IN THE COURT OF APPEALS OF NORTH CAROLINA No. COA 17

- 44 7 Filed: 19 December 2017
Carteret County, No. 14 CVS 421 JOSEPH P. MCVICKER and wife, SUSAN MCVICKER , Plaintiff s ,
v. BOGUE SOUND YACHT CLUB, INC. , Defendant.
Appeal by p laintiffs from order entered 4 March 2016 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 4 October
2017

. Harvell and Collins, P.A., by Russell C. Alexan der and Wesley A. Collins, for plaintiff

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

a ppellee

.
TYSON , Judge.
Joseph and Susan McVicker (“Plaintiffs”) appeal from the trial court’s order granting summary judgment to the Bogue Sound Yacht Club, Inc. (“Defendant” or “the Association” ). We reverse the trial court’s order and remand to the trial court for entry of summary judgment in favor of Plaintiffs. I. Background Defendant is a non

- profit corp oration , which operates the home owners’ association for the Bogue Sound Yacht Club subdivision located in Carteret County.M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- Plaintiffs are lot owners within the subdivision. The subdivision is subject to the Amendment of Declaration of Covenants, Restrictions, and Ease m e nts of Bogue Sound Yacht Club. In October 2013, Plaintiffs hired independent contractors to cut trees and clear b r ush on their property in order to maintain the lot’s appeara nce and to prevent overgrowth. Plaintiffs did not believe they were required t o seek approval of the Architectural Control Committee prior to beginning this work to remove trees and clear brush on their lot and did not do so. Before work on the property was complete d , Defendant sent Plaintiffs a “Notice of [Architectural Control Co mmittee] Violation” demanding Plaintiffs stop clearing trees on their property “until the proper

. . . application for m and $250 Refundable Construction Bond h as been submitted for approval.” However, with crews already on site and nearly finished, Plaintiff s continued the work and completed it the following day. Plaintiffs eventually offered to submit the application, but refused to pay the requested $250 bond on the grounds such bond was not authorized either by the Co venants or applicable law. Defendant refused to accept Plaintiffs’ applic ation without the $250 bond and sent Plaintiffs notice of a hearing

. The hea ring notice alleged Plaintiff

s ’ noncompliance with Association standards by clearing trees without following Defendant’s purported ly required procedure. The hearing notice also notified Plaintiff

s of a hearing to be held on 4 November 2013 before the b oardM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- of d irectors , in order to determine whether the Association should impose a fine on Plaintiffs. The hearing notice invited Plaintiffs to be heard on the matter by attending the hearing in person or submitting a written response ; Plaintiffs opted to attend the hearing

. On 17 November, Defendant mailed P laintiffs written notice of the Associat ion’s decision to allow a seven

- d ay period for Plaintiff s to submit the appl ication and construction bond. The notice indicated Plaintiff s ’ fail ure to comply within seven days would result in impos ition of a fine of one hundred do llars per day for thirty days. On or about 10 December 2013, Plaintiffs submitted the $250 bond, under protest, along with the required application. Defendant r etroactively approved Plaintiff s ’ application and returned the $250 bond in full

. Yet, because the bond was purportedly not s ubmitted within the seven

- day period, Defendant assessed $1,400 in fines

. Defendant subsequently reduced the fines by twenty

- five percent, to $1,050. On 15 April 2014, Plaintiff s filed a verified complaint alleging two claims for declaratory relief and a claim for breach of fiduciary duty. Plaintiffs sought a declaration that : (1) Defendant failed to comply with requirements of the North Carolina Planned Community Act pertaining to the imposition of fines; and (2) Defendant is without authority to impo se the construction bond. Additionally, Plaintiffs claimed Defendant had breached a fiduciary duty owed to Plain tiffs andM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- other members of the A ssociation by selectively enforcing covenants and “faili ng to evenly, uniformly, fairly and equitably apply the Covenants to its members

. ” Defendant answered the complaint on 1 8 June 2014 , and b oth parties moved for partial summary judgment. In Defendant’s moti on, Defendant contended pursuant to the Covenants and bylaws of Bogue Sound Yacht Club, Defendant “is empowered and required to maintain, keep up, and supervise the use and condition of the common areas in the subdivision” and to “regulate the use and maintenance of the properties within the subdivision through the rules and regulations promulgated by its Board of Directors through its Architectural Control Committee.” Defendant claimed “ [ i ] n furtherance of these rights and responsibilities, [Defendant] . . . requires that homeowners submit an application containing plans and specifications for work that m ay impact property values, other structures, natural vegetation, top ography, [and] privacy . . . .” Part of this application process purportedly includes the power to additionally require a $250 construction bond. Defendant attached Plaintiff Joseph P. M cVicker’s dep osition to support its motion. In support of their motion, Plaintiffs argue d they were entitled to judgment as a matter of law , because the Covenants “contain no authority for the imposi tion of such a bond” and because Defendant is without aut hority to impose the bond, the failure to post the bond cannot serve as a basis f or imposing a fine. Plaintiffs furtherM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- asserted Defendant failed to give legal ly sufficient notice of the charge, as required by North Carolina law

. The trial court heard t he parties on their motions for partial summar y judgment on 1 February 2016. On 4 March 2016, the court entered a written order granting Defendant’s motion for partial summary judgment, denying Plaintiffs’ motion, and dismissing with prejudice Plaintiffs’ claims for declaratory relief. On 9 March 2016, Plaintiffs gave notice of appeal to this C ourt. In an opinion filed 6 December 2016, this Court dismissed Plaintiff s ’ appeal as interlocutory. McVicker v. Bogue Sound Yacht Club, Inc. , __ N.C. App. __, 794 S.E.2d 560, 2016 WL 7100634 (unpublished). Plaintiffs subsequently dismissed their third claim for relief entitled “Breach of Fiduciary Du ty and Selective Enforcement.” Plaintiffs then filed their second notice of appeal t o this Court on 10 March 2017. II. Jurisdiction Plaintiffs’ appeal from the superior court’s final order lies of right to this Court pursuant to N.C. Gen. Stat. § 7A

- 27(b) (2015). III. Issues Plaintiffs contend the trial court erred in granting summary judgment to Defendan t on the issue s of: (1) Defendant’s authority to require a bond be submitted with a request for approval to Defendant prior to alterations, improvements or construction on Plaintiffs’ lot; and (2) Defendant’s imposition of a fine upon Plaintiffs.M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- IV. Sta ndard of Review Summary judgment is proper where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitl ed to a judgment as a matter of law.” N.C. Gen. Stat. § 1A

- 1, Rule 56(c) (2015); see Draughon v. Harnett Cty. Bd. of Educ. , 158 N.C. App. 208, 212, 580 S.E.2d 732, 737 (2003) (citation omitted), aff

’ d per curiam , 358 N.C. 131, 591 S.E.2d 521 (2004). “An issue is ‘genuine’ if it can be proven by substantial evidence and a fact is ‘material’ if it would constitute or irrevocably establish any material element of a claim or a defense.” Lowe v. Bradford , 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982) (cit ations and internal quotation marks omitted). In reviewing a motion for summary judgment, the trial court must “view the pleadings and all other evidence in the record in the light most favorable to the nonmovant and draw all reasonable inferences in that party’s favor.” N.C. Farm Bureau Mut. Ins. Co. v. Sadler , 365 N.C. 178, 182, 711 S.E.2d 114, 117 (2011) (citation omitted). This Court reviews a trial court’s summary judgment order de novo

. Sturgill v. Ashe Mem’l Hosp., Inc. , 186 N.C. App. 624, 626, 652 S.E.2d 302, 304 (2007), disc. review denied , 362 N.C. 180, 658 S.E.2d 662 (2008). V. AnalysisM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- Plaintiffs argue the trial court erred in granting summary judgment in favor of Defendant, because Defendant is not authorized to impose the construction bond and because Defendant failed to follow the North Carolina Planned Community Act (the “PCA”) in imposing fines upon Plaintiffs . We a gree. A. Mootness We first address our dissenting colleague ’ s contention that Plaintiffs’ challenge to Defendant’s authority under the Amendment of Declaration of Covenants, Restrictions, and Easements of Bogue Sound Yacht Club (the “Covenants”) to impose the $250 construction bond is moot. “A case is ‘ moot ’ when a determination is sought on a matter which, when rendered, cannot have any p ractical effect on the existing controversy. ” Roberts v. Madison Cty. Realtors Ass’n , Inc ., 344 N.C. 394, 398

- 99, 474 S.E.2d 783, 787 (1996) (citation omitted). “A case is not moot where there is a sufficie nt real or immediate interest evidencing an existing controversy[.]” Guilford Cty. Dep’t of Emergency Servs. v. Seaboard Chem. Corp. , 114 N.C. App. 1, 13, 441 S.E.2d 177, 184 (citations and internal quotation marks omitted), disc. review denied , 336 N.C. 6 04, 447 S.E.2d 390 (1994). This Court has also previously held that “ c ases which are technically moot may be considered if they are ‘capable of r epetition yet evading review.’ ” Ballard v. Weast , 121 N.C. App. 391, 394, 465 S.E.2d 565, 568 (citation and qu otation marks omitted), disc. review denied , 343 N.C. 304, 471 S.E.2d 66 (1996).M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- Our dissenting colleague attempts to separate and not address or rule upon Defendant’s authority to require a bond from Plaintiff s from Defendant’s power under the PCA to assess fines for Plaintiffs’ failure to post the bond. The issue of Defendant’s authority to require a construction bond with an application is necessarily intertwined and has a “ practical effect ” upon the issue of Defendant’s power to fine Plaintiffs $1,400 for not initially posting the bond as part o f the Plaintiffs’ application. Roberts , 344 N.C. at 398

- 99, 474 S.E.2d at 787. We view the allegations in the pleadings in the lig ht most favorable to Plaintiffs. Plaintiffs initially submitted their ap plication for approval to remove trees and brush f

rom their own yard, but did not submit the $250 bond because they did not believe they were required to under the Covenants. Defendant refused to accept Plaintiffs’ applicati on for approval without Plainti ff additionally posting the $250 construction bond. Defendant fined Plaintiffs based upon its own refusal to accept Plaintiffs’ architectural review application without the additional $250 bond

. Plaintiffs’ argue the Covenants do not expressly authorize Defendant to require a bond with a submission of an architectural review application, and they refused t o submit the construction bond. To determine whether Defendant possessed the authority to impose a fine for Plaintiffs’ refusal to post a bond, necessa rily requires us to resolve the controversy of whether the Covenants expressly authorizeM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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

. See Roberts , 344 N.C. 394, 398

- 99, 474 S.E.2d 783, 787. Defendant’s authority to require a bond directly bears upon Defendant’s power to impose the contested fine upon Plaintiffs, and is not moot. Even were we to agree that the return of the bond mooted Plaintiff’s claims, this issue remains properly before us, as “cases which are te chnically moot may be considered if they are ‘capable of r epetition yet evading review.’ ” Ballard 121 N.C. App. at 394, 465 S.E.2d at 568 ; see also Cumberland Cty. Hosp. Sys., Inc. v. N.C. Dep’t of Health & Human Sers., 242 N.C. App. 524, 530, 776 S.E.2d 329 , 334 (2015) (“[W]e are not required to find that a future dispute will involve the exact same parties and circumstances before applying the ex ception [to mootness.] ”). B. The Covenants Plaintiffs argue the Covenants do not authorize Defendant to requir e a construction bond be posted with an approval application. Defendant assert s the following Covenants provide authority to require Plaintiffs to post a bond with submission of an approval application. Although not raised by the parties, we
presume , wit hout deciding, for the purpose of analyzing the bond requirement that Defendant has the authority to require an approval application for lot owners conducting yard maintenance up on their own property. The Covenants provide, in part:M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- ARTICLE 4 (COMMON AREAS) 2. Easements. Every Owner shall have a right and easement of enjoyment in and to the Common Areas, on a nonexclusive basis, which right and easement shall be appurtenant in and shall pass with the title to every Lot; provided, however, the easemen ts created hereunder shall be subject to the following: (a) the right of the Association to establish reasonable rules and to charge reasonable fees for the use of the Common Areas, any such fees being charged being for the cost of maintenance, upkeep, an d supervision of said Common Area;

. . . . ARTICLE 6 (ARCHITECTURAL CONTROL COMMITTEE)

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

- thirds vote of the directors present at a duly called meeting.M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- 4. Required Approval. No improvements, alterations, repairs, or excavations, nor any maintenance which requires or would result in a change in appearance (such as a change of color), or any other activity which would noticeabl[y] and visibly change the exterior appearance of a house or a Lot, or of any improvement located thereon, shall be made or done without the prior approval of the Committee. No building, fence, wall, residence or other structure shall be c ommenced, erected, maintained, improved, altered, or otherwise modified without the prior approval of the Committee, upon compliance with the procedures for approval as set out in subparagraph 3 of this Article 7. The Covenants also state, in pertinent part: ARTICLE 15 (BUILDING RESTRICTIONS)

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

- three years ago, the Supreme Court of North Carolina set forth and has since re

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

“ [R]estrictive covenants clearly expressed may not be enlarged by implication orM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- extended b y construction. They must be given effect and enforced as written.” Callaham v. Arenson , 239 N.C. 619, 625, 80 S.E.2d 619, 624 (1954). “ North Carolina follows the rule of strict construction when interpreting restrictive covenants

. That is, any ambiguit ies will be resolved in favor of unrestricted use. But this rule must not be applied to defeat the plain and obvious purposes of the restriction.” Barber v. Dixon , 62 N.C. App. 455, 457, 302 S.E.2d 915, 916

- 17 (1983) (citing Long v. Branham, 271 N.C. 264, 268, 156 S.E.2d 235, 239 (1967) )

. “[E]ach part of the covenant must be given effect according to the natural meaning of the words

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

.

[I]n interpreting restrictive covenants , doubt and ambiguity are resolved in favor of the unrestricted use of property , so that where the language of a restrictive covenant is capable of two constructions, the one that li mits, rather than the one which extends it, should be adopted, and that construction should be embraced which least restricts the free use of the land. Hultquist v. Morrow , 169 N.C. App. 5 79, 584

- 85, 610 S.E.2d 288, 292 (emphasis supplied) (citations and quotation marks omitted), disc. review denied , 359 N.C. 631, 616 S.E.2d 235 (2005). Defendant is a planned community created before 1 January 1999 and is therefore s ubject to particular sections of the PCA

. See Wise v. Harrington Grove Cmty. Ass’n, Inc. , 357 N.C. 396, 399

- 400, 584 S.E.2d 731, 735 (2003)

. T he PCA allows property owners’ associations to “ (6) [r]egulate the use, maintenance, repair,M C V ICKER V
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- replacement, and mod ification of common elements[,]” and to “(17) [e]xercise any other powers necessary and proper for the governance and operation of the association.” N.C. Gen. Stat. § 47F

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- 102(6), (17) (2015). “ Unless the articles of incorporation or the declaration exp ressly provides to the contrary, the [homeowners’] association may” exercise these powers. N.C. Gen. Stat. § 47F

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- 102. Defendant asserts it possesses authority to impose a bond requirement with the submission of an application for approval under its right “to establish reasonable rules and to charge reasonable fees for the use of the Common Areas. . .” under the Covenants. The Covenants expressly autho rize Defendant to “charge reasonable fees for the use of the Common Areas[,]” but not to impose a bond as part of the approval process to conduct maintenance or improvements upon a lot owner’s own property. No express language in the Covenants or the PCA grants Defendant the authority to additionally require a bond to be submitted with a request for approval of activities on an owner’s lot, not part of any common area

. Defendant cannot assert this power by implication. See Callaham , 239 N.C. at 625, 80 S .E.2d at 624. Construing the Covenants strictly, as this Court is required to do, Defendant does not have the express or implied authority to additionally require Plaintiffs to post a bond as a condition to consider their application for approval. S ee Long , 271 N.C. at 268, 156 S.E.2d at 239.M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- The Covenants expressly set out the requirements for what Plaintiffs must submit with a request for approval to the Architecture Control Committee: “Two copies of the complete set of plans and specifications, includi ng landscape plans, describing any improvements, alteration, repair, or other item requiring approval of the Committee, shall be submitted to t he Committee[. ]” Nothing in the Covenants’ specified procedure indicates, implies, or requires the additional re quirement of a bond to be posted. The Covenants also specifically provide that, in the event of damage to the Common Areas, “caused by any other activity associated with construction on Lots within the subdivision . . . [the Association ] shall have the authority to repair such damage and assess the cost of such repairs to the Owner[.]” While not before us here, Plaintiffs’ cutting and removal of trees upon their own property might arguably come within the ambit of “any other activit y associated with construction[. ]” The Covenants expressly provide the procedure for Defendant to assess costs for any damage to the Common Areas caused by “activity associated with construction on Lots within the subdivision[.]” It does not appear in the record that Plai ntiffs were doing construction on their lot or preparing for construction. Although the Covenants expressly allow Defendant to charge “reasonable fees for the use of the Common Areas, any such fees being charged being for the purpose of reimbursing the Association for the cost of maintenance, upkeep, and supervisionM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- of said Common Areas[,]” the Covenants expressly require only the submission of plans and specifications to the Architectural Review Committee, and do not additionally require posting a bond. “[R]estrictive covenants clearly expressed may not be enlarged by implication or extended by construction .” Callaham , 239 N.C. at 625, 80 S.E.2d at 624. Additionally, the Covenants specifically provide that in the event of damage to the Common Areas ca used by “activity associated with construction on Lots within the subdivision,” Defendant is to first repair the damage and then assess the lot owner. The requirements of the Covenants can “not be enlarged by implication” to additionally require Plaintiff s to post a bond to pay for potential damage to the Common Areas, when the Covenants expressly provide a procedure by which Defendant may repair and assess the costs of damage to the Common Areas caused by approved activity on the owner’s lot. See id. Def endant possess es no express or implied authority under the Covenants to additionally require Plaintiff to post a bond with their application for approval. The superior c ourt’s order to the contrary is

erroneous. C. The Fine Plaintiffs contend the Defenda nt’s imposition of a fine for failure to pay the $250 bond is imp roper because the bond requirement is void , and Defendant failed to follow the requirements of the P CA for imposing a fine. We agree.M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- Our dissenting colleague would decline to address whether Defendant has the authority to impose the fine , because Plaintiffs did not ask the trial court to decide whether the Association had the authority to impose fines in their complaint. However, Plaintiffs specifically alleged in their claim for decl aratory relief under the PCA : 21. Upon information and belief, Defendant failed to

comply with the requirements of the North Carolina Planned Community Act pertaining to the procedure for the imposition of fines and related matters. [ And ] 22. The attempt of BSYC [Defendant] to impose a fine upon Plaintiffs is void due to failure to comply with the statutory requirements for the imposition of fines

. (emphasis supplied). Instead of addressing Defendant’s authority to assess a fine for Plaintiffs’ initial refusal to pay an unenforceable bond, our dissent ing colle a gue expounds at length on the issue of whether Defendant followed proper procedure under the PCA before imposing the fine. Our dissenting colleague quotes Plaintiffs’ brief in an attempt to bolste r the notion that the only issue before us regarding the fine is whether Defendant followed proper procedure in imposing it, as follows : “Specifically, the issue before this Court is whether the notice of hearing issued by the Association was sufficient to put the Plaintiff

- Appellants on ‘notice of the charge ,’ as required by G.S. 47F

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- 107.1.” However, this selective quotation ignores Plaintiffs’ laterM C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- contention in their brief that, “ [s] ince the purported obligation to pay the $250.00 construction bond i s void and fails as a matter of law, the requirement that a fine be imposed for a violation of the Covenants is not satisfied under G.S. 47F

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- 102(12), and the fine is improper for that reason, alone.” N.C. Gen. Stat. § 47F

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- 102(12) (2015) provides for the imposition of reasonable fines. The association may

After notice and an opportunity to be heard, impose reasonable fines or suspend privileges or services provided by the association (except rights of access to lots) for reasonable periods for violations of the declaration, bylaws, and rules and regulations of the association[.] The record clearly indicates , and there is no factual dispute , that Defendant refused to accept or review Plaintiffs’ application without them also posting a $250 bond. Defendant fined Plaintiffs $100 for each day they did n ot submit the illegal $250 bond, totaling $1,400 worth of fines. Defendant subsequently reduced th e amount of the fine to $1,050. The additional requirement of a bond is not authorized either by th e Covenants or required by the PCA

. Pla intiffs attempted to submit their application without the bond, which Defendant refused to accept until the bond was submitted , under protest. Defendant then fined Plaintiffs for each day it had refused to accept Pla intiffs’ application without the illicit bond. Defendant did not impose the fine for any other violation. Defendant’s imposition of the fine was unlawful. See N.C. Gen. Stat. § 47F

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- 102(12).M C V ICKER V
. B OGUE S OUND Y ACHT C LUB Opinion of the Court

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- Defendant’ s impo sition of a fine for Plaintiffs not submitting the illegal $250 b ond is plainly not reasonable. See Id

. Presuming arguendo , Defendant provided Plaintiffs with proper statutory notice and an opportunity to be heard before imposing the fine, imposing the fine itself is , ipso facto , to th e illegal bond requirement , unlawful as it is not authorized by the Covenants and is not required under the PCA. Id. V I . Conclusion Viewing the evidence in the light most favorable to Plaintiffs, as is required upon Defen dant’s motion, no genuine issue of material fact exists that Defendant unlawfully required Plaintiffs to post a bond with their application, and illegally imposed a fine for Plaintiffs’ failure to do so

. The trial court’s grant of summary judgment to Defendant is reversed and the matter remanded to the superior court with instructions to enter summary judgment in favor of Plaintiffs. It is so ordered. REVERSED AND REMANDED

. Judge STROUD concurs. Judge HUNTER dissents in a separate opinion.No. COA17

- 447

– McVicker v. Bogue Sound Yacht Club

HUNTER, JR., Robert N., Judge, dissenting in a separate opinion.
I respectfully disagree with the majority’s decision reversing the trial court’s order. I would dismiss the portion of Plaintiffs’ appeal arguing imposition of the bond was improper. I wo uld affirm the trial court’s order granting summary judgment for Defendant and dismissing with prejudice Plaintiffs’ claims for declaratory relief as to the issue of whether Defendant failed to properly impose the fine. Trial courts have discretion to de cline to enter declaratory judgment. The North Carolina Declaratory Judgment Act provides in pertinent part: “[t]he court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not termi nate the uncertainty or controversy giving rise to the proceeding . . . .” N.C. Gen. Stat. § 1

- 257 (2015). The issue of whether Defendant had authority to impose the $250 construction bond is moot, as both parties agree Defendant fully refunded the bon d to Plaintiffs. The majority asserts the issue is “capable of repetition yet evading review” and therefore, not moot. This Court has stated cases are capable of repetition yet evading review when “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Crumpler v. Thornburg , 92 N.C. App. 719, 723, 375 S.E.2d 708, 711 (1989) (quoting Leonard v. Hammond , 804 F. 2d 838, 842 (4th Cir. 1986)).M C V ICKER V
. B OGUE S OUND Y ACHT C LUB HUNTER, JR. , Rober t N., J., dissenting

2 Because the bond had been fully refunded at the time of trial there was no longer a controversy present needing judicial wisdom. The is sue of imposition of a bond is not ordinarily an event of short duration so as to evade full litigation. If Defendant had not refunded the bond, then the imposition would not expire, and Plaintiffs would have ample opportunity to litigate their claim. Ye t here, because the bond has been fully refunded, addressing the issue will have no practical effect on the controversy and the trial court properly exercised its discretion to decline to enter declaratory judgment. As to the issue of whether imposition of the fine was improper, Plaintiffs did not ask the trial court to decide whether Defendant had the authority to impose the fine in their complaint. Instead, Plaintiffs challenged Defendant’s failure to comply with the proper procedures and statutory re quirements for imposition of fines. Lacking an allegation in the complaint asking for a determination of the authority to impose fines, this Court should decline to address whether Defendant had authority to impose the fines and instead only address whet her Defendant complied with the procedural requirements for imposition of the fines. Plaintiffs’ brief states “[s]pecifically, the issue before this Court is whether the notice of hearing issued by the Association was sufficient to put the Plaintiff

- Appel lants on ‘notice of the charge,’ as required by G.S. 47F

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- 107.1.”M C V ICKER V
. B OGUE S OUND Y ACHT C LUB HUNTER, JR. , Rober t N., J., dissenting

3 I would conclude Defendant complied with statutory requirements when it issued Plaintiffs two notices. The procedure for imposing fines for violations of the Association’s rules and regu lations is set forth in N.C. Gen. Stat. § 47F

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- 107.1 which provides, in pertinent part:

Unless a specific procedure for the imposition of fines or suspension of planned community privileges or services is provided for in the declaration, a hearing shall be held before the executive board or an adjudicatory panel appointed by the executive boa rd to determine if any lot owner should be fined or if planned community privileges or services should be suspended pursuant to the powers granted to the association in G.S. 47F

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- 102(11) and (12). Any adjudicatory panel appointed by the executive board s hall be composed of members of the association who are not officers of the association or members of the executive board. The lot owner charged shall be given notice of the charge, opportunity to be heard and to present evidence, and notice of the decisio n.
Because the covenants at issue in this case do not contain a specific procedure for the imposition of fines, the procedure set forth in the Act governs. The Act provides certain minimal due process guarantees, allowing imposition of fines only after an owner is given: (1) notice of the charge; (2) an opportunity to be heard and to present evidence; and (3) notice of the decision. N.C. Gen. Stat. § 47F

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- 107.1; Reidy v. Whitehart Ass’n , 185 N.C. App. 76, 84, 648 S.E.2d 265, 271 (2007). Here, Defend ant issued Plaintiffs two notices. First, Defendant sent “Notice of ACC Violation” dated 3 October 2013, ordering Plaintiffs to “cease and desist”M C V ICKER V
. B OGUE S OUND Y ACHT C LUB HUNTER, JR. , Rober t N., J., dissenting

4 clearing the trees on their property until Plaintiffs submitted the proper application form and $250 “Refund able Construction Bond.” The letter included the regulation outlining the procedure for obtaining the approval of the Architectural Committee prior to conducting construction or improvements. Defendant sent another notice dated 23 October and titled “Hea ring Notice.” This letter again indicated Plaintiffs failed to comply with the proper procedure for obtaining Architectural Committee approval prior to clearing the trees on their property, and it indicated Defendant’s authority to impose fines against Pl aintiffs which could be as much as one hundred dollars per occurrence or per day. The letter also included notice of a hearing to be held on 4 November 2013 and invited Plaintiffs to attend. Nothing in the Act, or our case law suggests any particular for m of notice is required beyond simply providing the owner with notice of the violation. Here, Plaintiffs were given adequate notice in the form of two written letters. Thus, I would conclude Defendant complied with the requirements of the Act in imposing a fine on Plaintiffs, and affirm the trial court’s order granting summary judgment for Defendant as to this issue. Therefore, because Defendants fully refunded the bond, Plaintiffs’ complaint did not contest Defendant’s authority to impose the fines, an d because notice of the fines complied with statutory requirements, the trial court’s order granting summary judgment to Defendant and dismissing Plaintiffs’ claim for declaratory relief was
proper.M C V ICKER V
. B OGUE S OUND Y ACHT C LUB HUNTER, JR. , Rober t N., J., dissenting

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