An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 Appellate Procedure.

NO. COA14-476

NORTH CAROLINA COURT OF APPEALS

Filed: 31 December 2014

THE CURRITUCK CLUB PROPERTY

OWNERS ASSOCIATION, INC.,

Plaintiff,

v. Currituck County

No. 11-CVS-118

MANCUSO DEVELOPMENT, INC.,

Defendant.

Appeal by plaintiff from order entered 4 March 2013 by 

Judge Walter H. Godwin, Jr. and judgment and orders entered 24 

May 2013 and 26 September 2013 by Judge Jerry R. Tillett in 

Currituck County Superior Court. Heard in the Court of Appeals 

7 October 2014.

Hornthal, Riley, Ellis & Maland, LLP, by M. H. Hood Ellis, 

for plaintiff-appellant.

Gregory E. Wills, P.C., by Gregory E. Wills, for defendantappellee.

Jordan Price Wall Gray Jones & Carlton, by Henry W. Jones 

and J. Matthew Waters, for amicus curiae Community 

Associations Institute-North Carolina Chapter, Inc.

DAVIS, Judge.
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The Currituck Club Property Owners Association, Inc. 

(“TCCPOA”) appeals from (1) the denial of its motion for summary 

judgment; (2) the trial court’s entry of judgment on the jury’s 

verdict in favor of Defendant Mancuso Development, Inc. (“MDI”); 

(3) the denial of its motion for a new trial; and (4) the 26 

September 2013 order awarding MDI costs and attorneys’ fees. 

After careful review, we affirm.

Factual Background

TCCPOA is the homeowners’ association for The Currituck 

Club, a residential and golfing community located in the Outer 

Banks in Currituck County, North Carolina. The Currituck Club 

community was originally owned and developed by the Currituck 

Associates–Residential Partnership (“CARP”) and is comprised of 

various sub-developments, including The Hammocks, a 70-lot subdevelopment; Magnolia Bay, a 70-lot sub-development; Windswept 

Ridge, a sub-development of 30 condominium units; and The 

Cottages, a 23-lot sub-development.

Prior to selling any lots within The Currituck Club, CARP 

subjected the property to a Declaration of Covenants, Conditions 

and Restrictions (“the Declaration”). Article 8 of the 

Declaration provides that each member — defined as a record 

owner of a “lot” or “dwelling unit” within The Currituck Club —

is responsible for paying annual assessments to TCCPOA. The 
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Declaration defines a “lot” as “any unimproved parcel within The 

Properties which is intended for use as a site for a single 

family detached dwelling or as a site for a patio home or zero 

lot line home, as shown upon any recorded subdivision map of any 

part of The Properties, with the exception of Common Properties 

or Limited Common Properties.” Pursuant to the Declaration, 

TCCPOA is responsible for managing The Currituck Club and 

enforcing its covenants, including the collection of assessments 

from property owners.

On 8 November 2005, MDI entered into a written Agreement of 

Purchase and Sale (“the Purchase Agreement”) with CARP to 

acquire 6.12 acres of property for the development of The 

Cottages, a new sub-development within The Currituck Club. The 

deed conveying the property stated that the property was subject 

to the restrictive covenants and reservations of record.

On 19 September 2006, the final subdivision plat for The 

Cottages, reflecting 23 lots, was recorded in the office of the 

Currituck County Register of Deeds. On 21 September 2006, the 

“Supplemental Declaration of Covenants, Conditions and 

Restrictions[:] The Currituck Club for The Cottages” (“the 

Supplemental Declaration”) was recorded with the Currituck 

County Register of Deeds. The Supplemental Declaration stated 

that The Cottages were subject to the Declaration and made 
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exceptions only for “architectural control” and “restrictions on 

use” provisions. The Supplemental Declaration did not contain a 

provision exempting The Cottages from the obligation to pay 

assessments pursuant to the Declaration.

By letter dated 30 May 2007, Kelly Shields (“Shields”), the 

management agent for TCCPOA from 2003 to 2009, informed Bernie 

Mancuso (“Mancuso”), the president of MDI, that MDI owed 

assessments to TCCPOA and attached invoices for the homeowners’

association assessments regarding the 16 unimproved lots MDI 

currently owned as of that date.

1 Upon receiving the letter and 

invoices from Shields, Mancuso telephoned her and informed her 

that it was his understanding that MDI was not obligated to pay 

assessments. Mancuso referred to the Purchase Agreement with 

CARP, specifically referencing Section 5, which provides as 

follows:

Each initial third party purchaser of a Lot 

or Unit will be required to become a member 

of the Currituck Club Property Owners 

Association subject to all of the rights and 

responsibilities appurtenant thereto.2

 

1 As of 30 May 2007, MDI had sold 7 of the 23 lots and the new 

owners of those lots were assessed directly.

2 Shields testified at trial that with regard to other subdevelopments in The Currituck Club “it was the practice that if 

that sub-developer owned the lot [and] had not yet built a house 

or sold it to a third party, that sub-developer did not pay 

assessments to The Currituck Club Property Owners Association. 

But at such time the sub-developer sold to a third party owner, 

that owner was responsible for starting to pay the assessments.”
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After their conversation, Shields informed Mike Ward (“Ward”), 

the then president of TCCPOA, of Mancuso’s objection to paying 

the invoiced assessments. Ward arranged a meeting with Mancuso 

and Mickey Hayes (“Hayes”), the manager and attorney in fact for 

CARP, to resolve the matter.

At trial, Shields testified that following this meeting, 

Ward told her that Mancuso did not need to pay the assessments 

for the unimproved lots “[b]ut instead we were instructed to 

invoice CARP for [16 lots in] the Windswept Ridge [subdevelopment] that hadn’t previously been invoiced.” She also 

testified that she did not believe that CARP was required to pay 

assessments on these Windswept Ridge lots. Hayes stated in his

deposition that CARP understood that it “didn’t actually owe 

assessments on those lots” because the lots had not yet been 

recorded at the Currituck County Register of Deeds and were 

merely illustrated on a sketch plan.

An email dated 23 October 2007 from Shields to Nicole 

Etheridge, the bookkeeper responsible for preparing invoices, 

was introduced at trial and stated:

Ok, I’ve had a moment to sort this out . . .

Go ahead and void any charges to Bernie 

Mancuso on any cottage lot that used to be 

owned by him or that still is owned by him. 

Only charge the pro-rated fee to the owner 

that he sold to. We will NOT be charging 
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Bernie any 2008 dues, either.

Then go ahead and invoice CARP for the full 

year 2007 unimproved fee on lots 430-445 (16 

lots). These are NOT the Historic Shooting 

Club Lots — he already paid for those. 

These are the other lots that were recently 

platted. Print out the 16 invoices and give 

to me, I’ll send over to Mickey with a cover 

letter. We WILL bill CARP for all of their 

lots also in 2008.

This can be done any time before Oct 31, so 

that it will show on the Oct financial 

reports.

Thanks,

KS

The 2007 invoices to MDI regarding the assessments on the 16 

lots of The Cottages were then voided, and CARP was invoiced for 

lots 430-445, the 16 lots in the Windswept Ridge subdevelopment. Evidence in the record reflects that CARP has paid 

assessments on lots 430-445 annually from 2007 to the date of 

trial in 2013.

In 2010, Barney Ottinger (“Ottinger”), who was serving as 

TCCPOA’s president at that time, expressed concern about the 

operating funds of TCCPOA and sought to determine whether TCCPOA 

was collecting all of the assessments that it was due. Ottinger 

examined the Declaration, bylaws, and Supplemental Declaration 

and was unable to find any provisions exempting MDI from paying 

assessments to TCCPOA. In a letter dated 4 March 2010, counsel 
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for TCCPOA wrote Mancuso a letter asking if there was “any legal 

basis by which Mancuso Development, Inc. contends the Cottage 

lots are not subject to assessment by TCCPOA.” TCCPOA then 

invoiced MDI for assessments on both The Cottages lots that were 

currently owned by MDI and for those lots MDI no longer owned

but that had accrued assessments during the period of time 

before the dates of sale. When these invoices went unpaid, 

TCCPOA filed a claim of lien against the lots on 11 August 2010.

On 10 March 2011, TCCPOA instituted the present action by 

filing a verified complaint against MDI in Currituck County 

Superior Court (1) to collect the unpaid assessments on all of 

The Cottages lots in the total amount of $121,977.84; and (2) to 

enforce its claim of lien on The Cottages lots that MDI still 

owned. On 13 May 2011, MDI filed an answer and third-party 

complaint against CARP. The answer asserted various defenses, 

including accord and satisfaction, and the third-party complaint 

contained an assertion that “[a] key provision within all 

preliminary discussions was the fact that CARP would ensure that 

MDI would not be a member of the TCCPOA and that MDI would not 

be obligated to pay HOA fees on its unsold lots. Only thirdparty purchasers would become TCCPOA members and be obligated to 

pay HOA fees.” MDI also claimed that Section 5 of the Purchase 

Agreement coupled with the subsequent dealings between MDI and 
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CARP reflected a recognition by CARP that MDI was not obligated 

to pay assessments. In its third-party claim, MDI contended

“that CARP is obligated to indemnify MDI in exactly the same 

amount that MDI is ultimately ordered to pay TCCPOA.”

CARP moved to dismiss the third-party complaint against it 

pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil 

Procedure on 9 June 2011, and on 29 July 2011, the Honorable

Richard L. Doughton entered an order dismissing the third-party 

complaint. MDI appealed from the order but then moved to 

withdraw the appeal, explaining that “since the filing of the 

Appellee’s brief, Appellant has received documents and 

discovered facts through discovery occurring at the trial level 

tending to show that there is little or no likelihood that any 

additional monies are due to the original Plaintiffs herein 

stemming from the claims made in the original complaint and, 

therefore, very little likelihood that Appellant’s claims for 

indemnification will need to be adjudicated.” This Court 

dismissed the appeal by order entered 10 July 2012.

On 4 June 2012, MDI filed a motion to amend its answer so 

as to add the following:

1. That any and all payments made by [CARP]

for lots 430-445 be deemed an offset for any 

amounts claimed due from MDI to TCCPOA for 

the period between 2007 and 2012.

2. That all payments by CARP for said lots 
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430-445 in excess of the total number of 

recorded lots within the subdivision as a 

whole, at any point in time after 2007, be 

deemed an offset against any amounts claimed 

due by TCCPOA against MDI for the period 

between the recording of the Plat for the 

Cottages Sub-development on September 21, 

2006 and January 1, 2007.

3. That pursuant to N.C.G.S. 47F-3-120 that 

the Defendant herein be allowed to recover 

reasonable attorneys fees and costs incurred 

in defending this action in the event the 

fact finder determines that no amounts are 

due from MDI to TCCPOA as set forth in the 

affirmative defenses plead herein.

4. That Pursuant to N.C.G.S. 47F-1-103(4), 

and N.C.G.S. 47F-3-107(a), the Plaintiff 

herein be deemed to be without authority to 

make common area assessments against the 

Defendant as claimed herein as none of the 

common elements within the subdivision where 

[sic] leased or titled in the POA at all 

times relevant hereto.

The trial court granted MDI’s motion to amend on 18 July 2012.

On 23 October 2012, TCCPOA filed a motion for summary 

judgment pursuant to Rule 56 of the North Carolina Rules of 

Civil Procedure. MDI filed a cross-motion for summary judgment 

on 26 October 2012. The parties’ motions came on for hearing

before the Honorable Walter H. Godwin, Jr. on 4 February 2013. 

Judge Godwin denied both parties’ motions for summary judgment 

by order entered 4 March 2013.

A jury trial was held in Currituck County Superior Court 

before the Honorable Jerry R. Tillett beginning on 6 May 2013. 
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Shortly before the charge conference, the parties stipulated 

that there was an obligation to pay assessments on The Cottage 

lots under the Declaration.3 The stipulation was entered outside 

the presence of the jury, and the jury was not informed of the 

stipulation.

The jury returned a verdict in favor of MDI, determining 

that it did not owe TCCPOA any money. Accordingly, the trial 

court entered a judgment on 24 May 2013 dismissing TCCPOA’s 

complaint with prejudice and ordering the Clerk of Court to 

cancel the claim of lien on the MDI lots.

On 3 June 2013, TCCPOA filed a motion for a new trial, 

arguing that “[t]he jury verdict makes no rational sense” and 

that “[t]he jury was either confused or disregarded the Court’s 

instructions.” The trial court denied TCCPOA’s motion by order 

entered 26 September 2013.

On 28 June 2013, MDI filed a motion for attorneys’ fees and 

costs pursuant to N.C. Gen. Stat. § 47F-3-116. On 26 September 

2013, the trial court entered an order directing TCCPOA to pay 

attorneys’ fees in the amount of $120,247.50 and $3,308.00 in 

costs associated with MDI’s defense of TCCPOA’s suit. TCCPOA 

gave notice of appeal from the denial of summary judgment, the 

 

3 It likewise appears from the trial transcript that counsel for 

both parties agreed that no obligation existed under the 

Declaration to pay assessments on “lots that had not yet been 

recorded,” which would encompass lots 430-445.
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final judgment of the trial court, the denial of its motion for 

a new trial, and the order awarding attorneys’ fees and costs to 

MDI.

Analysis

I. Denial of Motion for Summary Judgment

TCCPOA first argues that the trial court erred by denying 

its motion for summary judgment. However, it is well 

established that “[t]his Court cannot consider an appeal from 

the denial of a summary judgment motion now that a final 

judgment on the merits has been made.” Austin v. Bald II, 

L.L.C., 189 N.C. App. 338, 341, 658 S.E.2d 1, 3, disc. review 

denied, 362 N.C 469, 665 S.E.2d 737 (2008). We have explained 

that

[t]o grant a review of the denial of the 

summary judgment motion after a final 

judgment on the merits . . . would mean that 

a party who prevailed at trial after a 

complete presentation of evidence by both 

sides with cross-examination could be 

deprived of a favorable verdict. This would 

allow a verdict reached after the 

presentation of all the evidence to be 

overcome by a limited forecast of the 

evidence. In order to avoid such an 

anomalous result, we hold that the denial of 

a motion for summary judgment is not 

reviewable during appeal from a final 

judgment rendered in a trial on the merits.

Id. at 341, 658 S.E.2d at 3-4 (citation omitted). Consequently, 

we decline to address TCCPOA’s argument regarding the trial 
-12-

court’s denial of its summary judgment motion as our prior case 

law prohibits us from doing so. See Harris v. Walden, 314 N.C. 

284, 286, 333 S.E.2d 254, 256 (1985) (“[T]he denial of a motion 

for summary judgment is not reviewable during appeal from a 

final judgment rendered in a trial on the merits.”).

II. Admission of Parol Evidence at Trial

TCCPOA next argues that the trial court erred by admitting 

certain parol evidence concerning Section 5 of the Purchase 

Agreement between MDI and CARP. TCCPOA contends that the 

admission of this evidence was prejudicial error, requiring a 

new trial.

The parol evidence rule is not a rule of 

evidence but of substantive law. . . . It 

prohibits the consideration of evidence as 

to anything which happened prior to or 

simultaneously with the making of a contract 

which would vary the terms of the agreement. 

Generally, the parol evidence rule prohibits 

the admission of evidence to contradict or 

add to the terms of a clear and unambiguous 

contract. Thus, it is assumed the parties 

signed the instrument they intended to sign, 

. . . and absent evidence or proof of mental 

incapacity, mutual mistake of the parties, 

undue influence, or fraud, . . . the court 

does not err in refusing to allow parol 

evidence.

Drake v. Hance, 195 N.C. App. 588, 591, 673 S.E.2d 411, 413 

(2009) (citation and brackets omitted).

On 4 May 2013, TCCPOA filed a motion in limine to exclude 

“any and all evidence, references to evidence, testimony or 
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argument that Defendant (“MDI”) was and is exempt from paying 

assessments to Plaintiff on the lots Defendant owns in The 

Cottages section of The Currituck Club.” In this motion, TCCPOA 

argued that in granting CARP’s Motion to Dismiss MDI’s ThirdParty Complaint, Judge Doughton “held the November 8, 2005 

Agreement of Purchase and Sale was unambiguous, that it did not 

say MDI was exempt from paying assessments on lots it owned in 

The Cottages, and that evidence contending otherwise was 

inadmissible based on the parol evidence rule.”

The trial court reserved ruling on TCCPOA’s motion in 

limine and, during the trial, sustained TCCPOA’s objections to 

the introduction of parol evidence that attempted to vary or 

contradict the written terms of the Purchase Agreement or 

explain the legal effect of the Purchase Agreement. The trial 

court did, however, allow certain evidence to come in on the 

subject of why CARP would voluntarily assume the responsibility 

to pay assessments that MDI owed, including (1) Mancuso’s 

testimony about the meeting between himself, Ward, and Hayes 

after MDI was first invoiced for assessments; and (2) Hayes’ 

deposition testimony that “the whole reason we agreed to make 

that payment was to . . . absolve MDI of the obligation to pay 

those assessments.”

In determining that the admitted portions of Hayes’ 
-14-

testimony did not violate the parol evidence rule, the trial 

court reasoned that

[t]he Parol Evidence Rule applies to 

transactions involving a writing wherein the 

parties or persons, two [2] or more have 

reduced a[n] . . . agreement to writing[,]

then the written terms, those specifically 

dealt with were not allowed to be 

contradicted or varied by oral or other 

testimony.

. . . . The Court interprets the testimony 

to be about a contract. The contract being 

the agreement of purchase and sale dated 

November 8th, 2005 and the witness purports 

to testify about that contract and the 

intent of adding Paragraph [5] in that 

contract.

The witness’s testimony, the Court 

determines does not purport to vary or 

contradict the precise written provisions of 

the paragraph. Therefore, on that basis and 

that being the only basis before the Court, 

the Court overrules the objection.

Indeed, contrary to TCCPOA’s argument on appeal, the 

portions of Mancuso’s and Hayes’ testimony at issue did not — as 

TCCPOA claims in its brief — “tell the jury that Section 5 of 

the Agreement exempted MDI from the obligation to pay 

assessments on The Cottage lots.” Instead, this evidence 

described the history, relationship, and interactions between 

CARP and MDI and attempted to demonstrate the motive CARP might 

have had to pay assessments that MDI was, in fact, otherwise 

responsible for paying.
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Accordingly, we hold that this evidence did not violate the 

parol evidence rule because it did not attempt to alter or 

dispute the legal effect of the terms of the Purchase Agreement. 

See Ingersoll v. Smith, 184 N.C. App. 753, 755, 647 S.E.2d 141, 

143 (2007) (“The parol evidence rule prohibits the admission of 

parol evidence to vary, add to, or contradict the terms of an 

integrated written agreement . . . .” (citation and internal 

quotation marks omitted)). Therefore, TCCPOA’s argument on this 

issue is overruled.

III. Denial of TCCPOA’s Motion for New Trial

TCCPOA next argues that the trial court erred by denying 

its motion for a new trial. We disagree.

Our standard of review regarding the granting or denial of 

a motion for a new trial is as follows:

Appellate review is strictly limited to the 

determination of whether the record 

affirmatively demonstrates a manifest abuse 

of discretion by the judge. The trial 

court’s discretion is practically unlimited. 

A discretionary order pursuant to . . . Rule 

59 for or against a new trial upon any 

ground may be reversed on appeal only in 

those exceptional cases where an abuse of 

discretion is clearly shown. A manifest 

abuse of discretion must be made to appear 

from the record as a whole with the party 

alleging the existence of an abuse bearing 

that heavy burden of proof. An appellate 

court should not disturb a discretionary 

Rule 59 order unless it is reasonably 

convinced by the cold record that the trial 

judge’s ruling probably amounted to a 
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substantial miscarriage of justice.

Anderson v. Hollifield, 345 N.C. 480, 483, 480 S.E.2d 661, 663 

(1997) (citations, quotation marks, brackets, and emphasis

omitted).

The basis of TCCPOA’s motion requesting a new trial is that 

the jury’s verdict “makes no rational sense” because MDI 

stipulated that it was obligated to pay assessments on The 

Cottage lots, and the jury never reached the issue as to whether 

the evidence supported an accord and satisfaction. TCCPOA 

contends that accord and satisfaction would have been the only 

possible basis for its conclusion that MDI did not owe 

assessments to TCCPOA. The verdict sheet returned by the jury

stated as follows:

ISSUE ONE

Does the Defendant owe the Plaintiff money 

on account?

ANSWER: NO___

If your answer to this Issue is “yes,” 

proceed to Issue Two. If your answer to 

this Issue is “no,” stop and proceed no 

further.

ISSUE TWO

Is the Defendant excused from the payment by 

an accord and satisfaction?

ANSWER: _____

If your answer to this Issue is “yes,” 
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proceed no further. If your answer to this

Issue is “no,” proceed to Issue Three.

ISSUE THREE

What amount, if any, does the Defendant owe 

the Plaintiff on account?

ANSWER: $_____

As reflected on the verdict sheet, the jury instructions 

first charged the jury with determining whether MDI “owed 

[TCCPOA] money on account.” The trial court elaborated on this 

issue by explaining to the jury as follows:

Now, on this issue, ladies and gentlemen, 

the burden of proof is on the Plaintiff. 

That means that the Plaintiff must prove to 

you, by the greater weight of the evidence, 

that the Defendant owes annual assessments 

on The Cottage Lots for which the Plaintiff 

has not [been] paid.

As to this issue on which the Plaintiff has 

the burden of proof, if you find by the 

greater weight of the evidence that the 

Defendant owes money to the Plaintiff on 

account for annual assessments, then it 

would be your duty to answer that issue, 

“yes” in favor of the Plaintiff.

(Emphasis added.) TCCPOA did not object to this portion of the 

jury instruction. In fact, TCCPOA specifically requested that 

this instruction — the pattern jury instruction for an action on 

an unverified account — be given.

TCCPOA argues in its brief that the portion of the 

instruction requesting the jury to determine whether TCCPOA had
-18-

or had not been paid for the assessments MDI was obligated to 

pay could not justify the jury’s ultimate determination that MDI 

did not owe TCCPOA “money on account.” This is so, TCCPOA 

argues, because the “payment by CARP” argument was not included 

in the jury instructions and was not supported by the evidence 

offered at trial. At oral argument in this Court, however, 

counsel for TCCPOA clarified that TCCPOA’s argument on appeal 

(1) is not that the jury’s finding could only have been legally 

supportable if an express instruction on MDI’s “payment by CARP” 

defense had been given; but rather that (2) there was no 

rational evidence to support the jury’s finding that CARP paid

MDI’s assessment obligations.

However, as discussed above, the jury heard evidence that 

(1) as soon as CARP began paying assessments on unrecorded lots 

as to which it was not obligated to pay such assessments, MDI’s 

invoices were voided by TCCPOA; and (2) “the whole reason [CARP]

agreed to make [these] payment[s] was . . . to absolve MDI of 

the obligation to pay those assessments.” This evidence was 

sufficient to support the jury’s conclusion that CARP paid 

assessments on behalf of MDI such that MDI did not “owe[] annual 

assessments on The Cottage Lots for which [TCCPOA] has not

[been] paid.” Therefore, we cannot conclude that the trial 

court’s denial of TCCPOA’s motion for a new trial constituted an 
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abuse of discretion.

4

IV. Award of Costs and Attorneys’ Fees to MDI

TCCPOA’s final argument on appeal is that the trial court 

erred by ordering TCCPOA to pay $120,247.50 in attorneys’ fees 

and $3,308.00 in costs. TCCPOA contends that the trial court 

erred in awarding any attorneys’ fees at all under N.C. Gen. 

Stat. § 47F-3-116 or, in the alternative, that in the event we 

conclude that an award of attorneys’ fees was appropriate, the 

trial court should have apportioned the award to exclude fees 

stemming from the litigation of (1) MDI’s third-party claim 

against CARP; and (2) TCCPOA’s cause of action to recover on the 

underlying assessments owed (rather than from action taken to 

enforce the liens on MDI’s remaining lots).

N.C. Gen. Stat. § 47F-3-116 addresses the enforcement of 

liens for sums due to a homeowners’ association. At the time 

 

4 Amicus curiae Community Associations Institute-North Carolina 

Chapter, Inc. contends that “[a]n unfavorable outcome in this 

matter by this Court would negatively impact the significant 

progress made by [homeowners’] associations to make collection 

of assessments easier, particularly from developers and 

builders.” Our decision in this case, however, does not stem 

from any sort of legal determination that MDI was exempt from 

paying assessments but rather from the jury’s factual 

determination that evidence presented at trial showed CARP 

assumed the obligation of paying assessments on MDI’s behalf. 

Thus, we cannot agree that the outcome of this case opens “a 

Pandora’s box of problems for Community Associations throughout 

North Carolina” in the enforcement of assessments as amicus

curiae asserts.
-20-

period relevant to this action, subpart (e) of N.C. Gen. Stat. § 

47F-3-116 provided that a judgment in any action brought under 

the statute “shall include costs and reasonable attorneys’ fees 

for the prevailing party.” N.C. Gen. Stat. § 47F-3-116(e) 

(2011).5 In contending that the trial court erred by awarding 

any attorneys’ fees at all to MDI, TCCPOA relies on Willow Bend 

Homeowners Ass’n, Inc. v. Robinson, 192 N.C. App. 405, 665 

S.E.2d 570 (2008). In Willow Bend Homeowners Association, we 

explained that the plaintiff homeowners’ association could not 

recover attorneys’ fees under N.C. Gen. Stat. § 47F-3-116 

because it had only sought to recover unpaid assessments from a 

homeowner and had not brought an action seeking to foreclose on 

a lien created by the unpaid assessments. Id. at 418, 665 

S.E.2d at 578. Thus, we concluded that the plaintiff’s claim 

did not arise under N.C. Gen. Stat. § 47F-3-116, and as such, 

the plaintiff was not entitled to attorneys’ fees for claims 

“brought under this section” (as that phrase is used in N.C. 

Gen. Stat. § 47F-3-116). Id.

Here, however, TCCPOA clearly brought claims under N.C. 

Gen. Stat. § 47F-3-116 as it sought to foreclose on MDI’s lots 

 

5 The General Assembly subsequently amended N.C. Gen. Stat. § 

47F-3-116, effective on 1 October 2013. In the current version 

of the statute, the language requiring that attorneys’ fees and 

costs be awarded to the prevailing party is contained in subpart 

(g). See N.C. Gen. Stat. § 47F-3-116(g) (2013).
-21-

based on the liens created by MDI’s unpaid assessments. Indeed, 

TCCPOA’s complaint expressly references N.C. Gen. Stat. § 47F-3-

116 in its second claim for relief. Accordingly, based on its 

status as the prevailing party in an action brought under N.C. 

Gen. Stat. § 47F-3-116, MDI was entitled to an award of 

attorneys’ fees.

TCCPOA next contends that the trial court should have 

apportioned its award of attorneys’ fees to exclude fees that 

did not directly stem from MDI’s defense of TCCPOA’s claim

seeking to foreclose on the liens placed on The Cottage lots. 

In its order, the trial court stated that it was

unable to determine that all costs claimed, 

including all attorney’s fees claimed were 

not related to the defense of the 

enforcement of the claim of lien against 

real property. Alternatively, because of 

the overlap of defenses, the court cannot 

apportion the costs claimed, including the 

attorney’s fees between the defense of the 

enforcement of the claim of lien and the 

defense of any of the other claims made by 

[TCCPOA].

TCCPOA cites no legal authority in support of its

apportionment argument. Accordingly, we are unable to hold that 

the trial court abused its discretion on this ground, especially 

where the claims were all factually and legally intertwined.

See Whiteside Estates, Inc. v. Highlands Cove, L.L.C, 146 N.C. 

App. 449, 467, 553 S.E.2d 431, 443 (2001) (explaining that where 
-22-

all claims “arise from the same nucleus of operative facts and 

each claim was inextricably interwoven with the other claims, 

apportionment of fees is unnecessary” (citation and quotation 

marks omitted)), appeal dismissed and disc. review denied, 356 

N.C. 315, 571 S.E.2d 219 (2002); see also Williams v. New Hope 

Found., Inc., 192 N.C. App. 528, 530, 665 S.E.2d 586, 587 (2008) 

(“[T]o overturn the trial judge’s determination of attorney’s

fees and costs, the [appellant] must show an abuse of 

discretion.” (citation, quotation marks, and brackets omitted));

Beard v. WakeMed, ___ N.C. App. ___, ___, 753 S.E.2d 708, 712-13

(2014) (“The test for abuse of discretion is whether a decision 

is manifestly unsupported by reason, or so arbitrary that it 

could not have been the result of a reasoned decision. . . . 

[T]he reviewing court sits only to insure that the decision 

could, in light of the factual context in which it is made, be 

the product of reason.”). As such, TCCPOA’s argument on this 

issue is overruled.6

Finally, TCCPOA argues that the trial court abused its 

discretion by taxing certain costs in MDI’s favor. 

Specifically, TCCPOA argues that several of the expenses for 

which costs were awarded are not authorized by N.C. Gen. Stat. § 

 

6 We similarly reject TCCPOA’s contention that it was an abuse of 

discretion for the trial court not to exclude from its award of 

attorneys’ fees the fees incurred in connection with MDI’s 

third-party claim against CARP.
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7A-305(d) and, therefore, are “not recoverable and were 

improperly included in the costs assessed against TCCPOA.”

It is true that N.C. Gen. Stat. § 6-20 authorizes costs 

“[i]n actions where allowance of costs is not otherwise provided 

by the General Statutes” and limits the costs awarded to those 

expenses enumerated in N.C. Gen. Stat. § 7A-305(d). However,

N.C. Gen. Stat. § 47F-3-116 constitutes a separate and 

independent statutory authorization for an award of costs in 

this factual context. Furthermore, unlike N.C. Gen. Stat. § 6-

20, § 47F-3-116 does not contain any corresponding limitations

as to costs that may be awarded thereunder.

Although the trial court’s order cites N.C. Gen. Stat. § 6-

20 as a basis for its award of costs, we will not find an abuse 

of discretion where a separate statute — N.C. Gen. Stat. § 47F3-116 — allows for an award of costs and is devoid of the 

limitations on a trial court’s authority that exist under § 6-

20. See Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 

(1989) (explaining that order or judgment “will not be disturbed 

even though the trial court may not have assigned the correct 

reason for the judgment entered” when it is sustainable on other 

grounds). Moreover, we note that MDI’s motion requesting 

attorneys’ fees and costs expressly cited N.C. Gen. Stat. § 47F3-116 as a basis for its motion. Accordingly, we conclude that 
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the trial court did not err in its award of costs or attorneys’ 

fees.

Conclusion

For the reasons stated above, we affirm.

AFFIRMED.

Judges HUNTER, Robert C., and DILLON concur.

Report per Rule 30(e).