        7 In Miles, the plaintiffs continued to pay association fees after 1 January 1990, the expiration
date of the covenants absent amendment. If the plaintiffs believed the amendment to the covenants
did not obligate them to pay association fees after 1 January 1990, they could have contested their
obligations at that time.
        8 There is no evidence, nor finding of fact, that the dues in the present case went toward

maintenance of the subdivision roads or any other common area necessary for Plaintiff to enjoy the
property.
        9 We note that in companion appeal COA15-1282 the trial court found that Plaintiff Frank

Christopher and his family “never used” the pool and tennis courts, and that he was not benefitted by
Defendant Association.

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find as fact that Plaintiff benefitted in any other manner from services rendered by

Defendant Association. On these facts, we hold that the trial court did not err in

concluding that no contract implied in fact had been created between Plaintiff and

Defendant Association.

      We further note that if a contract had existed between Plaintiff and Defendant

Association, Defendant Association would also have been bound by that contract.

However, by its 30 July 2014 letter to Plaintiff, Defendant Association, through

counsel, informed Plaintiff that the property was “not subject to [Defendant

Association’s] declaration[.]” Defendant Association informed Plaintiff that, in order

to become a member of Defendant Association and be allowed access to the pool or

tennis courts, Plaintiff would be required to execute a “‘Supplemental Declaration’

. . . where [Plaintiff] agree[d] to be subject to the terms and provisions of [Defendant

Association.]”   Had there been an enforceable implied in fact contract between

Plaintiff and Defendant Association, Defendant Association would not have been able

to deny Plaintiff the amenities provided by [Defendant Association] regardless of

whether Plaintiff executed any “supplemental declaration.” Defendant Association’s

argument seems to be that there was no contract enforceable by Plaintiff, but that

there was a contract enforceable by Defendant Association.

      This Court is not called upon to make an independent determination of

whether Defendant Association was unjustly enriched; we are called upon to



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determine whether Defendant Association’s arguments on appeal have merit. It is

not the job of this Court to “create an appeal for” Defendant Association. Viar v. N.C.

Dep’t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005).

        Defendant Association bases its argument on cases in which this Court found,

by the actions of the parties involved, the mutual agreement necessary to form a

contract implied in fact. Specifically, this Court in Lake Toxaway found that “the

plaintiffs received benefits to their properties and the plaintiffs were on clear notice

that these benefits were being incurred[.]” Lake Toxaway, 226 N.C. App. at 490, 742

S.E.2d at 560. “‘Whether mutual assent is established and whether a contract was

intended between parties are questions for the trier of fact.’” Lake Toxaway, 226 N.C.

App. at 488, 742 S.E.2d at 560 (emphasis added) (citing Miles, 167 N.C. App. at 37,

604 S.E.2d at 333–34). The only “benefit” found by the trial court in the present case

was that Plaintiff “rarely, if ever, used the tennis courts or swimming pool[.]”10 We

can only conclude that the trial court determined that this “benefit” was insufficient

to establish mutual assent between Plaintiff and Defendant Association, and thus no

contract between the parties was intended. This was the trial court’s determination

to make. Id. Defendant Association, by its own actions upon discovering Plaintiff’s



        10 The dissenting opinion points to evidence indicating that Plaintiff used the pool “on
occasion.” However, our job is not to find facts based upon the evidence presented at trial, it is to apply
the law to the facts found by the trial court based upon that evidence. We note that in four of the five
companion cases, including the present case, the trial court used identical language: “Plaintiff rarely,
if ever, used the tennis courts or swimming pool[.]” In the fifth companion case, COA15-1282
Christopher, the trial court found as fact that Plaintiff Christopher never used these amenities.

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property was not subject to its covenants, indicated that it did not believe any contract

existed.   Had a contract existed, Defendant Association could not have denied

Plaintiff access to any of its benefits, so long as Plaintiff continued to pay dues,

regardless of whether Plaintiff executed the “supplemental declaration” to bring her

and her property within Defendant Association’s authority. However, Defendant

Association made continued availability of access to its benefits contingent upon

Plaintiff executing the “supplemental declaration.”

      In addition, we are not persuaded by the dissenting opinion’s analogy of the

facts before us to membership in a health club. When someone joins a health club,

that person executes a contract requiring fees be paid in return for access to certain

facilities. In the present case, we are called upon to determine whether any such

contract existed between Plaintiff and Defendant Association. It is uncontested that

those homeowners who were contractually obligated to pay dues to Defendant

Association were so obligated whether or not they took advantage of any of Defendant

Association’s benefits.

      Assuming arguendo some of the trial court’s findings are in fact conclusions,

as the dissenting opinion contends, we do not see how our analysis would change.

Importantly, whether a finding or a conclusion, it is the duty of Defendant

Association, as the appellant, and not the duty of this Court, to challenge findings

and conclusions, and make corresponding arguments on appeal. It is not the job of



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this Court to “create an appeal for” Defendant Association. Viar v. N.C. Dep’t of

Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005). Defendant Association does

not argue that the trial court erred in either finding or concluding that “Plaintiff was

not aware of nor had any reasonable way of knowing that there was no legal

obligation to pay periodic dues or association fees until [P]laintiff received the letter”

dated 30 July 2014.11           Defendant Association does not argue that Plaintiff was

charged with notice as a matter of law through her chain of title that she was not

required to pay the dues. Defendant Association makes no mention of, much less

argument concerning, the chain of title to Plaintiff’s property. Any such arguments

have therefore been abandoned.              “It is not the duty of this Court to supplement an

appellant’s brief with legal authority or arguments not contained therein. Th[ese]

[arguments are] deemed abandoned by virtue of N.C. R. App. P. 28(b)(6) (2005).”

Goodson v. P.H. Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005).

We are not called upon to determine the equities involved in this case, we are called

upon to render a legal opinion on the issue of whether there existed between Plaintiff

and Defendant Association a contract implied in fact that obligated Plaintiff to pay

the dues.

        The dissenting opinion would hold that access to benefits alone is sufficient to

meet the requirements set forth in Lake Toxaway and Miles, irrespective of whether


        11  We note that this is not a conclusion by the trial court concerning Plaintiff’s legal obligation
to pay, it is a finding related to Plaintiff’s understanding of what her obligations were.

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those available benefits were actually enjoyed.                 We believe the law requires

something more.

                                            B. Estoppel

       In Defendant Association’s second argument, it contends the trial court erred

in “failing to conclude that [Plaintiff] was estopped from denying the obligation to pay

assessments[.]” We disagree.

       Defendant Association cites to this Court’s opinion in Reidy v. Whitehart Ass’n,

185 N.C. App. 76, 648 S.E.2d 265 (2007), for the proposition that Plaintiff should be

equitably estopped from denying

               the validity of [Defendant Association], at least until July
               2014. [Plaintiff] accepted membership within [Defendant
               Association] at the closing of the purchase of her home and
               paid her first assessments then. . . . .12 [Plaintiff] at all
               times had the right to enter and use the pool and tennis
               courts, and used the pool on one occasion. [Plaintiff] paid
               quarterly assessments as she believed she was required to
               do under the covenants and as a member of [Defendant
               Association], without objection.

       As this Court stated in Reidy: “‘Under a quasi-estoppel theory, a party who

accepts a transaction or instrument and then accepts benefits under it may be

estopped to take a later position inconsistent with the prior acceptance of that same

transaction or instrument.’”         Reidy, 185 N.C. App. at 80, 648 S.E.2d at 268-69



       12  Defendant Association argues certain alleged facts that are not included in the findings of
fact for the 13 May 2015 order. Our review is limited to the facts as found by the trial court in its
order. Lake Toxaway, 226 N.C. App. at 489, 742 S.E.2d at 560.

                                               - 18 -
          SANCHEZ V. COBBLESTONE HOMEOWNERS ASS’N OF CLAYTON, INC.

                                   Opinion of the Court



(citation omitted). The only potential benefit “accepted” by Plaintiff and found as fact

by the trial court was that “Plaintiff rarely, if ever, used the tennis courts or

swimming pool[.]” We hold the trial court did not err in failing to find Plaintiff was

estopped from accepting the validity of “Defendant Association” or the validity of any

“obligation to pay assessments to [Defendant Association.]”

      AFFIRMED.

      Judge HUNTER, JR. concurs.

      Judge DILLON dissents with separate opinion.




                                          - 19 -
 No. COA15-1281 – SANCHEZ V. COBBLESTONE HOMEOWNERS ASS’N OF
 CLAYTON, INC.


       DILLON, Judge, dissenting.


       I do not believe that the trial court’s findings support its conclusion that the

HOA was unjustly enriched by its receipt of dues from Homeowner from 2002-2014.

Rather, as the HOA argues, the findings support a conclusion that the parties had a

contract, implied-in-fact, whereby the parties agreed – as evidenced by their conduct

– that the HOA would allow Homeowner access to amenities/benefits in return for

the dues paid by Homeowner. See Revels v. Miss Am. Org., 182 N.C. App. 334, 337,

641 S.E.2d 721, 724 (2007) (“With regard to contracts implied in fact, . . . one looks

not to some express agreement, but to the actions of the parties showing an implied

offer and acceptance.”).

       As shown by the uncontradicted evidence in the record, the trial court

essentially found that (1) Plaintiff (“Homeowner”) purchased her home in 2002

believing she would be part of the Defendant homeowners’ association (the “HOA”),

allowing her access to the HOA amenities in exchange for her payment of dues; 13 (2)

Homeowner paid the HOA dues for a number of years; (3) the HOA provided




        13 This finding is supported by Homeowner’s admission that she believed she would be part of

the HOA when she bought her home; that the appraisal ordered by her lender states that the home
she was buying included the right to access HOA amenities (swimming pool and tennis courts); and
that the HOA accounting reflects dues she paid to the HOA as part of her 2002 closing.
            SANCHEZ V. COBBLESTONE HOMEOWNERS ASS’N OF CLAYTON, INC.

                                       DILLON, J., dissenting



Homeowner access to amenities;14 (4) in 2014, the HOA sent Homeowner a letter

which informed Homeowner that the HOA had learned that Homeowner’s home was

not included as part of the recorded HOA declarations, but that the HOA was willing

to execute the necessary paperwork for filing to include her home in the

declarations.15

       I do not agree with the majority that the trial court’s finding that Homeowner

“rarely, if ever” used the HOA amenities has any bearing:                      The implied-in-fact

contract was that Homeowner was paying for access to the HOA amenities; the actual

number of times Homeowner took advantage of her right of access is not relevant.16

The trial court essentially found that Homeowner was provided this benefit of access,

stating that the HOA provided a swimming pool and tennis courts. See Miles v.

Carolina Forest Ass’n, 167 N.C. App. 28, 37, 604 S.E.2d 327, 333-34 (2004) (holding

that an implied-in-fact contract existed where plaintiffs, who were lot owners in a

subdivision, received benefits to their properties and that plaintiffs were on notice

that these benefits were being incurred).17 The effect of the presence of an implied-


        14 This finding is supported by Homeowner’s admission that the HOA provided her with a key

to the HOA pool; that she used it on occasion (though not often); and that she attended at least one
HOA meeting.
        15 The letter identified in the trial court’s finding is part of the record.
        16 The trial court’s “rarely, if ever,” phrase is imprecise.             The record, however, is
uncontradicted. Homeowner admitted that the HOA provided her with a key to the pool; that she did
use the pool on a few occasions; that she did call the HOA on occasions about HOA issues; and that
she attended at least one HOA meeting.
        17 I note that the HOA also argues “estoppel.” I agree that alternatively Homeowner is

estopped from claiming a refund of her dues. The findings showed that she acted as if she were a
member of the HOA and had access to the HOA amenities.

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          SANCHEZ V. COBBLESTONE HOMEOWNERS ASS’N OF CLAYTON, INC.

                                  DILLON, J., dissenting



in-fact contract, here, is similar to an express contract to join a health club: The dues

are earned by the club whether the member uses the facilities thirty times each

month, or never. Accordingly, I respectfully dissent.

      While I agree with the majority that the HOA is bound by the trial court’s

findings, I note that many of the statements designated as “findings” are actually

mislabeled conclusions of law. For instance, the trial court’s statement that the HOA

“had no legal right to require or receive payments from [Homeowner]” is clearly a

legal conclusion.

      Also, the trial court’s statement that “[Homeowner] … had [no] reasonable way

of knowing that there was no legal obligation” to pay assessments is a conclusion of

law. Whether Homeowner had a legal obligation to pay dues is a question of law.

And the statement that Homeowner had no reasonable way of knowing that her home

was not part of the HOA declaration is incorrect as a matter of law. Specifically, our

Supreme Court has long recognized the bedrock principle that, as a matter of law, “a

purchaser [of real estate] is charged with notice of the contents of each recorded

instrument constituting a link in [her] chain of title and is put on notice of any fact

or circumstance affecting [her] title which any such instrument would reasonably

disclose.” Randle v. Grady, 224 N.C. 651, 656, 32 S.E.2d 20, 22 (1944). See also

Hughes v. N.C. State Highway, 275 N.C. 121, 130, 165 S.E.2d 321, 327 (1969); Turner

v. Glenn, 220 N.C. 620, 625, 18 S.E.2d 197, 201 (1942); Holmes v. Holmes, 86 N.C.



                                            3
            SANCHEZ V. COBBLESTONE HOMEOWNERS ASS’N OF CLAYTON, INC.

                                       DILLON, J., dissenting



205, 209 (1882); Harborgate Prop. Owners. Ass’n v. Mt. Lake Shore, 145 N.C. App.

290, 293-94, 551 S.E.2d 207, 210 (2001).18

       Finally, I note that the HOA states in its brief that “[t]he findings of fact in

this matter simply do not support the trial court’s conclusion of law that

[Homeowner’s] payment of assessments to [the HOA] unjustly enriched [the HOA].”

Assuming that this statement is sufficient to preserve our consideration beyond the

HOA’s arguments concerning an implied-in-fact contract and estoppel, I note that the

Supreme Court has held that an unjust enrichment occurs where a party to a contract

which is technically unenforceable “expends money as contemplated by the contract,

and the other party to the contract consciously receives or accepts the benefits thereof

and then fails or refuses to perform his part of the special contract[.]” Wells v.

Foreman, 236 N.C. 351, 354, 72 S.E.2d 765, 767 (1952). Here, Homeowner did expend

money. The trial court’s findings, however, also reveal that the HOA did not fail or

refuse to perform its part of the agreement, but in fact recognized Homeowner as a

member of the HOA and provided her with full access to its amenities. Therefore,

based on Wells, the HOA has not been unjustly enriched.




       18  Any suggestion that the HOA has failed to challenge the mislabeled conclusions of law would
be overly technical. Though the HOA may not have referred to the trial court’s mislabeled conclusions
expressly, the HOA’s main argument is that the Homeowner did have a legal obligation to pay dues,
based on a contract, implied-in-fact, in return for the years of access she had to the HOA amenities.

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