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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .

NO. COA12-611 NORTH CAROLINA COURT OF APPEALS Filed: 18 December 2012 PROPERTIES OF SOUTHERN WAKE, LLC, Plaintiff, v. THE FIDELITY BANK, BRANCH BANKING AND TRUST COMPANY, and NC PROPERTIES I, LLC, Defendants. Wake County No. 11 CVS 6373

Appeal by Plaintiff from orders and judgments entered 29 September 2011 in favor of Defendants The Fidelity Bank and Branch Banking and Trust Company by Judge Paul C. Ridgeway in Wake County Superior Court. October 2012. Boxley, Bolton, Garber Garber, for Plaintiff. & Haywood, L.L.P., by Ronald H. Heard in the Court of Appeals 11

Ward and Smith, P.A., by Michael P. Flanagan and Jason T. Strickland, for Defendant The Fidelity Bank. Williams Mullen, by John D. Burns, for Defendant Branch Banking & Trust Company.

-2STEPHENS, Judge. Procedural History and Factual Background This appeal arises out of the enforcement of restrictive covenants in the Fleming Fields Subdivision ("Fleming Fields") in Wake County. filed restrictive Plaintiff Properties of Southern Wake, LLC, covenants for the subdivision in the Wake

County Registry on 21 November 2006. pertinent part:

Those covenants state, in

3.1 Time Limits. By acceptance of a deed, each Lot Owner or assigns agrees to have all public or private approvals necessary and shall start physical construction of a dwelling within nine (9) months of acceptance of said deed. In the event construction is not started within nine (9) months of acceptance of deed, the Lot Owner shall, at the Declarant's option, sell the Lot back to the Declarant at the original sales price, exclusive of any other costs incurred by Lot Owner. Declarant may extend the nine (9) months start time by up to three (3) months for any reason deemed acceptable to Declarant. At the end of any time extension the buy out option would then exist again for the Declarant. Time is of the essence. Notification will be by certified mail. Once construction begins, each Lot Owner will be required to complete construction of any dwelling ready for occupancy within three hundred sixty (360) days. Start date for construction will be the date a Wake County building permit is issued. Completion

-3date will be the date Wake County issues a certificate of occupancy. If construction is not completed within the allowed three hundred sixty (360) days then the Lot's Owner will pay to the Declarant fifty (50) dollars a day for each day over the three hundred sixty (360) days until completion. Time is of the essence. Notification will be by certified mail. Tim C. Johnson took title General to four Contractor, lots1 in Inc. Fleming ("Johnson Fields by

Contracting")

general warranty deed on 22 November 2006. granted a deed Bank") of trust on 28 to Defendant 2006.

Johnson Contracting The Fidelity After Bank

("Fidelity

December

Johnson

Contracting defaulted on its loan obligations to Fidelity Bank, the lots were conveyed from Johnson Contracting to Fidelity Bank via two substitute trustee's deeds on 28 May 2010. Dennis McLaurin and Charlene J. McLaurin took title to Lots 70 and 74 of Fleming Fields and granted two deeds of trust in the lots to Branch Banking and Trust ("BB&T") on 11 February 2008. BB&T took ownership of Lots 70 and 74 through trustee's deeds in foreclosure on 12 November 2010. Construction of a

detached, single family home was commenced on Lot 28 by Johnson Contracting and was completed by Fidelity Bank on 12 August
1

The text of the deed of trust lists the lots as numbers 19, 21, 28, and 31, but Exhibit "A" attached to the deed describes the property as "Lots 17, 21, 28[,] and 31[.]" Allegations in Plaintiff's complaint also refer to lot 17 rather than lot 19.

-42010. Construction has not commenced on any other lots involved

in this action. Plaintiff filed suit against Defendants on 25 April 2011 alleging that it is entitled to recover monetary damages for Defendants' failure to commence or complete construction of

residences on the lots within the time period required by the restrictive covenants. Pursuant to Rule 12(b)(6), Fidelity Bank

filed a motion to dismiss on 27 June 2011, and BB&T filed a motion to dismiss on 1 July 2011. largely on the text of the Defendants' motions relied arguing (1) that the

covenants,

covenants do not run with the land and are thus inapplicable to Defendants, and (2) that the covenants do not provide for the remedy sought by Plaintiff. After a hearing, the court granted

the motions to dismiss as to both Defendants in separate orders and judgments entered 29 September 2011.2 Plaintiff appeals.

Standard of Review A motion to dismiss under Rule 12(b)(6) "tests the legal sufficiency of the complaint." Castle Worldwide, Inc. v.

SouthTrust Bank, 157 N.C. App. 518, 521, 579 S.E.2d 478, 480 (2003).
2

In

considering

a

Rule

12(b)(6)

motion

to

dismiss,

Plaintiff and Defendant NC Properties I, LLC, have settled all issues between them, and Plaintiff filed a notice of voluntary dismissal with prejudice on 21 June 2012. Accordingly, NC Properties I, LLC, is not a party to this appeal.

-5"[t]he question for the court is whether, as a matter of law, the allegations of the complaint, treated as true, are

sufficient to state a claim upon which relief may be granted under some legal theory[.]" Id. at 521, 579 S.E.2d at 480-81.

A Rule 12(b)(6) motion to dismiss is properly granted "when the complaint on its face reveals that no law supports the

plaintiff's claim, that some fact essential to the plaintiff's claim is missing or when some fact disclosed in the complaint defeats the plaintiff's claim." Hare v. Butler, 99 N.C. App.

693, 696, 394 S.E.2d 231, 234, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990). We review the dismissal of a case Christmas v. Cabarrus

on the basis of Rule 12(b)(6) de novo.

Cty., 192 N.C. App. 227, 231, 664 S.E.2d 649, 652 (2008), disc. review denied, 363 N.C. 372, 678 S.E.2d 234 (2009). Discussion Plaintiff's sole argument on appeal is that the trial court erred by granting Defendants' motions to dismiss. We disagree.

Covenants originate in contract and are thus subject to the same rules of interpretation applied to any other contract.

Armstrong v. Ledges Homeowners Ass'n, Inc. 360 N.C. 547, 554, 633 S.E.2d 78, 85 (2006). "Where the language of a contract is

plain and unambiguous, construction of the agreement is a matter

-6of law[,]" First Citizens Bank & Trust Co. v. McLamb, 112 N.C. App. 645, 649-50, 439 S.E.2d 166, 169 (1993), and "a contract is to be construed as a whole with each clause and word being considered with reference to its other provisions." Davis v.

Dennis Lilly Co., 330 N.C. 314, 319, 411 S.E.2d 133, 136 (1991). When the language of a contract is ambiguous, the ambiguity is construed against the drafting party. Inc. v. Goel, 146 N.C. App. 137, 153, See Reichhold Chems., 555 S.E.2d 281, 291

(2001). purpose

Further, when interpreting contracts, a court's primary "is to give effect to the original intent of the

parties," but "covenants are strictly construed in favor of the free use of the land plain whenever and strict construction of 633 the does not

contradict parties."

obvious N.C.

purpose at 555,

contracting at 85

Armstrong,

360

S.E.2d

(emphasis in original). Here, requires the plain lot language "start of the protective covenants of a

that

owners

physical

construction

dwelling within nine (9) months of acceptance of said deed." The covenants further provide the sole remedy for non-compliance with this provision, stating "[i]n the event construction is not started within nine (9) months of acceptance of deed, the Lot Owner shall, at the Declarant's option, sell the Lot back to the

-7Declarant at the original sales price, exclusive of any other costs incurred by Lot Owner." (Emphasis added). In this

regard, the language of the protective covenants is unambiguous, barring Plaintiff from seeking monetary damages in lieu of the provided remedy of repurchase. Section 3.1, which provides for the assessment of damages for construction not completed within 360 days, begins with the language "[o]nce construction begins[.]" commenced on lots 17, 31, 70, and 74. the explicit pre-requisite for Construction was never Thus, as to these lots, damages under the

monetary

protective covenants, that construction on the lot be commenced, was never met. Construction of a single family home was commenced on Lot 28 by Johnson Contracting and was completed by Fidelity Bank on 12 August 2010. this case is not While the foreclosure situation presented by directly addressed in the covenants, the

definition of "Owner" in Section 1.2 explicitly excludes "the mortgage[e], its successors or assigns, unless and until such mortgagee has acquired title pursuant to foreclosure or a

proceeding in lieu of foreclosure[.]"

Therefore, the language

of the protective covenants does not allow Plaintiff to obtain damages against Fidelity Bank for actions taken before Fidelity

-8Bank became the lot owner. Once Fidelity Bank took title on 28

May 2010, construction on Lot 28 was completed on 12 August 2010, well within the prescribed 360-day time period.3 Plaintiff argues further, however, that the protective

covenants at issue run with the land and thus "dictate[] that a house will be built . . . within a certain period of time." are not persuaded. A restrictive covenant . . . runs with the land only if (1) the subject of the covenant touches and concerns the land, (2) there is privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced, and (3) the original covenanting parties intended the benefits and the burdens of the covenant to run with the land. Runyon v. Paley, 331 N.C. 293, 299-300, 416 S.E.2d 177, 183 (1992). This Court has held that a covenant creating an We

affirmative obligation to pay assessments runs with the land only when "the assessments are for the maintenance of property that is located within the subdivision for the benefit of the lot owners." Claremont Prop. Owners Ass'n v. Gilboy, 142 N.C.

3

Even in the event Plaintiff could establish some ambiguity in this portion of the protective covenants, any ambiguity would be construed against Plaintiff as the drafting party and would thus preclude damages against Fidelity Bank for breach of this covenant. See Reichhold Chems., Inc., 146 N.C. App. at 153, 555 S.E.2d at 291 (holding that ambiguity in contract language is construed against the drafting party).

-9App. 282, 287, 542 S.E.2d 324, 327 (2001). Additionally, in

regard to the "touch and concern" requirement, this Court has generally held that "covenants to pay money do not touch and concern the land" unless assessed homeowners have a right to use amenities improved or maintained by the assessed fee. Midsouth

Golf, LLC v. Fairfield Harbourside Condo. Ass'n, 187 N.C. App. 22, 33, 652 S.E.2d 378, 386 (2007). Plaintiff argues that the covenants at issue here run with the land, but our review of the record indicates that they do not meet any of the three criteria specified in Runyon. the language of the covenants does not indicate First, the

that

penalties assessed under Section 3.1 are to be used to maintain property within the subdivision, nor that property owners have a right to use amenities maintained or improved by the penalties imposed. Thus, the subject of these covenants to pay money does Runyon, 331 N.C. at 299-300,

not touch and concern the land. 416 S.E.2d at 183.

Second, because Defendants did not take

title directly from Plaintiff, there is no "privity of estate between the party enforcing the covenant and the party against whom the covenant is being enforced[.]" at 183. Third, there is no Id. at 300, 416 S.E.2d in the protective

suggestion

covenants that "the original covenanting parties intended the

-10benefits and the burdens of the covenant to run with the land." Id. Accordingly, the covenants at issue do not run with the

land and cannot be asserted by Plaintiff against Defendants. Finally, granting Plaintiff contends the trial court to erred by when

Defendants'

Rule

12(b)(6)

motions

dismiss

matters outside the complaint were considered, thus purportedly converting the motions to dismiss into motions for summary

judgment, and by refusing to accept and consider Plaintiff's tendered affidavit. The subject trial of the We disagree. reference and to documents that to are in "the the to a

court's action not

specifically a Rule

referred

complaint[]"

does

convert

12(b)(6)

motion

summary judgment motion.

Coley v. North Carolina Nat'l Bank, 41 A court may

N.C. App. 121, 126, 254 S.E.2d 217, 220 (1979).

also consider documents that form the basis of the suit without converting judgment. a motion to dismiss into a motion for summary

Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 255,

580 S.E.2d 757, 759 (2003). Here, the trial court considered two documents in addition to the complaint in granting Defendants' motions to dismiss: the protective covenants at issue as filed with the Register of Deeds of Wake County and certified copies of the trustee deeds

-11under which Defendants took title to the lots. properly considered these documents under The trial court Rule 12(b)(6).

Paragraph five of Plaintiff's complaint specifically refers to the protective covenants. Additionally, under Brackett, the

court properly considered the deeds which established the date of Defendants' ownership and their responsibility under the

covenants, the very basis of this suit. Similarly, Plaintiff's allegation that the trial court

committed reversible error by refusing to accept and consider Plaintiff's tendered affidavit in considering Defendants'

motions to dismiss is without merit.

The affidavit in question

was not referenced in the complaint and there is no indication that anything regarding the affidavit was a basis for the suit. Further, Rule 10 of the North Carolina Rules of Appellate Procedure requires that: In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion. N.C.R. App. P. 10. Here, Plaintiff did not make a motion in

limine or raise an objection at the hearing on the motions to

-12dismiss as to either of the documents considered by the trial court in granting the motions. Moreover, because the motions to

dismiss were not converted into motions for summary judgment, no evidence beyond the pleadings should have been considered. The

affidavit in question was not served prior to hearing, did not address matters relevant to the motions to dismiss, and was not referenced in the amended complaint. Thus, the affidavit was

untimely and the trial court's failure to consider the affidavit was proper. Accordingly, the order of the trial court is

AFFIRMED. Judges GEER and MCCULLOUGH concur. Report Rule 30(e).



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