                                    NO. COA13-681

                      NORTH CAROLINA COURT OF APPEALS

                             Filed: 1 April 2014


FEDERAL POINT YACHT CLUB
ASSOCIATION, INC., a North
Carolina Corporation,
     Plaintiff,

    v.                                      New Hanover County
                                            No. 12 CVS 190
GREGORY MOORE,
     Defendant.


    Appeal by defendant from orders entered 18 September and 18

October 2012 by Judge W. Allen Cobb, Jr., in New Hanover County

Superior Court.      Heard in the Court of Appeals 5 November 2013.


    Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan,
    L.L.P., by Steven M. Sartorio, and the Law Offices of G.
    Grady Richardson, Jr., P.C., by G. Grady Richardson, Jr.,
    for plaintiff-appellee.

    Chleborowicz   Law    Firm,   PLLC,    by              Christopher         A.
    Chleborowicz, for defendant-appellant.


    BRYANT, Judge.


    An    association      has   representational     standing    to   bring    a

lawsuit   provided    at    least    one   of   its   members    has   suffered

imminent harm. Where a defendant fails to join necessary parties

to his action, a dismissal of his claim pursuant to N.C. R. Civ.

P. 12(b)(7) is appropriate.           Where a restrictive covenant must
                                           -2-
be enforced, a permanent injunction is the proper remedy.                                A

trial court has discretion to award injunctive relief upon its

weighing and balancing of the parties’ equities.                             However, a

permanent injunction that prohibits contact between defendant

and others without establishing specific boundaries as to when,

where, and how the injunction applies is overly broad.

      Plaintiff Federal Point Yacht Club Association (“FPYC”) is

a   residential    water-access           community      with    appurtenant        marina

facilities      located     in        Carolina    Beach.        FPYC    has    eighteen

residential lots, a clubhouse, pool, and marina with 110 boat

slips.    FPYC is governed by a recorded Declaration of Covenants,

which is enforced by a board comprised of community members.

Defendant Gregory Moore owns                   a residence and two boat slips

within FPYC.

      On 12 August 2010, Moore filed a complaint against FPYC,

members    of   FPYC’s     board,        and    FPYC’s     dockmaster       Randy   Simon

(“Simon”).        Moore’s       complaint        alleged      that   FPYC     fined    him

excessively,     FPYC     and    Simon     engaged       in   unfair   and    deceptive

trade practices, Simon abused legal process, and FPYC and its

board    were   negligent        in    hiring    Simon     as   dockmaster.           Moore

sought compensatory, treble, and punitive damages.                      FPYC filed a

motion to dismiss for failure to join all necessary parties
                                          -3-
pursuant     to    North    Carolina      Rules     of     Civil       Procedure,    Rule

12(b)(7).       On 11 October 2010, this motion was granted by Judge

W.   Allen      Cobb,     Jr.,    dismissing        Moore’s    complaint         without

prejudice.

     On 4 March 2011, FPYC’s board conducted a hearing regarding

Moore’s violations of FPYC’s rules.                 In a final decision issued

22 April 2011, FPYC’s board found that Moore had damaged water

faucets on one of FPYC’s docks; damaged the bathrooms in the

clubhouse;      allowed     his   dog    to   run    without       a    leash   on   FPYC

property; committed acts of harassment and intimidation against

FPYC board members, residents, and guests; impermissibly moved a

concrete parking bumper; and did not follow FPYC’s rules when

parking and storing a boat trailer.                  Moore was assessed a fine

of $496.80 which was paid.

     On 5 November 2011, FPYC’s board conducted a second hearing

regarding Moore’s continued violation of FPYC rules.                             In the

second hearing, the FPYC board found that Moore continued to

violate association rules despite having agreed to comply with

the board’s decision of 22 April.                 Specifically, the FPYC board

found    that     Moore    violated     FPYC’s     rules    regarding       threatening

and/or    offensive       conduct,      signage,    property       damage,      dockage,

parking, bike riding on docks, and keeping his dog on a leash.
                                        -4-
Moore     was     assessed     total   fines     of      $550.00    and       his     FPYC

membership rights were suspended for a period of sixty days.

       On 17 January 2012, FPYC filed an action against                             Moore

(hereafter “defendant”) seeking a temporary restraining order, a

preliminary injunction          and a       permanent injunction restraining

him from continuing to violate FPYC’s rules.1                      On 25 January,

defendant       filed    an   answer   and    counterclaims        for       unfair    and

deceptive trade practices; abuse of process; negligent hiring,

retention, and supervision of dockmaster; negligent infliction

of     emotional    distress;     intentional         infliction      of      emotional

distress; and punitive damages.               On 26 March 2012, FPYC filed a

response     to    defendant’s    counterclaims,         including       a    motion    to

dismiss for failure to join all necessary parties pursuant to

N.C.    R.   Civ.   P.    12(b)(7),    as    well   as    for   res      judicata      and

collateral estoppel.          Defendant filed a motion to dismiss FPYC’s

claims pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7), and 12(c)

on 25 July 2012.



1
  FPYC alleged that defendant violated FPYC’s rules by spraying
ketchup on the fence and home of the FPYC board president,
shining a spotlight into the home of the board president,
repeatedly using profane language towards members of the FPYC
board, and sending threatening messages to board members. Other
allegations of rule violations against defendant included
defendant riding his bike along the marina’s docks, defendant’s
dog running loose without a leash, and defendant defacing the
FPYC clubhouse bathrooms with feces.
                                            -5-
       On 18 September 2012, Judge Cobb granted FPYC’s motion and

dismissed        defendant’s         counterclaim        with       prejudice      based    on

defendant’s failure to join necessary parties.                             That same day,

Judge Cobb entered a second order denying defendant’s motions to

dismiss FPYC’s complaint pursuant to N.C. R. Civ. P. 12(b)(1),

(6), (7), and 12(c), and for FPYC’s lack of standing to sue on

behalf of its members.

       On   28    September        2012,   defendant       filed      a    new    motion    to

dismiss pursuant to N.C. R. Civ. P. 12(b)(6) on grounds that

FPYC   already         had    an     adequate     remedy       at    law    and     thus,   an

injunction       was     unnecessary.           On   5   October      2012,       FPYC   filed

motions     for     summary          judgment     and    for    permanent         injunction

against defendant.             On 15 October 2012, Judge Cobb heard FPYC’s

motions     for     summary          judgment     and    permanent         injunction       and

defendant’s second motion to dismiss.                     On 18 October 2012, Judge

Cobb    issued      an       order     granting      FPYC’s     motions       for    summary

judgment and permanent injunction and denying defendant’s motion

to dismiss.       Defendant appeals.

                             ________________________________

       On appeal, defendant raises the following issues: whether

the trial court erred (I) in its first 18 September 2012 order

denying defendant’s motion to dismiss; (II) in its second 18
                                             -6-
September 2012 order dismissing defendant’s counterclaim; (III)

in   its   18    October      2012   order     denying          defendant’s         motion   to

dismiss and granting FPYC’s motions for summary judgment and

permanent injunction; (IV) in its 18 October 2012 order granting

FPYC’s     motions     for    summary       judgment       and    permanent     injunction

where the permanent injunction applied to undefined persons and

places; and (V) in its 18 October 2012 order granting FPYC’s

motion for summary judgment.

                                                   I.

      Defendant argues the trial court erred in its 18 September

2012 order denying defendant’s motion to dismiss pursuant to

N.C. R. Civ. P. 12(b)(1), (b)(6) and (b)(7).                          We disagree.

      A    motion      to    dismiss    under        Rule       12(b)(1)      for    lack    of

jurisdiction      is    reviewed       by   this        Court    de   novo.         Fuller    v.

Easley, 145 N.C. App. 391, 395, 553 S.E.2d 43, 46 (2001).                                   “For

a motion to dismiss based upon Rule 12(b)(6), the standard of

review     is    whether,     construing        the       complaint      liberally,          the

allegations of the complaint, treated as true, are sufficient to

state a claim upon which relief may be granted under some legal

theory.”        Strates Shows, Inc. v. Amusements of Am., Inc., 184

N.C. App. 455, 460, 646 S.E.2d 418, 423 (2007) (citation and

quotation omitted).
                                      -7-
      In   its   first   18   September     2012    order,    the   trial   court

observed that defendant filed the following motions:

            1.   A Motion to Dismiss [FPYC]’s Complaint
                 filed pursuant to Rules 12(b)(1) and
                 12(c) of the North Carolina Rules of
                 Civil Procedure because [FPYC] . . .
                 lacked standing to bring the claim(s) set
                 forth in its Complaint because (a) the
                 FPYC does not have standing to seek
                 permanent injunctions on behalf of an
                 individual, (b) even if the FPYC, as a
                 non-profit corporation, has standing to
                 bring   an  action   as  set   forth  and
                 described in its Complaint, each and
                 every member on whose behalf such relief
                 is sought must also have standing to seek
                 the same relief and that those individual
                 members had previously given up their
                 rights to seek the remedies set forth in
                 the Complaint, and (c) the relief sought
                 by [FPYC] in its Complaint has been, at
                 least in part, rendered moot.

            2.   A Motion to Dismiss [FPYC]’s Complaint
                 filed pursuant to Rule 12(b)(6) of the
                 North Carolina Rules of Civil Procedure
                 because the basis that [FPYC] (a) did not
                 affirmatively plead conditions precedent
                 to the filing of its Complaint and (b)
                 [FPYC] lacked standing to bring the
                 claims set forth in its Complaint.

            3.   A Motion to Dismiss [FPYC]’s Complaint
                 filed pursuant to Rule 12(b)(7) of the
                 North Carolina Rules of Civil Procedure
                 because [FPYC] failed to join necessary
                 and indispensable parties to the action.

The trial court then held “that Defendant’s Motions to Dismiss

the   remaining    claims     set   forth   in     [FPYC’s]   Complaint     filed
                                        -8-
pursuant to Rules 12(b)(1), 12(b)(6), 12(b)(7) and 12(c) are

hereby DENIED.”          Defendant      contends       that     the    trial      court

erred in denying his motions to dismiss under Rules 12(b)(1) and

(b)(6) because FPYC lacked standing to represent its members.

“A lack of standing may be challenged by motion to dismiss for

failure to state a claim upon which relief may be granted."

Energy Investors Fund, L.P. v. Metric Constructors, Inc., 351

N.C. 331, 337, 525 S.E.2d 441, 445 (2000) (citation omitted).

"Standing refers to whether a party has a sufficient stake in an

otherwise    justiciable     controversy        such    that     he    or   she    may

properly seek adjudication of the matter."                    Am. Woodland Indus.

v. Tolson, 155 N.C. App. 624, 626—27, 574 S.E.2d 55, 57 (2002)

(citations omitted).       To have standing, a party must be a "real

party in interest."       Energy Investors Fund, 351 N.C. at 337, 525

S.E.2d at 445.

    Defendant      specifically        argues   that    FPYC     lacked     standing

because    fourteen     members   of    FPYC    dismissed       their    no-contact

claims against him with prejudice.              An association like FPYC has

representational standing for its members if: “(a) its members

would otherwise have standing to sue in their own right; (b) the

interests it seeks to protect are germane to the organization's

purpose;    and   (c)   neither   the     claim    asserted      nor    the    relief
                                           -9-
requested requires the participation of individual members in

the lawsuit.”         River Birch Assocs. v. City of Raleigh, 326 N.C.

100, 130, 388 S.E.2d 538, 555 (1990) (citation omitted).                            “The

clear language of River Birch . . . does not require a threat of

immediate injury to each and every individual member of the

association      in    order   for   the    association        to    have    standing.”

State Emps. Ass’n of N.C. v. State, 154 N.C. App. 207, 219, 573

S.E.2d 525, 533 (2002) (Tyson, J., dissenting), overruled on

other grounds by State Emps. Ass’n of N.C. v. State, 357 N.C.

239, 580 S.E.2d 693 (2003).

    Here, defendant contends that FPYC lacked representational

standing    because      by    voluntarily        dismissing        their    no-contact

orders    with   prejudice,      fourteen        of   FPYC’s    members      forfeited

their individual standing because they no longer suffered from

an immediate harm caused by defendant.                      Defendant’s argument

lacks merit for, as previously discussed, FPYC had standing as

its own corporate entity to bring suit, regardless of the claims

brought    by    its    fourteen     individual       members.         See    Warth    v.

Seldin,    422    U.S.    490,   511   (1975) (“An       association          may   have

standing in its own right to seek judicial relief from injury to

itself    and    to    vindicate     whatever      rights   and       immunities      the

association itself may enjoy.").                 Furthermore, our Supreme Court
                                                -10-
has    held    that    not    every       member       of    an    association        must    have

suffered an immediate harm in order for the association to have

standing to seek relief from such harm.                             See River Birch, 326

N.C. at 130, 388 S.E.2d at 555.                           Accordingly, the trial court

did    not    err     in    its    first        18   September       2012     order     denying

defendant’s         motion    to     dismiss         pursuant       to    N.C.   R.    Civ.     P.

12(b)(1)       and     (b)(6)       for     FPYC’s          lack     of     representational

standing.

       Defendant further argues that FPYC lacked standing because

the dismissal with prejudice of fourteen no-contact orders by

FPYC    members       against      him    served       as    res    judicata     to     bar    any

claims    by    FPYC       against       him.        On     13    January    2012,     fourteen

individual members of FPYC, including FPYC’s board of directors

and their respective spouses as well as FPYC’s dockmaster and

his wife, filed no-contact orders for stalking or nonconsensual

sexual conduct against defendant.                          These no-contact complaints

stated that:

               Defendant     has    repeatedly      tormented,
               terrorized, or terrified the Plaintiff, a
               member of the Board of Directors (“Board”)
               of [FPYC] or a spouse thereof, with the
               intent    of   placing    the   Plaintiff    in
               reasonable fear for the Plaintiff’s safety
               or the safety of the Plaintiff’s immediate
               family or close personal associates by
               engaging in hostile, threatening behavior
               directed     toward    the    Board,     FPYC’s
                                   -11-
            Dockmaster, and/or the spouses of the same.
            By way of example and not limitation,
            Defendant has (i) trespassed upon the land
            of . . . the president of the Board, and
            sprayed a blood-like substance all over the
            fence, gate, and steps of his home (1/2/12);
            (ii) used a weapon or other dangerous
            instrument to slash the tires of the spouse
            of   FPYC’s   Dockmaster   (12/31/11);    (iii)
            threatened physical violence and/or bodily
            injury against FPYC’s Dockmaster (10/18/11);
            and,   (iv)    threatened   to    kill   FPYC’s
            Dockmaster (7/10/10). There are many more
            examples.    All   of   Defendant’s    conduct,
            regardless of to whom it was immediately
            directed, was intended to place and did
            place the Board’s members and their spouses
            in reasonable fear for their safety and/or
            the safety of their family and/or close
            personal associates, as it was in apparent
            retaliation for the Board’s censuring and
            fining Defendant for his repeated violations
            of    the    Rules    and    Regulations    and
            Declarations of FPYC. Defendant’s acts of
            aggression    are   escalating,    and,   given
            Defendant’s frequent apparent intoxication
            and/or    inability    to   control    himself,
            Plaintiff fears for the Plaintiff’s safety
            and the safety of the Plaintiff’s immediate
            family and close personal associates.

All fourteen no-contact orders were voluntarily dismissed with

prejudice on 23 July 2012.

       Meanwhile, on 17 January 2012, five days after fourteen

FPYC    members   filed   no-contact   orders   against   defendant,   FPYC

filed as a corporation a complaint against defendant alleging

that:

            14. [Defendant], while a member of [FPYC],
                    -12-
has repeatedly violated various provisions
of the Declaration, By-Laws, and/or Rules
and Regulations of [FPYC].

15. [Defendant] has been notified of his
potential violations of the Declaration, By-
Laws, and/or Rules and Regulations of [FPYC]
and has on two occasions in the past year
had hearings before the Board of Directors
of [FPYC] to review and consider those
potential violations.

16. Most recently, the Board of Directors of
[FPYC], in a decision dated 1 December 2011,
determined [defendant] had violated        the
Declaration,    By-Laws,   and/or   Rules  and
Regulations of [FPYC] through, inter alia,
(a)     his      intimidating,    threatening,
harassing, profanity-laden, and nuisance-
creating actions, and his disorderly conduct
directed at the Board of Directors and
[FPYC]’s    Dockmaster,   including   but  not
limited to his offensive, verbal assault on
[FPYC]’s Dockmaster which was captured on
videotape on 18 October 2011; (b) his
destruction of property by, on information
and belief, urinating, defecating, and/or
placing soiled toilet paper on signs hung by
[FPYC] in the men’s bathroom of the FPYC
clubhouse; and, (c) continuing to violate
[FPYC]’s Declaration, By-Laws, and/or Rules
and Regulations.

17. Pursuant to the Board of Directors’
hearing decision dated 1 December 2011
(“Hearing Decision”), [defendant] and his
wife were assessed fines, and [defendant’s]
membership rights in [FPYC] were suspended
for sixty (60) days beginning 4 December
2011 and ending 3 February 2012.

18. During the period of [defendant’s]
suspension of his membership rights in
[FPYC], he has no right to access or use the
                         -13-
    common areas of [FPYC].

    19. Since 4 December 2011, [defendant] has
    repeatedly   violated    the    terms   of  the
    suspension of his membership rights by,
    inter alia, (a) purposefully accessing the
    common areas by the docks and clubhouse of
    [FPYC]; (b) on information and belief,
    entering the parking lot of the clubhouse on
    31 December 2011 and using a weapon or other
    dangerous instrument to slash the tires of
    the wife of [FPYC’s] Dockmaster (she and her
    husband, the Dockmaster, both members of
    [FPYC]),   which   event    was    captured  on
    videotape; and, (c) on 2 January 2012,
    accessing the common areas by the docks and
    smearing, placing, and applying a dark red
    substance, which had the appearance of blood
    but which turned out to be ketchup, on the
    fencing, gate and steps of the home of
    [FPYC’s] President, with, on information and
    belief, the intent and purpose to further
    intimidate, threaten, stalk, annoy, harass
    and   terrorize   [FPYC’s]     President,   the
    President’s spouse, all of the other members
    of [FPYC’s] Board of Directors and their
    respective spouses, and all other members of
    [FPYC], which event, too, was captured on
    videotape.

    20. [Defendant’s] past behavior and present
    violent outbursts are in retaliation against
    the Board of Directors for their enforcement
    of the Declaration, By-Laws, and/or Rules
    and Regulations of [FPYC].

    21. [FPYC] fears for the safety of its Board
    of Directors, its Dockmaster, its other
    members, and its property due to the
    violent, unpredictable, and uncontrollable
    behavior of [defendant].

Defendant contends that because the allegations in the no-
                                       -14-
contact orders differ from those in FPYC’s complaint only to the

extent that the no-contact orders were brought by individual

members    of    FPYC   while    FPYC’s   complaint   was     brought   by   the

corporation itself, res judicata should act as a bar against

FPYC’s complaint.

      “Under the doctrine of res judicata or ‘claim preclusion,’

a final judgment on the merits in one action precludes a second

suit based on the same cause of action between the same parties

or their privies.”        Whitacre P’ship v. Biosignia, Inc., 358 N.C.

1,   15,   591   S.E.2d   870,   880    (2004)   (citations    omitted).      “A

dismissal with prejudice is an adjudication on the merits and

has res judicata implications.”           Caswell Realty Assocs., I, L.P.

v. Andrews Co., 128 N.C. App. 716, 720, 496 S.E.2d 607, 610

(1998) (citations omitted).

      FPYC’s      complaint     was    brought   by   FPYC     acting   as    “a

corporation organized and existing under the laws of the State

of North Carolina doing business in New Hanover County, North

Carolina.”       As such, FPYC was not the same party or privy to the

fourteen individual members of FPYC who filed no-contact orders

against defendant.        See Troy Lumber Co. v. Hunt, 251 N.C. 624,

627, 112 S.E.2d 132, 135 (1960) (holding that although a person

may be a shareholder or an officer of a corporation, that is not
                                    -15-
sufficient to establish privity for purposes of res judicata

between the shareholder or officer and the corporation).

      Defendant    further     contends    that    FPYC      is   barred   by   res

judicata under this Court’s reasoning in Caswell Realty.                           In

Caswell Realty, the plaintiff filed an initial lawsuit which was

settled and dismissed with prejudice.              The plaintiff then filed

two   additional    lawsuits    based     upon    the    same     allegations      as

alleged in the first lawsuit.           The defendants moved for summary

judgment, which was granted by the trial court.                   The trial court

held that because the allegations and parties were the same in

all three claims raised by the plaintiff, the second and third

claims were barred by res judicata.               Caswell Realty, 128 N.C.

App. 716, 496 S.E.2d 607.

      Here, as already discussed, the no-contact orders did not

involve the same parties or privies as FPYC’s complaint. As

such, Caswell Realty is not applicable to the instant case. See

also Smoky Mountain Enters., Inc. v. Rose, 283 N.C. 373, 196

S.E.2d   189   (1973)   (res    judicata     barred      a   new    action    by    a

corporation’s      president     against     the        defendant     where     the

corporation’s president had brought a prior action against the

same defendant for the same relief); Thompson v. Lassiter, 246

N.C. 34, 97 S.E.2d 492 (1957) (holding that a person who is not
                                          -16-
a party to an action can be bound by the adjudication of a

litigated      matter    only    when     that   person      controls     an    action,

individually or in cooperation with others).

                                          II.

    Defendant next argues that the trial court erred in its

second    18      September       2012      order     dismissing          defendant’s

counterclaim      with    prejudice        pursuant     to    N.C.       R.    Civ.     P.

12(b)(7).      We disagree.

    North       Carolina        General     Statutes,     section        1A-1,        Rule

12(b)(7), holds that “[e]very defense, in law or fact, to a

claim    for    relief     in    any      pleading,   whether        a    claim       [or]

counterclaim . . . may at the option of the pleader be made by

motion [for] [f]ailure to join a necessary party.”                            N.C. Gen.

Stat. § 1A-1, Rule 12(b)(7) (2013).

            When   faced  with   a   motion  under    Rule
            12(b)(7), the court will decide if the
            absent party should be joined as a party. If
            it decides in the affirmative, the court
            will order him brought into the action.
            However, if the absentee cannot be joined,
            the court must then determine, by balancing
            the guiding factors set forth in Rule 19(b),
            whether to proceed without him or to dismiss
            the action. . . .     A dismissal under Rule
            12(b)(7)   is  not   considered   to   be   on
            the merits and is without prejudice.

Crosrol Carding Dev., Inc. v. Gunter & Cooke, Inc., 12 N.C. App.

448, 453—54, 183 S.E.2d 834, 838 (1971) (citation omitted).
                                    -17-
    On   12    August   2010,   defendant    filed    a    complaint   against

FPYC.   On   11   October   2010,   the    trial   court    issued   an    order

dismissing defendant’s complaint without prejudice pursuant to

N.C. R. Civ. P. 12(b)(7) for failure to join necessary parties.

Defendant did not appeal from this order.

    On 25 January 2012, defendant filed a counterclaim against

FPYC; on 29 March 2012, FPYC moved to dismiss the counterclaim

pursuant to Rule 12(b)(7) for failure join necessary parties.                   A

hearing was held on 9 August 2012, and in an order dated 18

September 2012, the trial court granted FPYC’s motion to dismiss

dismissing    defendant’s    counterclaims     with   prejudice.          In   its

order, the trial court noted that:

             5. The allegations of the Counterclaim filed
             by [defendant] in this action are based upon
             the same factual allegations that formed the
             basis of the Complaint filed by [defendant]
             in Civil Action Number 10 CVS 3796.2      In
             addition, all of the claims that are now set
             forth in [defendant’s] Counterclaim were
             included as part of the claims set forth in
             the Complaint [defendant] filed in Civil
             Action Number 10 CVS 3796. The claims as set
             forth in [defendant’s] Counterclaim are a
             restatement of the same claims he asserted
             against FPYC in his Complaint. In addition,
             [defendant] makes the same request for
             damages against the FPYC in his Counterclaim
             that he made in his “original” Complaint.

2
  Defendant’s complaint, filed 12 August 2010, was docketed under
10 CVS 3796. This complaint was dismissed by the trial court on
11 October 2010 without prejudice.
                                   -18-


The trial court concluded that:

            BASED UPON THE FOREGOING, and as with the
            Motion to Dismiss filed by the FPYC to the
            Complaint filed by [defendant] in Civil
            Action Number 10 CVS 3796, this Court
            determines as a matter of law that Plaintiff
            FPYC’s   Motion  to   Dismiss  [defendant’s]
            Counterclaim for failure to join necessary
            and indispensable parties should be and is
            hereby ALLOWED.

    Here,    defendant’s   first   complaint   was   dismissed   without

prejudice by the trial court under Rule 12(b)(7) for failure to

join necessary parties.    Under Rule 41(b),

            [f]or failure of the plaintiff to prosecute
            or to comply with these rules or any order
            of court, a defendant may move for dismissal
            of an action or of any claim therein against
            him. . . .    Unless the court in its order
            for   dismissal   otherwise   specifies,   a
            dismissal under this section . . . operates
            as an adjudication upon the merits. If the
            court specifies that the dismissal of an
            action commenced within the time prescribed
            therefor, or any claim therein, is without
            prejudice, it may also specify in its order
            that a new action based on the same claim
            may be commenced within one year or less
            after such dismissal.

N.C. Gen. Stat. § 1A-1, Rule 41(b) (2013) (emphasis added).

    In   its    11   October   2010   order    dismissing   defendant’s

complaint, the trial court did not specify a period of time for

defendant to refile his complaint; as such, defendant had a

statutory period of one year from the date of that order to
                                               -19-
refile      his    complaint.           When     defendant        failed       to     refile      his

complaint or appeal the trial court’s order of 11 October 2010,

defendant’s        counterclaim          filed      25    January       2012        was    properly

dismissed.          See    id.;    see     also       id.      §1A-1,       Rule     41(c)      (“The

provisions         of     this    rule     apply          to    the     dismissal          of     any

counterclaim, crossclaim, or third-party claim.”).

                                         III. & IV.

       In   his     third    and    fourth          arguments      on       appeal,       defendant

contends that the trial court erred in its 18 October 2012 order

denying      defendant’s         motion        to     dismiss         and     granting       FPYC’s

motions      for    summary       judgment       and      permanent          injunction         where

there    were      adequate      remedies        at      law    and     the    injunction         was

overly broad.

       “A mandatory injunction is the proper remedy to enforce a

restrictive        covenant        []     and       to    restore        the        status      quo.”

Wrightsville Winds Townhouses Homeowners' Ass’n. v. Miller, 100

N.C.    App.      531,    536,     397    S.E.2d         345,     347       (1990)     (citations

omitted).          "Whether        injunctive            relief    will        be     granted     to

restrain the violation of such restrictions is a matter within

the sound discretion of the trial court . . . and the appellate

court will not interfere unless such discretion is manifestly

abused."       Buie v. High Point Assocs. Ltd. P’ship, 119 N.C. App.
                                         -20-
155, 161, 458 S.E.2d 212, 216 (1995) (citation omitted).

       North Carolina Rules of Civil Procedure, Rule 65 requires

that    “[e]very    order    granting      an       injunction      .    .    .    shall   be

specific in terms [and] shall describe in reasonable detail, and

not by reference to the complaint or other document, the act or

acts enjoined or restrained.”                  N.C. Gen. Stat. § 1A-1, Rule

65(d)    (2013).      This    Court      has    characterized           the    specificity

inquiry to be conducted under Rule 65 as a determination of

“whether the party enjoined can know from the language of the

order itself, and without having to resort to other documents,

exactly what the court is ordering it to do.”                                 Auto. Dealer

Res., Inc. v. Occidental Life Ins. Co., 15 N.C. App. 634, 642,

190 S.E.2d 729, 734 (1972).

       Defendant argues that the trial court erred in granting

FPYC’s    motion     for    permanent     injunction        because          FPYC    had   an

adequate remedy at law.            Specifically, defendant contends that

because individual members of FPYC could seek no-contact orders

against him, FPYC had adequate remedies at law.                                   As already

discussed      in   Issue    I,   FPYC    had       standing   to       pursue      a   claim

against       defendant,    independent        of    any   claims       FPYC’s       members

could bring against defendant.                 Moreover, as a corporate entity

FPYC    had    representational       standing        to   bring    a     claim      against
                                  -21-
defendant on behalf of FPYC’s full membership.             See Warth, 422

U.S. at 511; Troy Lumber, 251 N.C. at 627, 112 S.E.2d at 135.

    Here, FPYC’s complaint indicated that defendant continued

to violate FPYC’s rules and regulations repeatedly, even after

defendant    agreed   to   no-contact    orders   issued    for   fourteen

individual members of FPYC:

            23. Based upon the allegations contained in
            this Verified Complaint, [FPYC] is entitled
            to an adjudication that [defendant] has
            violated the Declaration, By-Laws, and/or
            Rules and Regulations of the [FPYC]; has
            violated    [FPYC]’s    suspension    of   his
            membership    rights;     and,    should    be
            permanently enjoined from further violations
            of   [FPYC]’s   1    December   2011   Hearing
            Decision.

            24. [FPYC] has demonstrated a likelihood of
            success on the merits of this action against
            [defendant] for the issuance of a temporary
            restraining order and preliminary injunction
            against [defendant] during the pendency of
            this action from taking any action to
            violate the Declaration, By-Laws, Rules and
            Regulations, and decisions of the Board of
            Directors and to have no contact with any of
            [FPYC]’s Board members and their spouses
            except through his legal counsel during the
            pendency   of    this   Court’s    temporary,
            preliminary and permanent injunction against
            him and all such terms and conditions as the
            Court may place on [defendant] to control
            his   menacing,    offensive   and    abusive
            behavior.

            25. Further, based upon the allegations of
            this   Verified   Complaint,  [FPYC]   has
            demonstrated it will sustain irreparable
                                   -22-
            damage, namely bodily injury or death of its
            Board of Directors, Dockmaster, or other
            members and/or property damage for which no
            reasonable redress is afforded by law and to
            which [FPYC] in equity and good conscience
            should not be required to submit.

            26. For the foregoing reasons, [FPYC] moves
            the Court for a permanent injunction against
            [defendant], restraining him from taking any
            action to violate his suspension and other
            provisions contained in [FPYC]’s 1 December
            2011 Hearing Decision, including a permanent
            order enjoining [defendant] from engaging in
            any further menacing, offensive, threatening
            and abusive conduct towards [FPYC]’s Board
            members,   their  respective   spouses,  the
            Dockmaster and his spouse, employees and
            other representatives of [FPYC], and all
            other members of [FPYC].

    In its 15 October 2012 order, the trial court held that:

            [b]y virtue of this Order, and for so long
            as [defendant] remains and/or is a member in
            [FPYC], [defendant] (including those acting
            through [defendant]) shall be and is hereby
            PERMANENTLY RESTRAINED AND ENJOINED from
            engaging   in  the   same  or  substantially
            similar violative conduct, behavior and
            actions as described and set forth in
            [FPYC]'s Hearing Decisions of April and
            December 2011 . . . .

The trial court then listed seventeen “prohibited actions” which

mirrored     defendant’s    alleged      violations   stated   in   FPYC’s

complaint.    As the trial court made findings of fact in the 18

September    and   15   October   2012    orders   regarding   defendant’s

behavior and conduct towards FPYC and its members and concluded
                                        -23-
that defendant’s behavior and conduct was violative of FPYC’s

rules and regulations, the trial court acted within its sound

discretion in granting FPYC’s motion for summary judgment and a

permanent injunction against defendant.

    Defendant also contends that the 18 October 2012 order is

overly broad because the language of the order’s “prohibitive

actions”    extends    to    persons,      locations,    and     dates    that    are

currently    unknown        to    defendant.          Specifically,       defendant

contends that he “has absolutely no discernible standard as to

the persons, places and times to which the restraints apply.”

Defendant   further    argues       that   the   language      of   the   order    is

overly   broad   because         FPYC   failed   to    present      evidence     that

defendant had issues with any members of FPYC other than the

FPYC board president and dockmaster.

    Defendant’s only citations of authority for this argument

concern the proposed standard of review.                 Defendant urges this

Court to review this issue de novo, to “review and weigh the

evidence and find facts for ourselves.”                 We decline defendant’s

request and apply the standard of review we set out earlier in

this opinion: "[w]hether injunctive relief will be granted to

restrain the violation of such restrictions is a matter within

the sound discretion of the trial court . . . and the appellate
                                          -24-
court will not interfere unless such discretion is manifestly

abused."     Buie, 119 N.C. App. at 161, 458 S.E.2d at 216.

      In    its     order      granting      a    permanent      injunction        against

defendant, the trial court noted that “[defendant] shall be and

is hereby PERMANENTLY RESTRAINED AND ENJOINED from engaging in

the same or substantially similar violative conduct, behavior

and   actions       as    described    and       set   forth   in   [FPYC]’s       Hearing

Decisions of April and December 2011, both of which are . . .

fully incorporated herein by reference.”                       FPYC’s motion to the

trial      court    specifically       requested         “a    permanent        injunction

against Defendant restraining and precluding him from engaging

in    recurring          and   similar       violations        of   [FPYC]’s        rules,

regulations,         restrictive         covenants,           bylaws      and      hearing

decisions.”         The trial court’s order stated that “Defendant’s

Prohibited         Actions     shall     include,       without        limitation,     the

following:”

             (1) screaming profanities at, towards, or in
             the general direction of any [FPYC] member,
             their family members or guests, [FPYC]’s
             Board of Director members (“BOD”), and/or
             [FPYC]’s     employees    and    independent
             contractors whether in public, in private,
             in person, and/or through the telephone or
             voicemail;

             (2) trespassing and/or entering upon the
             personal property or real property of [FPYC]
             members, their family members or guests,
                    -25-
[FPYC]’s BOD, and/or [FPYC]’s employees and
independent contractors;

(3) having a violent outburst of any kind
whether verbal, physical, or insinuative
toward [FPYC] members, their family members
or guests, [FPYC]’s BOD, and/or [FPYC]’s
employees and independent contractors;

(4) “flipping off” or “giving the finger to”
[FPYC] members, their family members or
guests,   [FPYC]’s   BOD,   and/or   [FPYC]’s
employees and independent contractors;

(5)   shining    bright   lights   (including
flashlights        and/or      high-intensity
spotlights) into or onto the home or
property of [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s     employees     and    independent
contractors;

(6) driving any vehicle toward, in the
direction of, or in such a way or in such
proximity to [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s     employees    and    independent
contractors that it puts the person in fear
of his/her personal safety and/or blocks the
person’s right of way;

(7) “cussing out” any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors    in   public,   through   email,
through     voicemail,     through    internet
postings, text message, or other form of
written or oral communication;

(8) calling any [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s    employees     and    independent
contractors   an    “a******,”   “dickhead,”
“pervert,” or other derogatory name in
                    -26-
public or in any email, text message,
voicemail,   telephone   call   or   other
interaction with any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors;

(9)   threatening  any   kind of  violence,
retribution, or “pay-back” toward [FPYC]
members, their family members or guests,
[FPYC]’s BOD, and/or [FPYC]’s employees and
independent contractors;

(10) taking any violent or destructive
action toward [FPYC] members, their family
members or guests, [FPYC]’s BOD, and/or
[FPYC]’s     employees     and  independent
contractors and/or toward any such person’s
personal or real property;

(11)   destroying,   vandalizing,  defacing,
marking, or damaging (including by urinating
on, spraying ketchup on, slashing the tires
of, dropping electrical cords into the
water, etc.) the real or personal property
of [FPYC] and any [FPYC] members, their
family members or guests, [FPYC]’s BOD,
and/or [FPYC]’s employees and independent
contractors;

(12) moving or removing any structure,
barriers, signs, equipment or safety device
found on or within the common areas or
roadways of [FPYC];

(13) docking or causing to be docked any
unauthorized boat or vessel in any slip or
dock at [FPYC] or within the common area of
[FPYC];

(14) “mooning,” exposing himself, grabbing
his crotch, sticking hoses between his legs,
or making any profane and/or obscene gesture
toward any [FPYC] members, their family
                                     -27-
             members or guests, [FPYC]’s BOD, and/or
             [FPYC]’s     employees    and   independent
             contractors, whether in person or on any
             kind or type of video or recording device
             located on a member’s property;

             (15) depositing dock carts, garbage or
             refuse, including but not limited to empty
             beer cans and broken chairs or the like,
             upon the property of any [FPYC] member or
             their family members or guests, [FPYC]’s
             BOD,    and/or   [FPYC]’s  employees   and
             independent contractors;

             (16) defacing, marking, vandalizing,                or
             damaging the common areas of [FPYC]; and,

             (17) engaging in any type or kind of
             intimidating,  harassing, and terrorizing
             conduct toward any [FPYC] members, their
             family members or guests, [FPYC]’s BOD,
             and/or [FPYC]’s employees and independent
             contractors.

     Defendant     contends   that    the    language    of   the     permanent

injunction is overly broad, arguing that “[u]nder the language

of the Order as written, the restraints could apply: to persons

whom [d]efendant does not even know . . . at locations which

[defendant] does not know apply . . . and at times/circumstances

that [defendant] does not know applies.”              We agree.       While the

specific types of behaviors which are prohibited are themselves

fairly clear, categories 1, 3—4, 7—10, 14, and 17 ban behavior

in   vague    or   unspecified   terms      as   to   persons,    times,    and

geographic scope.       Although some of the prohibited behavioral
                                                -28-
categories are limited to the geographic boundaries of FPYC,

such    as     categories         12    (“moving          or    removing         any    structure,

barriers, signs, equipment or safety device found on or within

the    common    areas       or    roadways          of    [FPYC]”),        13     (“docking      or

causing to be docked any unauthorized boat or vessel in any slip

or dock at [FPYC] or within the common area of [FPYC]”), and 16

(“defacing, marking, vandalizing, or damaging the common areas

of [FPYC]”), the majority of the categories lack any specified

boundaries,       thus       implying         an    unlimited         applicability.            See

Norfleet v. Baker, 131 N.C. 99, 102, 42 S.E. 544, 545 (1902)

(“Expressio      unius       est       exclusio       alterius.           The    presumption      is

that,    having       expressed         some,       they       have   expressed          all,   the

conditions       by     which          they    intend          to    be     bound       under   the

instrument.”).

       This     Court       has    previously          upheld        permanent         injunctions

where the prohibited behavior is clearly limited in terms of

geographic scope.            See Matthieu v. Miller, No. COA11-1287, 2012

N.C. App. LEXIS 886 (July 17, 2012) (finding that the trial

court    did    not     abuse      its        discretion        in    upholding         injunctive

relief   where        the    injunction            only   affected         one    lot    within    a

subdivision); Schwartz v. Banbury Woods Homeowners Ass’n, Inc.,

196 N.C. App. 584, 675 S.E.2d 382 (2009) (the trial court did
                                      -29-
not abuse its discretion in granting injunctive relief where the

injunction      was   specifically          limited     to     prohibiting      the

homeowners from permanently storing their RV camper on their

property).      However, as this Court has not previously addressed

the   appropriateness       of   injunctive       relief    which    is   seemingly

unlimited in scope, we find               Webb v. Glenbrook Owners Ass’n,

Inc., 298 S.W.3d 374 (Tex. App. 2009), to be enlightening.

      In Webb, the defendants sued the plaintiffs for breach of

their   declaration    of    covenants      and    sought     injunctive    relief.

The   Texas   Court   of    Appeals       found   the   defendants’       permanent

injunction against the plaintiffs to be vague and overly broad

as the injunction granted relief that went beyond the boundaries

of the defendants’ community.              In finding that the trial court

abused its discretion in issuing the permanent injunction, the

Texas   Court    of   Appeals      noted     that     where    the    injunction’s

prohibited behaviors “requires reference to records outside the

injunction to determine all ‘members, wherever located[,]’” the

trial   court     clearly        abused    its      discretion       because   “the

injunction grants relief beyond that supported by the evidence

by extending outside the physical boundaries of the Glenbrook

community.”     Id. at 386.

      We find that the instant matter is akin to that of Webb, as
                                       -30-
here, FPYC has obtained a permanent injunction against defendant

that prohibits seventeen categories of behavior.                   Although some

of these categories are clearly limited in terms of scope, the

majority of these categories are not.                Moreover, the injunction

grants relief that extends beyond the boundaries of the FPYC

community    or     immediately      identifiable      members     of    the    FPYC

community.     We agree with defendant that the language used in

categories 1, 3—4, 7—10, 14, and 17 is overly broad, as we find

nothing that clearly limits these prohibited behaviors to any

particular   geographic       area,    durational     period     or     immediately

identifiable      persons     even     though      the    evidence       presented

concerned    only    defendant’s      violations     of   FPYC’s      rules    while

within the FPYC community.           As such, we must hold that the trial

court abused its discretion in granting a permanent injunction

with unlimited scope.         Accordingly, we remand to the trial court

solely to limit the scope of the injunction to actions directed

at certain, identified individuals anywhere, such as the FPYC

Board and community residents, or actions directed toward anyone

in certain places, such as within the physical boundaries of the

FPYC community.

    Defendant further argues that the language of the order is

overly   broad      because   FPYC    failed    to    present    evidence       that
                                      -31-
defendant had issues with any members of FPYC other than the

FPYC Board’s president and dockmaster.                Defendant’s argument is

without merit, as his behavior and conduct was directed towards

and affected more members of FPYC than just FPYC’s president and

dockmaster.       A review of the emails sent by defendant indicates

that defendant contacted numerous members of FPYC.                          Defendant

also     verbally     communicated,    both      in   person       and     over     the

telephone, with various FPYC members and their families.                             As

defendant’s       actions   and    behaviors     affected         both     individual

members of FPYC as well as the entire FPYC community, FPYC’s

motion for permanent injunction was meant to prevent defendant

from committing further harm against FPYC, its members and their

guests.     See id.     However, as discussed above, we must remand to

the trial court to have the order’s “prohibited actions” limited

to     certain,     identifiable   individuals,        and    to     the     physical

boundaries of the FPYC community.

                                       V.

       Defendant’s     final   argument     on   appeal      is   that     the    trial

court erred in its 18 October 2012 order granting FPYC’s motion

for summary judgment where there were questions of fact, and

therefore, the trial court should not have granted a permanent

injunction.       We disagree.
                                           -32-
                  Summary judgment is proper when "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 [pursuant
             to] N.C.G.S. § 1A-1, Rule 56(c) (20[13]).
             The trial court must consider the evidence
             in the light most favorable to the non-
             moving party.

Crocker v. Roethling, 363 N.C. 140, 142, 675 S.E.2d 625, 628

(2009) (citations omitted).               This Court reviews a trial court's

order granting or denying summary judgment de novo.                            Builders

Mut. Ins. Co. v. N. Main Constr., Ltd., 361 N.C. 85, 88, 637

S.E.2d 528, 530 (2006) (citation omitted).

       In its 18 October 2012 order, the trial court noted that it

reviewed     all     of     the     evidence        presented   by     both    parties,

including the evidence defendant now claims was not properly

considered, as well as the trial court’s own record of previous

litigation between defendant and FPYC.                      The trial court then

determined that defendant continued to violate FPYC’s rules and

regulations, even after FPYC met with defendant to discuss the

violations     and        after     fourteen      individual     members       of   FPYC

obtained no-contact orders against defendant.                          Defendant does

not specifically contest these facts.                     He does not argue that

they   did   not   occur,         nor   does   he    contest    that   these    actions
                              -33-
violate the restrictive covenants.          He only argues   that his

conduct was justified by FPYC’s own unclean hands, an argument

we address below.   Therefore, because the evidence showed there

were no genuine issues of fact that defendant’s behavior and

conduct had continued unabated against FPYC, the trial court did

not err in granting FPYC’s motion for summary judgment as FPYC

is entitled to judgment as a matter of law.

    Defendant   further   argues     that     summary   judgment   was

inappropriate because FPYC acted with unclean hands towards him.

Specifically, defendant argues that FPYC deliberately sought to

drive him out of FPYC’s community by provoking and targeting him

with excessive fines and, therefore, FPYC cannot seek injunctive

relief.

               When equitable relief is sought, courts
          claim the power to grant, deny, limit, or
          shape that relief as a matter of discretion.
          This discretion is normally invoked by
          considering an equitable defense, such as
          unclean hands or laches, or by balancing
          equities, hardships, and the interests of
          the public and of third persons.

Roberts v. Madison Cnty. Realtors Ass’n, 344 N.C. 394, 399, 474

S.E.2d 783, 787 (1996) (citation omitted).      Further,

          [o]ne who seeks equity must do equity. . . .
          The conduct of both parties must be weighed
          in the balance of equity, and the party
          claiming estoppel, no less than the party
          sought to be estopped, must have conformed
                                    -34-
            to strict standards of equity with regard to
            the matter at issue.

Creech v. Melnik, 347 N.C. 520, 529, 495 S.E.2d 907, 913 (1998)

(citations omitted).

            The issuance of such an injunction depends
            upon the equities of the parties and such
            balancing is clearly within the province of
            the trial court. Whether injunctive relief
            will be granted to restrain the violation of
            such restrictions is a matter within the
            sound discretion of the trial court . . .
            and the appellate court will not interfere
            unless such discretion is manifestly abused.

Buie, 119 N.C. App. at 161, 458 S.E.2d at 216 (citations and

quotation omitted).

      Although    defendant   presented     evidence   that    FPYC’s    Board

president   and    dockmaster    acted     inappropriately     towards   him,

defendant’s own behavior and conduct towards FPYC was equally

inappropriate.3     The trial court, in considering FPYC’s request

for   injunctive    relief,     weighed    and   balanced     the   competing

equities of both parties and concluded that defendant’s conduct

was egregious enough to warrant the issuance of a permanent

3
  Again we note FPYC’s allegations that defendant violated FPYC’s
rules and retaliated by spraying ketchup on the fence and home
of the FPYC board president, shining a spotlight into the home
of the board president, repeatedly using profane language
towards members of the FPYC board, and sending threatening
messages to board members. Other allegations of rule violations
against defendant included defendant riding his bike along the
marina’s docks, defendant’s dog running loose without a leash,
and defendant defacing the FPYC clubhouse bathrooms with feces.
                              -35-
injunction.   As the trial court acted within its discretion in

balancing “the equities of the parties,” the trial court did not

err in granting a permanent injunction in favor of FPYC.      We

affirm summary judgment but remand to the trial court to limit

the scope of the permanent injunction.

    Affirmed in part; remanded in part.

    Judges McGEE and STROUD concur.
