Bicket v. McLean Securities, Inc.

532 S.E.2d 183, 138 N.C. App. 353, 2000 N.C. App. LEXIS 641
CourtCourt of Appeals of North Carolina
DecidedJune 20, 2000
DocketNo COA99-737
StatusPublished
Cited by4 cases

This text of 532 S.E.2d 183 (Bicket v. McLean Securities, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bicket v. McLean Securities, Inc., 532 S.E.2d 183, 138 N.C. App. 353, 2000 N.C. App. LEXIS 641 (N.C. Ct. App. 2000).

Opinion

EDMUNDS, Judge.

This case is the continuation of a long-running dispute between members of Pinehurst Country Club and various owners of the club. In the late 1970s, Diamondhead Corporation (Diamondhead) pm-chased Pinehurst, Incorporated, which owned all of the public properties in the Village of Pinehurst, large undeveloped acreages, golf courses, and other recreational facilities. As a result of its purchase of Pinehurst, Incorporated, Diamondhead came into ownership of Pinehurst Country Club, Inc., which operated Pinehurst Country Club. Diamondhead developed and sold residential lots to buyers, who in turn could join Pinehurst Country Club upon approval of Pinehurst Country Club, Inc. When a disagreement arose between members of Pinehurst Country Club and Diamondhead as to certain membership privileges, the members filed a class action lawsuit to obtain a declaration of their membership rights. The class action ended when the parties agreed to a Final Consent Judgment on 19 December 1980.

[356]*356In 1982, Pinehurst, Incorporated, the owner of Pinehurst Country Club, merged into Diamondhead’s affiliated corporation, Purcell Co., Inc. Purcell Co., Inc. immediately transferred all assets and stock of Pinehurst Country Club to Pinehurst Inc. As a result of these transactions, Pinehurst, Incorporated no longer existed as a legal entity as of that date.

Diamondhead also owned and operated a resort hotel and associated villas, condominiums, and conference center known as Pinehurst Hotel and Country Club, later called Pinehurst Resort and Country Club. In 1984, defendant Resorts of Pinehurst, Inc., purchased Pinehurst Resort and Country Club and succeeded to the interests of the original owner-defendants. Resorts of Pinehurst, Inc., changed its name in 1998 to Pinehurst, Inc., which is not to be confused with Pinehurst, Incorporated or with Pinehurst Inc., the immediate successor of Pinehurst, Incorporated.

Around 1990, a dispute arose between Resorts of Pinehurst, Inc., and members of the Pinehurst Country Club over certain provisions of the 1980 Final Consent Judgment. The parties filed an action for declaratory judgment asking the trial court to construe contested sections of the Final Consent Judgment. The trial court issued its judgment on 28 December 1994, and both parties appealed. This Court affirmed in part, reversed in part, and remanded the case to the trial court to take action consistent with its directives for interpreting the Final Consent Judgment. See Bicket v. McLean Securities, Inc., 124 N.C. App. 548, 478 S.E.2d 518 (1996) (hereinafter Bicket I), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997). The trial court accordingly issued an “Order Modifying Declaratory Judgment” on 21 April 1999. Both parties appeal from that modifying order.

I. Defendant’s Appeal

A. Final Consent Judgment — Protected Class

Defendant first contends the trial court failed to comply with our holding in Bicket I. One of the issues this Court addressed in Bicket I concerned identifying those members who fell under the protection of the 1980 Final Consent Judgment. The 1994 Declaratory Judgment issued by the trial court stated:

The rights and privileges of each subclass of membership referred to and described in paragraph 6 of the Final Consent Judgment are not limited to Pinehurst Country Club members as individuals. Those rights are extended to each subclass of mem[357]*357bership described in the Final Consent Judgment and are intended to include, and do include any membership that was in existence as of the entry of the Final Consent Judgment, or which has come into existence within the various enumerated subclasses since the entry of the Final Consent Judgment.
. . . Any membership that was in existence at the time of the Final Consent Judgment, or that has been sold, transferred, or approved after the Final Consent Judgment, wether [sic] by direct purchase or transfer in any one of the subclasses of membership enumerated in paragraph 6 of the Final Consent Judgment, is entitled to the protections set out in the Final Consent Judgment.

(Emphasis added.)

In Bicket /, defendant assigned as error the “trial court’s conclusion that members who joined the Pinehurst Country Club after the entry of the Final Consent Judgment are within the class protected by that agreement.” Id. at 562, 478 S.E.2d at 526. In addressing this assignment of error, we held that the Final Consent Judgment

limits the class to those holding membership as of 1 October 1980. The trial court, however, extended the protections of the Final Consent Judgment not only to those within the classes of membership as of the entry of that judgment, but also to those memberships which have come into existence since the Final Consent Judgment.

Id. Therefore, we remanded the case for modification of the Declaratory Judgment “to limit the protections of the Final Consent Judgment to only those holding membership as of 1 October 1980.” Id.

Upon remand, the trial court in its Order Modifying Declaratory Judgment struck the language from the original Declaratory Judgment that purported to extend protection to any memberships that came into existence after 1 October 1980 and limited protection to “those holding membership in Pinehurst Country Club, Inc. as of 1 October 1980.” However, the trial court also modified the judgment as follows:

It is further ordered, that the second sentence of the fourth paragraph of Section “1 PROTECTED CLASS”il is modified and rewritten to state: “Any membership that was in existence as of October 1, 1980, and has been transferred after the Final Consent [358]*358Judgment in any one of the subclasses enumerated in Paragraph 6 of the Final Consent Judgment is entitled to the protection set out in the Final Consent Judgment.”
It is further [o]rdered that the sixth paragraph of Section “1 PROTECTED CLASS” is hereby modified and rewritten to state as follows: “The classification of those memberships listed in Paaragraph [sic] 6(a),(b),(c),(d), and (f) that were in existence as of October 1,1980 are protected by the terms of the Final Consent Judgment regardless of whether transferred before or after October 1, 1980.”

Defendant contends that the trial court’s Order Modifying Declaratory Judgment does not comply with our mandate because the quoted provisions extend class protection to memberships that were in existence before 1 October 1980 and have been transferred to new persons after 1 October 1980. Plaintiffs respond that Bicket I did not address the transfer of memberships, and consequently the portion of the Declaratory Judgment dealing with that issue is the law of the case.

Upon a close review of the record and our opinion in Bicket I, we conclude that this Court did address the issue of transferred memberships in Bicket I. In a section titled “Protected Class,” the Declaratory Judgment considered the question of who was protected. Although this section did not distinguish between those in the protected class in terms of how they became members, it did acknowledge that membership might result from sale, transfer, or other means.

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Cite This Page — Counsel Stack

Bluebook (online)
532 S.E.2d 183, 138 N.C. App. 353, 2000 N.C. App. LEXIS 641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bicket-v-mclean-securities-inc-ncctapp-2000.