In re: Skybridge Terrace , 246 N.C. App. 489 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-810
Filed: 5 April 2016
Mecklenburg County, No. 12 CVS 22411
IN RE SKYBRIDGE TERRACE, LLC LITIGATION
Appeal by defendants from order and judgment entered 25 March 2015 by
Judge James L. Gale in Mecklenburg County Superior Court. Heard in the Court of
Appeals 27 January 2016.
Randolph M. James, P.C., by Randolph M. James for plaintiff-appellee
Skybridge Terrace, LLC.
Horack Talley Pharr & Lowndes, P.A., by Amy P. Hunt, for defendant Doyle
Christopher Stone.
Erwin, Bishop, Capitano & Moss, PA, by Fenton T. Erwin, Jr. and Matthew M.
Holtgrewe, for defendants-appellants.
DAVIS, Judge.
Christopher M. Allen and Harold K. Sublett, Jr. (collectively “Defendants”)
appeal from the trial court’s 25 March 2015 order and judgment granting summary
judgment in favor of Skybridge Terrace, LLC (“Skybridge”) on its claim seeking a
declaratory judgment that it was entitled to withdraw certain property from
Skybridge Terrace Condominiums (“the Condominium”) in its capacity as the
declarant. After careful review, we affirm the trial court’s order and judgment.
Factual Background
IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
Skybridge is a North Carolina limited liability company that was created to
facilitate the development of a condominium complex on Calvert Street in Charlotte,
North Carolina. Skybridge issued a public offering statement in September 2006
describing the planned features of the anticipated condominium complex. On 23 July
2008, Skybridge legally created the Condominium by recording the Declaration of
Skybridge Terrace Condominiums (“the Declaration”) in the Mecklenburg County
Registry in Book 23980, Page 818 pursuant to N.C. Gen. Stat. § 47C-2-101 of the
North Carolina Condominium Act (“the Condominium Act”). The Declaration
submitted the property described therein to the provisions of the Condominium Act
and incorporated a plat map illustrating the plans for the Condominium. In the
Declaration, Skybridge reserved certain development rights and other special
declarant rights, including the right
to complete the improvements indicated on the Plans; to
maintain sales offices, models and signs advertising the
Condominium on the Property; to exercise any
development right as defined in Section 47C-2-110 of the
Act; to use easements over the Common Elements; to elect,
appoint or remove members of the Board during the
Declarant Control Period; to make the Condominium part
of a larger condominium; and to withdraw any portion of
the Property from the Condominium; and to add property
to the Condominium, including but not limited to one
additional phase, which is shown on the Plat as Phase
Three. . . .
(Emphasis added.)
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
The Declaration stated that the Condominium would be divided into two
phases and include 96 separately owned units. It further provided that “[e]ach phase
shall contain 48 units and the phases are designated as Phase One and Phase Two,
sometimes alternatively referred to as Phase I and Phase II. Phase I has been built
and Phase II is planned but not yet built.”
Skybridge began conveying units in Phase I of the Condominium to purchasers
in 2009. Defendants purchased their respective units in Phase I in early 2011. Phase
II of the Condominium has never been developed.
On 31 December 2012, Skybridge filed a complaint in Mecklenburg County
Superior Court against Defendants, Sean M. Phelan (“Phelan”), Nexsen Pruet, PLLC
(“Nexsen Pruet”), and various other unit owners of the Condominium. Skybridge’s
complaint asserted professional malpractice and constructive fraud claims against
Phelan and Nexsen Pruet with regard to their representation of Skybridge during the
development of the Condominium and their drafting of the Declaration.1 In their
claims against Defendants and the other unit owners, Skybridge sought (1)
reformation of the Declaration so that it had the right of either developing or
withdrawing the property encompassing Phase II of the Condominium; and (2) in the
alternative, a declaratory judgment that Skybridge “has the right to develop and right
to withdraw Phase II.” The matter was designated a mandatory complex business
1 The claims against Phelan and Nexsen Pruet are not at issue in the present appeal.
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
case on 1 February 2013 and was subsequently assigned to the Honorable James L.
Gale in the North Carolina Business Court.
Skybridge filed an amended complaint on 19 February 2013. On 25 October
2013, Defendants filed an answer, asserting that they “presently own and possess
indefeasible property rights in and to the real estate described in Phase II on the plat”
and that Skybridge was not entitled to its requested declaratory relief in its amended
complaint. On 16 December 2013, Judge Gale entered an order severing Skybridge’s
claims against Phelan and Nexsen Pruet from its claims against the defendant unit
owners pursuant to Rule 42 of the North Carolina Rules of Civil Procedure. The order
further provided that the “claims against Nexsen Pruet and Sean Phelan are stayed
and held in abeyance until the earlier of January 1, 2015 or resolution of [Skybridge’s]
claims against the remaining Defendants.”
On 11 March 2014, Defendants filed a motion seeking summary judgment in
their favor on Skybridge’s claims. Skybridge filed a cross-motion for summary
judgment on 12 March 2014. The trial court granted summary judgment in favor of
Skybridge by order entered 25 March 2015. In its order, the trial court determined
that Skybridge “properly reserved a right to withdraw the Phase II parcel from
Skybridge Terrace Condominiums[.]” The trial court certified its order pursuant to
Rule 54(b) as a final judgment as to all claims between Skybridge and the unit owner
defendants. Defendants gave timely notice of appeal to this Court.
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
Analysis
The entry of summary judgment is proper “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that any party is
entitled to a judgment as a matter of law.” N.C.R. Civ. P. 56(c). We review an order
granting summary judgment de novo. Residences at Biltmore Condo. Owners’ Ass’n,
Inc. v. Power Dev., LLC, ___ N.C. App. ___, 778 S.E.2d 467, 470 (2015).
Here, Defendants argue that the trial court erred in granting summary
judgment in favor of Skybridge on its declaratory judgment claim because Skybridge
failed to adequately reserve in the Declaration the right to withdraw Phase II from
the Condominium. Defendants further contend that even if the right to withdraw
property was adequately reserved in the Declaration, Skybridge was precluded from
exercising withdrawal rights after it began conveying units in Phase I to purchasers.
The Condominium Act, codified in Chapter 47C of our General Statutes,
“applies to all condominiums created within this State after October 1, 1986.” N.C.
Gen. Stat. § 47C-1-102(a) (2015). The Condominium Act allows a declarant to reserve
certain development rights in the condominium if such a reservation is contained in
the declaration creating the condominium. N.C. Gen. Stat. § 47C-2-105(8) (2015).
“Development rights” are statutorily defined by the Condominium Act as
encompassing “any right or combination of rights reserved by a declarant in the
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
declaration to add real estate to a condominium; to create units, common elements,
or limited common elements within a condominium; to subdivide units or convert
units into common elements; or to withdraw real estate from a condominium.” N.C.
Gen. Stat. § 47C-1-103(11) (2015) (emphasis added).
In order to properly reserve development rights, “a declarant must specifically
state in the declaration the rights it wishes to retain ‘together with a legally sufficient
description of the real estate to which each of those rights applies, and a time limit
within which each of those rights must be exercised.’” Residences at Biltmore Condo.
Owners’ Ass’n, ___ N.C. App. at ___, 778 S.E.2d at 472 (quoting N.C. Gen. Stat. § 47C-
2-105(8)). With regard to the exercise of the development right of withdrawal, the
Condominium Act expressly contemplates both the reservation of all of the real estate
comprising the condominium and the reservation of less than all of said real estate,
stating as follows:
If the declaration provides pursuant to G.S. 47C-2-
105(a)(8) that all or a portion of the real estate is subject to
the development right of withdrawal:
(1) If all the real estate is subject to withdrawal, and
the declaration does not describe separate
portions of real estate subject to that right, no
part of the real estate may be withdrawn after a
unit has been conveyed to a purchaser; and
(2) If a portion or portions are subject to withdrawal,
no part of a portion may be withdrawn after a
unit in that portion has been conveyed to a
purchaser.
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
N.C. Gen. Stat. § 47C-2-110(d) (2015).
In the present case, the Declaration provided that Skybridge, as the declarant,
retained the right “to withdraw any portion of the Property from the Condominium.”
(Emphasis added.) Defendants contend that the use of the term “any portion” (1)
failed to sufficiently describe the real estate to which the right of withdrawal was
meant to apply; and (2) should be interpreted as meaning that “the Declaration
reserve[d] the right to withdraw all Property from the Condominium.” (Emphasis
added.) We are not persuaded by either of these assertions.
Under the Condominium Act, the plat showing the plans for the condominium
“shall be considered a part of the declaration[.]” N.C. Gen. Stat. § 47C-2-109(a)
(2015). In this case, the recorded plat shows separate and distinct phases of
development of the Condominium: Phase I, Phase II, and Phase III. Phases I and II
are illustrated on the plat, and as the trial court noted in its summary judgment
order, there is “a surveyed line of demarcation between them.”2 Phase III is depicted
using a dotted line and was labeled “NEED NOT BE BUILT.” The boundaries of each
phase are clearly depicted on the plat.
Thus, the surveyed boundaries set forth on the plat provide a legally sufficient
description of the real estate included in each phase of the Condominium. Because,
2 Phase III was not actually part of the Condominium property but was depicted on the plat
as property that could later be added to the Condominium.
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
however, both the Declaration and the Condominium Act utilize the term “portion”
rather than “phase” in discussing the right to withdraw, we must determine whether
the two terms — as used here — are synonymous.
On this issue, the trial court concluded that Phase II constituted a “portion” of
the Condominium such that it could be withdrawn pursuant to Skybridge’s right to
“withdraw any portion of the Property from the Condominium” as stated in the
Declaration. The trial court explained its reasoning as follows:
{51} The Act does not define “portion” or provide significant
guidance on what constitutes a separate “portion” for
purposes of reserving a right to withdraw. The undisputed
facts of the case at hand, however, make clear that the
Phase II parcel was and remains a separate and
independent “portion” from Phase I. The recorded plat
referenced in the Declaration labels separate phases and
contains a surveyed phase line separating the Phase I and
Phase II parcels. As noted, the Phase II real estate has a
tax parcel identification number separate from Phase I and
remains in [Skybridge’s] name.
{52} This separate identity was clear at the time the
Declaration was recorded and when each Unit Owner
Defendant purchased his or her interest in the
condominium. Unit Owner Defendants could not
reasonably conclude otherwise. They were on notice when
they purchased their units that the Phase II real estate
was considered a separate portion. . . .
(Internal citations omitted.)
We agree with the trial court’s analysis on this issue. The recorded plat for the
Condominium showed a condominium complex comprised of two defined parts: Phase
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
I (which had been built) and Phase II (which was “planned”). The plat also provided
for the possibility of adding Phase III, which was not yet part of the Condominium.
Thus, because Phase I and Phase II are the only discrete and clearly identifiable
“portions” of the Condominium depicted on the plat, Skybridge’s right to withdraw
“any portion” must be construed as the right to withdraw either Phase I or Phase II.
In a related argument, Defendants contend that Skybridge’s reservation of the
right to “withdraw any portion of the Property” amounted to a reservation of the right
to withdraw all of the Condominium property. Based on this contention, they assert
that Skybridge was precluded from withdrawing Phase II because it had already
conveyed to purchasers units in Phase I. See N.C. Gen. Stat. § 47C-2-110(d)(1) (“If
all the real estate is subject to withdrawal, and the declaration does not describe
separate portions of real estate subject to that right, no part of the real estate may be
withdrawn after a unit has been conveyed to a purchaser . . . .”).
However, subsection (2) of N.C. Gen. Stat. § 47C-2-110(d) contemplates
scenarios where — as here — a declarant reserves the right to withdraw less than all
of the condominium property, stating that “[i]f a portion or portions are subject to
withdrawal, no part of a portion may be withdrawn after a unit in that portion has
been conveyed to a purchaser.” N.C. Gen. Stat. § 47C-2-110(d)(2) (emphasis added).
Thus, N.C. Gen. Stat. § 47C-2-110(d) recognizes the ability of a declarant to reserve
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
a right of withdrawal as to either (1) all of the condominium’s real estate; or (2) any
portion of the condominium’s real estate.
Here, the Declaration does not refer to all of the Condominium’s property in
describing the declarant’s withdrawal rights. Instead, to the contrary, it describes
the right to withdraw any “portion” of the Condominium property. While not defined
in the Condominium Act, the term “portion” necessarily means something less than
all of the condominium property in its entirety. See American Heritage Dictionary
966 (2nd college ed. 1985) (defining “portion” as “[a] section or quantity within a
larger thing; a part of a whole”); see also Martin v. N.C. Dep’t of Health & Human
Servs., 194 N.C. App. 716, 722, 670 S.E.2d 629, 634 (“Where a statute does not define
a term, we must rely on the common and ordinary meaning of the word[ ] used.”),
disc. review denied, 363 N.C. 374, 678 S.E.2d 665 (2009).
Thus, under the Act, Skybridge was prohibited from withdrawing the Phase I
property because it had already conveyed units in Phase I but was not precluded from
withdrawing the Phase II property because no units in Phase II had been conveyed.
Indeed, no units in Phase II were ever even built. While admittedly an explicit
reservation in the Declaration of the right to withdraw “any phase” (as opposed to
“any portion”) would have been clearer and more precise, Skybridge’s express
reservation of the right to withdraw “any portion” provided a legally sufficient
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
description of the real estate to which withdrawal rights applied. Defendants’
argument on this issue is therefore overruled.
While we have concluded that the identification and demarcation of the
separate phases on the plat constituted “a legally sufficient description of the real
estate” to which the withdrawal rights applied, N.C. Gen. Stat. § 47C-2-105(a)(8), we
agree with Defendants that there are two specific statutory requirements concerning
the right of withdrawal with which Skybridge did not comply. First, the plat map
does not note Skybridge’s reservation of a right to withdraw property as required by
N.C. Gen. Stat. § 47C-2-109(b)(3). See N.C. Gen. Stat. § 47C-2-109(b)(3) (requiring
the recorded plat to show “[t]he location and dimensions of any real estate subject to
development rights, labeled to identify the rights applicable to each parcel”). Second,
the Declaration does not conform with N.C. Gen. Stat. § 47C-2-105(8) by listing the
time limit within which the right to withdraw must be exercised.
Pursuant to N.C. Gen. Stat. § 47C-1-104(c), however, the Condominium Act
“excuses nonmaterial noncompliance with [its] requirements where the declarant has
substantially complied with the statute.” In re Williamson Vill. Condos., 187 N.C.
App. 553, 557, 653 S.E.2d 900, 902 (2007), aff’d per curiam, 362 N.C. 671, 669 S.E.2d
310 (2008); see N.C. Gen. Stat. § 47C-1-104(c) (2015) (“If a declarant, in good faith,
has attempted to comply with the requirements of this chapter and has substantially
complied with the chapter, nonmaterial errors or omissions shall not be actionable.”).
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
Thus, in order to show its entitlement to summary judgment on its claim seeking
declaratory relief, Skybridge was required to show that (1) it in good faith attempted
to comply with the Condominium Act; (2) it did, in fact, substantially comply with the
requirements contained therein; and (3) its errors or omissions were nonmaterial.
See Williamson Vill. Condos., 187 N.C. App. at 557, 653 S.E.2d at 902. Here,
Defendants do not affirmatively argue that Skybridge acted in bad faith. Rather,
they challenge the trial court’s determinations that (1) Skybridge substantially
complied with the Condominium Act; and (2) Skybridge’s omissions were
nonmaterial.
Our Court applied N.C. Gen. Stat. § 47C-1-104(c) in Williamson Village
Condominiums. We explained that substantial compliance with the Condominium
Act means “compliance which substantially, essentially, in the main, or for the most
part, satisfies the statute’s requirements.” Id. (citation, quotation marks, and
brackets omitted). In that case, the issue was whether the declarant had sufficiently
reserved development rights in a condominium despite its failure to include a time
limit on its right to further develop the property. Id. at 556-57, 653 S.E.2d at 901-02.
In determining whether the declarant had substantially complied with the
Condominium Act, we observed that “[t]he Act contains numerous requirements for
condominium creation and operation” and that “[m]any of the Act’s requirements,
both in N.C.G.S. § 47C-2-105 and elsewhere, deal with the contents of a condominium
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Opinion of the Court
declaration.” Id. at 557, 653 S.E.2d at 902. We then compared the contents of the
declaration at issue with the mandatory provisions of the Condominium Act along
with a number of the nonmandatory sections. Id. at 557-58, 653 S.E.2d at 902-03.
We concluded that the declaration “essentially, in the main, and for the most part,
satisfie[d] the Act’s requirements.” Id. at 558, 653 S.E.2d at 903 (citation, quotation
marks, and brackets omitted).
In the present case, the trial court relied on our analysis in Williamson Village
Condominiums and engaged in a similar analysis, correctly stating the following:
{63} The Declaration, “for the most part, satisfies the [Act’s
requirements].” Id. at 557, 653 S.E.2d at 902 (quoting N.C.
Nat’l Bank v. Burnette, 297 N.C. 524, 532, 256 S.E.2d 388,
393 (1979)). The Declaration is a forty-six-page document
that includes the following: (1) the name of the
condominium complex and condominium association, in
compliance with section 47C-2-105(a)(1) of the Act; (2) the
name of the county in which the real estate is located, in
compliance with section 47C-2-105(a)(2) of the Act; (3) an
adequate description of the real estate within the
condominium, in accordance with section 47C-2-105(a)(3)
of the Act; (4) the number of existing and potential future
units in the condominium, pursuant to section 47C-2-
105(a)(4) of the Act; (5) the boundaries and identifying
number of each unit, in compliance with section 47C-2-
105(a)(5) of the Act; (6) a description of limited common
elements and areas, as required under section 47C-2-
105(a)(6) of the Act; (7) a description of reserved
development and declarant rights, including an
explanation of which fixed portions are subject to those
rights, in accordance with section 47C-2-105(a)(8) of the
Act; (8) allocations for interests in the common elements,
liability for common expenses, and voting rights, as
required under sections 47C-2-105(a)(11) and -107 of the
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Opinion of the Court
Act; (9) restrictions on the use and occupancy of the units,
pursuant to section 47C-2-105(a)(12) of the Act; (10) a
recitation of easements and licenses affecting the
condominium, in compliance with section 47C-2-105(a)(13)
of the Act; and (11) plans and a plat for the condominium,
as required under section 47C-2-109. See In re Williamson
Vill. Condos., 187 N.C. App. at 557-58, 653 S.E.2d at 902-
03 (noting declaration at issue complied with each of these
provisions).
{64} The Declaration also includes the following
nonmandatory information: (1) rules regarding unit
additions, alterations, and improvements, pursuant to
section 47C-2-111 of the Act; (2) rules for amending the
Declaration and bylaws, as provided under sections 47C-2-
117 and 3-106 of the Act; (3) procedures for terminating the
condominium, as delineated in section 47C-2-118 of the
Act; (4) provisions regarding the condominium association
and executive board, in accordance with sections 47C-2-
101, -102, and -103 of the Act; (5) provisions governing an
initial period of declarant control over the condominium
association, as contemplated in section 47C-3-103(d) of the
Act; (6) terms regarding upkeep and damages, pursuant to
section 47C-3-107 of the Act; (7) provisions regarding
insurance, as provided under section 47C-3-113 of the Act;
(8) provisions regarding assessments for common
expenses, as contemplated in section 47C-3-115 of the Act;
and (9) provisions for levying against units for unpaid
assessments, in accordance with section 47C-3-116 of the
Act. See id. at 558, 653 S.E.2d at 903 (noting the
declaration at issue complied with each of these
nonmandatory provisions).
Once again, we agree with the trial court’s analysis. The Declaration here is
comprehensive and demonstrates Skybridge’s substantial compliance with the
Condominium Act. However, we must still determine whether Skybridge’s (1) failure
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Opinion of the Court
to include on the plat its reservation of withdrawal rights; and (2) omission in the
Declaration of the time limit for the exercise of these rights, were material.
The official comment to N.C. Gen. Stat. § 47C-2-109 sheds light on the
underlying purpose of the requirement in subsection (b)(3) that the reserved
development rights be described on the plat, stating that “[s]ince different portions of
the real estate may be subject to differing development rights — for example, only a
portion of the total real estate may be added as well as withdrawn from the project
— the plat must identify the rights applicable to each portion of that real estate.” Id.
cmt. 5.
Here, the concern identified in the official comment as the rationale behind
subsection (b)(3) is not implicated because both of the only two existing phases of the
Condominium were subject to the same right of withdrawal at the time the
Declaration was recorded. The only other development right reserved by Skybridge
in the Declaration was to add property to the Condominium, including a possible
Phase III. However, the fact that Phase III was not presently part of the
Condominium was identified on the plat by the hard line of demarcation and the label
“NEED NOT BE BUILT.” Thus, because the same right of withdrawal applied to
each of the two phases of the property that were actually part of the Condominium,
we are unable to conclude that the failure to explicitly state this on the plat was a
material omission.
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IN RE SKYBRIDGE TERRACE, LLC
Opinion of the Court
We reach the same result regarding the omission from the Declaration of a
time limit within which the right to withdraw could be exercised that this Court
addressed in Williamson Village Condominium. In holding that the omission of a
time limit on the declarant’s reserved development right was not material in that
case, this Court examined the evidence of record and concluded that there was “no
evidence in the record that the timing of the construction of Building Two was a
disputed issue at any time during the business relationship of Plaintiff and
Defendants.” Williamson Vill. Condos., 187 N.C. App. at 558, 653 S.E.2d at 903.
Likewise, here — as the trial court noted — Defendants “purchased units in
Skybridge Terrace without regard to the omission of the time limit in the
Declaration[.]” The trial court properly based this conclusion on the fact that
Defendants “failed to present or forecast evidence that any of the current unit owners
disputed or were concerned with the lack of time limit on Declarant’s right to
withdraw any portion of the condominium.”
Finally, Defendants assert that they were misled by the language in the public
offering statement providing that “[t]he Declarant has retained no option to withdraw
withdrawable real estate from the Condominium.” However, this argument fails to
take into account the following additional language included in the public offering
statement.
This Public Offering Statement consists of seven (7)
separate parts, which together constitute the complete
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Opinion of the Court
Public Offering Statement. This first part, entitled
“Narrative”, summarizes the significant features of the
Condominium and presents additional information of
interest to prospective purchasers. The other seven (7)
parts contain respectively: schematic drawings of the
Condominium site plan and unit layouts, the form
Purchase Agreement for the individual Units (the
“Purchase Agreement”), the current versions of the
proposed Declaration for the Condominium, the Bylaws for
the Condominium, (attached as Exhibit B to the
Declaration), the Articles of Incorporation for the
Condominium Association, and the projected Budget for
the first year of operation of the Condominium.
This Narrative is intended to provide only an
introduction to the Condominium and not a complete or
detailed discussion. Consequently, the other parts of this
Public Offering Statement should be reviewed in depth,
and if there should be any inconsistency between
information in this part of the Public Offering Statement
and information in the other parts, the other parts will
govern. . . .
(Emphasis added.)
Thus, Defendants were on notice from the plain wording of the public offering
statement that in the case of any conflict between it and the Declaration, the
Declaration would control.3 Accordingly, we reject Defendants’ argument on this
issue.
3The Condominium Act expressly provides that false and misleading statements made in a
public offering statement are actionable under N.C. Gen. Stat. § 47C-4-117 and that “any person or
class of person adversely affected . . . has a claim for appropriate relief.” N.C. Gen. Stat. § 47C-4-117
(2015). Therefore, while a potential remedy exists for misrepresentations contained in a public offering
statement, Defendants have not asserted any claim against Skybridge alleging a violation of § 47C-4-
117.
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Opinion of the Court
Conclusion
For the reasons stated above, we affirm the trial court’s 25 March 2015 order
and judgment.
AFFIRMED.
Judges CALABRIA and TYSON concur.
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