IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA25-701
Filed 6 May 2026
Swain County, No. 23CV000024-860
ROBINSON JOSEPH MYERS and ELIZABETH OWL-MYERS, Plaintiffs,
v.
SMOKY MOUNTAIN COUNTRY CLUB PROPERTY OWNERS’ ASSOCIATION, INC.; SHIRLEY SCHUBERT in her individual and legal capacity; and ED LAWSON in his individual and legal capacity, Defendants.
Appeal by defendants from order entered 17 January 2025 by Judge Gary M.
Gavenus in Swain County Superior Court. Heard in the Court of Appeals 24 March
2026.
Hedgepeth Law Group, PLLC, by Shira L. Hedgepeth, for the plaintiffs- appellees.
Rayburn Cooper & Durham, PA, by Ashley B. Oldfield and Ross R. Fulton, and David Sawyer, for the defendant-appellants.
TYSON, Judge.
Smoky Mountain Country Club Property Owners’ Association, Shirley
Schubert, and Ed Lawson (collectively, “the Association”) appeal from the trial court’s
order granting summary judgment on a declaratory judgment action in favor of
Robinson Joseph Myers and Elizabeth Owl-Myers (“the Myers”). We reverse the trial
court’s order and remand.
I. Background MYERS V. SMOKY MOUNTAIN COUNTRY CLUB PROP. OWNERS’ ASS’N
Opinion of the Court
Smoky Mountain Country Club (“SMCC”) is a planned residential community
located in Whittier, North Carolina. It is governed by the Amended and Restated
Declaration of Covenants, Conditions and Restrictions, and Reservation of
Easements for Smoky Mountain Country Club (“the Declaration”), recorded on 23
November 1999 in the Swain County Registry, and by the North Carolina Planned
Community Act. See N.C. Gen. Stat. Chapter 47F (2025). The parties to the
Declaration are: (1) the developer and declarant, Conley’s Creek Limited Partnership
(“CCLP”) and its successors and assigns; (2) owners of lots, townhomes, and
condominiums in SMCC (“Owners” or “Homeowners”); and, (3) the Association. All
home or lot owners in SMCC are required to be members of the Association.
A. Clubhouse Dues
Pursuant to the Declaration, CCLP agreed to construct recreational facilities,
known as the Clubhouse Use Facilities (“the Clubhouse”), and grant to the
Association and the Homeowners a perpetual nonexclusive right to use the Clubhouse
and facilities. The Homeowners agreed to pay Clubhouse Dues to the Association,
which agreed to assess, bill, and collect the Clubhouse Dues from the Homeowners
and pay the dues to CCLP (“the Clubhouse Dues Agreement”). CCLP completed
construction of the Clubhouse in June 2002, at which time the Clubhouse Dues
Agreement went into effect.
The Myers purchased a condominium unit in SMCC. The deed, recorded on 21
November 2006, specifically stated the unit was subject to the Declaration. Pursuant
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to the Declaration and upon purchase, the Myers became members of the Association
and were bound by the Clubhouse Dues Agreement.
On 13 January 2013, CCLP assigned to SMCC Clubhouse, LLC (“SMCC
Clubhouse”) all of its rights, duties and obligations under the Clubhouse Dues
Agreement, including its right to receive the Clubhouse Dues paid to the Association
by the Homeowners.
B. The Assessment
In 2014, the Association’s Board of Directors voted to discontinue its
assessment, billing and collection of Clubhouse Dues from the Homeowners for
payment to SMCC Clubhouse. As a result, SMCC Clubhouse filed suit against the
Association and alleged breach of the Clubhouse Dues Agreement. The case reached
this Court on appeal, which held the Clubhouse Dues Agreement was valid and
enforceable, reversed summary judgment in favor of the Association against SMCC
Clubhouse on this issue, and remanded for a jury trial. Conleys Creek Ltd. P’ship v.
Smoky Mountain Country Club Prop. Owners Ass’n, 255 N.C. App. 236, 805 S.E.2d
147 (2017).
On remand and following a jury trial, a judgment was entered on 31 May 2019
in the amount of $7,071,054.46 in favor of SMCC Clubhouse against the Association.
The trial court later entered an order to award attorney’s fees against the Association
in the amount of $772,488.30.
There were 163 lots in SMCC, including the Myers’ lot. The POA levied an
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assessment (“the Assessment”) against each of the 163 lots for $48,120.00
($7,071,054.46 plus $772,488.30, divided by 163).
C. The Bankruptcy and Confirmation Order
On 26 July 2019, the Association filed a Chapter 11 petition in the United
States Bankruptcy Court for the Western District of North Carolina. The Association
filed an Amended Plan of Reorganization (“the Plan”), which provided an installment
payment plan by which the Association would pay its court-ordered obligations to
SMCC Clubhouse. On 19 December 2019, the Bankruptcy Court entered an order to
confirm the Plan (“the Confirmation Order”).
Pursuant to the Plan, the Association agreed to assess, bill, and collect: (1)
unpaid delinquent Clubhouse Dues owing by the Homeowners as of 31 December
2019; (2) future Clubhouse Dues owing by the Homeowners under the Clubhouse
Dues Agreement that accrue from and after 1 January 2020; and, (3) $1,500,000 in
three annual installments of $500,000 from the 163 Homeowners, with each
Homeowner assessed $9,200 in three annual installments of $3,066.67. The
Homeowners’ installments were due on the first of January of 2020, 2021, and 2022.
The Association was required to pay all amounts collected from the Homeowners to
SMCC Clubhouse as payments on the 31 May 2019 judgment and subsequent order
awarding their attorney’s fees.
D. The Foreclosure Proceeding
The Myers refused to pay the assessment on their lot pursuant to the Plan and
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Confirmation Order. On 17 October 2022, the Association filed a claim of lien on the
Myers’ lot to secure all sums due to the Association through the date the claim of lien
was filed, as well as any sums due to the Association thereafter. On 17 April 2023,
the Association commenced this foreclosure proceeding to collect the Assessment in
the full, original pro-rated amount of $48,120.00.
On 21 July 2023, the Swain County Clerk of Superior Court entered an Order
Allowing Foreclosure Sale. The Myers appealed the Order to the Swain County
Superior Court and filed the following: (1) a motion for leave to amend their Answer
pursuant to Rule 15; (2) a motion to set aside the Clerk’s Order Allowing Foreclosure
Sale pursuant to Rule 60(b)(4); and, (3) a motion to dismiss the foreclosure proceeding
pursuant to Rules 12(b)(1) and (6).
On 8 March 2024, the Association filed a motion to expunge the Myers’ Answer
on the grounds the North Carolina Rules of Civil Procedure do not apply to the
foreclosure proceeding.
The Myers’ appeal from the Clerk’s Order Allowing Foreclosure Sale was
noticed for hearing on 11 March 2024. At that hearing, the Superior Court began by
hearing the Myers’ motions and the Association’s motion to expunge the Myers’
Answer. The court orally ordered the Answer and the Myers’ motions to be stricken
from the record. Immediately thereafter, the trial court, on its own motion, stayed
further proceedings in the foreclosure proceeding. No further proceedings in the
foreclosure proceeding were held.
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Ten months later, on 17 January 2025, the court entered a written order which
concluded the Association is not the owner of the debt because the Confirmation
Order assigned the debt to SMCC Clubhouse, and the Association did not have
standing to bring the foreclosure proceeding. The Association appealed from the
order dismissing the foreclosure proceeding in In re Myers (COA25-550), a companion
case, which we hear and decide contemporaneously with this appeal. In that case,
we hold the trial court erred by failing to conduct a de novo review on the Association’s
appeal from the foreclosure proceeding and vacate and remand the order dismissing
the foreclosure.
E. The Declaratory Judgment Action
On 10 February 2023, prior to the commencement of the foreclosure
proceeding, the Myers filed a complaint seeking a declaratory judgment of the relative
rights and obligations of the parties regarding the Clubhouse Dues and any
assessment arising out of the Clubhouse Dues. The Myers filed an amended
complaint on 8 March 2023. The complaint sets forth numerous allegations as to why
the Clubhouse Dues payment obligation is unenforceable. The Association answered
and filed counterclaims, including a counterclaim for judicial foreclosure of their lot
to collect the assessment for $48,120.00.
The Myers filed a motion for partial summary judgment on 14 June 2023, and
again on 24 January 2024, which sought summary judgment on their claim for
declaratory judgment. They argued, inter alia, the covenants concerning the
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Clubhouse Dues Agreement are unconscionable, void, and unenforceable.
The trial court conducted a hearing on 11 March 2024. The court did not decide
the matter on that date and entered a written order on 17 January 2025, over ten
months later. The court ordered: (1) “Pursuant to Chapter 47 and Chapter 55A, the
Clubhouse dues are not a valid fee when applied to the [Myers],” and (2) “[the Myers]
are not obligated to pay the Clubhouse Dues fees from the filing of this action on
February 10, 2023.”
II. Issues
The Association argues: (1) the trial court erred by granting summary
judgment in favor of the Myers where a genuine issue of material fact exists; and, (2)
the trial court lacked subject matter jurisdiction to enter the summary judgment
order granting declaratory judgment in favor of the Myers.
III. Appellate Jurisdiction
An order is interlocutory if it does not fully dispose of a case and “leaves it for
further action by the trial court in order to settle and determine the entire
controversy.” Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)
(citation omitted). “A grant of partial summary judgment, because it does not
completely dispose of the case, is an interlocutory order from which there is ordinarily
no right of appeal.” Curl v. American Multimedia, Inc., 187 N.C. App. 649, 652, 654
S.E.2d 76, 78-79 (2007) (citation omitted).
Unless the trial court has certified as immediately appealable pursuant to Rule
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54(b) of the Rules of Civil Procedure concluding there is no just reason to delay the
appeal, a party may only appeal from an interlocutory order when “the order deprives
the appellant of a substantial right that would be lost in the absence of an immediate
appeal.” Parmley v. Barrow, 253 N.C. App. 741, 746, 801 S.E.2d 386, 389-90 (2017)
(citation and quotation marks omitted).
We determine whether a substantial right is affected on a case-by-case basis,
and by considering the particular facts and procedural context of the case. Barnes v.
Kochhar, 178 N.C. App. 489, 497, 633 S.E.2d 474, 479 (2006). “A substantial right is
a legal right affecting or involving a matter of substance as distinguished from
matters of form: a right materially affecting those interests which [one] is entitled to
have preserved and protected by law: a material right.” Gilbert v. N.C. State Bar, 363
N.C. 70, 75, 678 S.E.2d 602, 605 (2009) (citation and quotation marks omitted).
Here, the summary judgment order removes the Association’s ability to assess,
bill, and collect Clubhouse Dues from the Homeowners in contravention of the
requirements of the Declaration, Clubhouse Dues Agreement, and the Plan and
Confirmation Order. The grant of partial summary judgment in this case affects the
substantial rights of the Association and this appeal is properly before us. Id.
IV. Standard of Review
Whether a trial court has subject matter jurisdiction is a question of law, also
reviewed de novo on appeal. McKoy v. McKoy, 202 N.C. App. 509, 511, 689 S.E.2d
590, 592 (2010).
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This Court also reviews an appeal from summary judgment on a declaratory
judgment claim de novo. Integon Nat’l Ins. Co. v. Helping Hands Specialized Transp.,
Inc., 233 N.C. App. 652, 654, 758 S.E.2d 27, 30 (2014).
“Summary judgment is a device whereby judgment is rendered if the pleadings,
depositions, interrogatories, and admissions on file, together with any affidavits,
show that there is no genuine issue as to any material fact and that any party is
entitled to judgment as a matter of law.” Dalton v. Camp, 353 N.C. 647, 650, 548
S.E.2d 704, 707 (2001) (citing N.C. Gen. Stat. § 1A-1, Rule 56(c)).
Under Rule 56, “[t]he moving party has the burden to show the lack of a triable
issue of fact and to show that he is entitled to judgment as a matter of law.” Ron
Medlin Constr. v. Harris, 364 N.C. 577, 580, 704 S.E.2d 486, 488 (2010) (citation and
internal quotation marks omitted). “[S]ummary judgment must be denied the party
with the burden of proof if his opponent submits affidavits and other supporting
materials which cast doubt upon the existence of a material fact, or if such doubts are
raised by the movant’s own materials[.]” Brooks v. Mount Airy Rainbow Farms Ctr.,
Inc., 48 N.C. App. 726, 729-30, 269 S.E.2d 704, 706 (1980).
“The trial judge must consider all the presented evidence in a light most
favorable to the nonmoving party, and all inferences of fact must be drawn against
the movant and in favor of the nonmovant.” DeWitt v. Eveready Battery Co., 355 N.C.
672, 682, 565 S.E.2d 140, 146 (2002) (citations, brackets, and internal quotation
marks omitted).
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V. Subject Matter Jurisdiction
A. Actual Controversy
The Association first argues the trial court did not have subject matter
jurisdiction to grant partial summary judgment because the Myers did not establish
the existence of an actual controversy regarding the enforceability of the Clubhouse
Dues Agreement.
The existence of an actual controversy is a jurisdictional prerequisite to an
action under the Declaratory Judgment Act. Gaston Bd. of Realtors, Inc. v. Harrison,
311 N.C. 230, 234, 316 S.E.2d 59, 61 (1984). Such controversy “must exist between
the interested parties both at the time of filing the complaint and the time of hearing
at which the matter comes before the trial court for a hearing.” Chapel H.O.M.
Assocs., LLC v. RME Mgmt., LLC, 256 N.C. App. 625, 629-30, 808 S.E.2d 576, 580
(2017) (citation omitted). “To satisfy the jurisdictional requirement of an actual
controversy, it must be shown in the complaint that litigation appears unavoidable.
Mere apprehension or the mere threat of an action or suit is not enough.” Wendell v.
Long, 107 N.C. App. 80, 82-83, 418 S.E.2d 825, 826 (1992) (citations omitted).
The Myers’ Amended Complaint alleges they “have received notice of
Association moving to file a claim of lien and foreclosure against [them] for failure to
pay the clubhouse dues and the special assessment arising from the clubhouse,” and
the Association is “moving to file a claim of lien and foreclose against [them] for
unpaid assessment under the Confirmation Plan and Declaration.”
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The Association asserts these are not factual allegations that “litigation
appears unavoidable” regarding whether the covenant to pay Clubhouse Dues is
enforceable. Given the facts, parties, and procedural history of this case, we disagree.
This case and its antecedents are no stranger to this Court. The underlying
dispute has come before the Court in some form or another at least ten times, and
this appeal has two companion appeals. The time, resources, and energy spent
arguing over the enforceability of these Clubhouse Dues in the trial, appellate,
federal, and business courts over the years is immense. To believe the Myers
complaint did not present an “actual controversy” that would not likely proceed to
litigation would be a delusion. See id. This argument is overruled.
B. Jurisdiction to Void or Nullify the Clubhouse Dues Agreement
Under the covenant to pay Clubhouse Dues in the Declaration, each Owner of
a lot is granted “a perpetual nonexclusive right to use the Clubhouse Use Facilities,”
which the Association asserts is an easement and interest in real property, for which
the payment of Clubhouse Dues is consideration. The Association argues the Myers’
request to void the covenant to pay Clubhouse Dues amounts to a request to void the
conveyance of the “perpetual nonexclusive right to use the Clubhouse Use Facilities.”
See A. Perin Dev. Co. v. Ty-Par Realty, Inc., 193 N.C. App. 450, 451-52, 667 S.E.2d
324, 326 (2008) (“[J]urisdiction does not exist under the [Declaratory Judgment] Act
for the purpose of declaring a conveyance void or nullifying a written instrument.”).
“The Declaratory Judgment Act, [N.C. Gen. Stat. §] 1-253 et seq., affords an
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appropriate procedure for alleviating uncertainty in the interpretation of written
instruments and for clarifying litigation.” Bellefonte Underwriters Insur. Co. v. Alfa
Aviation, 61 N.C. App. 544, 547, 300 S.E. 2d 877, 879 (1983) (citation omitted).
The Myers complaint sought declaratory judgment to determine, inter alia,
“the relative rights of the parties in regard to the Clubhouse Dues and any
assessment arising from the Clubhouse Dues.” The complaint sought the court’s
interpretation of a written instrument, a function within the scope of the trial court’s
authority under the Declaratory Judgment Act. See id. This argument is overruled.
C. Standing
The Association further argues the trial court did not have subject matter
jurisdiction, because the Myers did not have standing to seek declaratory judgment.
See Pugh v. Howard, 288 N.C. App. 576, 580, 887 S.E.2d 734, 739 (2023) (citation
omitted) (“If a party does not have standing to bring a claim, a court has no subject
matter jurisdiction to hear the claim.”). We disagree.
A declaratory judgment may be brought by “[a]ny person interested under a
deed, will, written contract or other writings constituting a contract, or whose rights,
status, or other legal relations are affected by a . . . contract . . . .” N.C. Gen. Stat. §
1-254 (2025). The Myers possess the requisite interest as property owners subject to
the challenged covenant and assessment obligations. This argument overruled.
VI. Existence of a Valid Debt
The Association argues the trial court erred by entering summary judgment
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on the declaratory judgment action in favor of the Myers where: (1) a genuine issue
of material fact existed as to whether the Myers agreed to be bound by the Clubhouse
Dues Agreement; (2) the Association is authorized under the Declaration and the
Planned Community Act to assess and collect Clubhouse Dues; and, (3) the covenant
to pay Clubhouse Dues is a real covenant that is enforceable against the properties
owned by the Myers and other owners. We agree with the Association on all of these
contentions and reverse the trial court’s order.
A. The Trial Court’s Order
No evidence was presented at the 11 March 2024 hearing. The trial court noted
it had reviewed the file, read the legal memoranda of the parties, considered
arguments of counsel made in open court, and took judicial notice of the numerous
related files in this matter. The trial court entered a written order over ten months
later on 17 January 2025.
In summary, the trial court concluded: (1) Pursuant to Chapter 47, the Planned
Community Act, and Chapter 55A, the North Carolina Nonprofit Corporation Act,
the Association cannot collect the Clubhouse Dues for the benefit of SMCC’s “profit”
or account; and, (2) the obligation to pay the Clubhouse Dues under the Declaration
is a personal covenant not a real covenant because it does not run with the land, and
is unenforceable against the Myers. Based upon these conclusions, the trial court
ordered:
1. Pursuant to Chapter 47 and Chapter 55A, the
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Clubhouse dues are not a valid fee when applied to [the Myers].
2. [The Myers] are not obligated to pay the Clubhouse Dues fees from the filing of this action on February 10, 2023.
B. Conley’s Creek
This Court has already addressed this issue in Conley’s Creek Ltd. P’ship v.
Smoky Mountain Country Club Prop. Owners Ass’n, 255 N.C. App. 236, 805 S.E.2d
147 (2017), an appeal that involved the same Declaration and Clubhouse Dues
Agreement the parties continue to dispute over. In Conley’s Creek, the Association
had prayed the trial court for (1) a declaration that “the Association has no duty under
the law to collect Clubhouse Dues from [Home]owners and that any such duty stated
in the Declaration is null and void[,]” and (2) the repayment of “all Clubhouse Dues
improperly collected and paid [to the Developer].” Id. at 246, 805 S.E.2d at 154. The
Association argued the Planned Community Act did not authorize it to collect dues
from the Homeowners to pay a third party for use of property that is not owned by or
part of the Planned Community. Id. The Clubhouse is located outside of the gates of
SMCC and is open to membership for individuals who are not SMCC property owners.
This Court held, “the 1999 Declaration specifically authorizes the Association
to assess its [Homeowners] for the Clubhouse Dues,” and “the [Planned Community]
Act does not proscribe the granting of this power to an association.” Id. The Court
further held, although the Clubhouse is not a “common element” of SMCC under the
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Planned Community Act, the Act “also empowers an association to assess dues for
‘services,’” including “the Developer’s role of providing access to and maintaining a
clubhouse amenity.” Id.
The trial court’s order states it took judicial notice of, inter alia, the file in case
number 14 CVS 238, which is the case that culminated in our Conley’s Creek decision.
Our Court has reviewed this matter and squarely established the Association is
within its authority, under the 1999 Declaration and the PCA, to assess, bill, and
collect the Clubhouse Dues from homeowners and pay the dues to CCLP, and later to
SMCC Clubhouse. See id.
C. The Myers’ Obligation
Because we have already decided the validity of the Clubhouse Dues
Agreement and payment arrangement, the only remaining question is whether the
Myers are subject to it.
Pursuant to the 1999 Declaration, the POA and Homeowners possess a
perpetual nonexclusive right to use the Clubhouse facilities. In consideration, each
property owner is required to pay Clubhouse Dues to the Association. The
Association is required to pay the collected Clubhouse Dues to the Developer. Under
the Declaration, the obligation of the Homeowners to pay Clubhouse Dues to the
Association “shall be absolute for the entire period of time that such Owner is an
Owner . . . and shall not be dependent on such Owner’s actual use of the [Clubhouse].”
The Declaration was in effect and binding when the Myers purchased their two
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properties in 2006 and 2008. Both deeds specifically state the Myers’ lots are
conveyed subject to the Declaration. Under our Conley’s Creek decision, the
Declaration, and pursuant to the deeds which conveyed their properties, the Myers
are clearly obligated to pay the Clubhouse Dues to the Association. The fact the
Clubhouse Dues are now due and payable pursuant to the Bankruptcy Court’s Plan
and Confirmation Order does not relieve them or any other property owner from their
obligations. See Conleys Creek, 255 N.C. App at 248, 805 S.E.2d at 155
(“[H]omeowners within a planned community are generally obligated . . . to pay any
dues which are assessed by their association.”)
VI. Conclusion
Upon purchasing their properties, the Myers agreed to be bound by the
Clubhouse Dues Agreement; the Association is authorized under the Declaration and
the Planned Community Act to assess and collect Clubhouse Dues; and the covenant
to pay Clubhouse Dues is a real covenant, enforceable against the properties owned
by the Myers and other owners. The trial court erred in granting partial summary
judgment in favor of the Myers.
We reverse the order of the trial court, and remand with instructions to enter
an order for the Association and SMCC Clubhouse as is consistent with this opinion
and our prior opinion in Conley’s Creek. On remand, the trial court shall determine
the monetary amount of the Clubhouse Dues outstanding and owed by the Myers to
the Association. It is so ordered.
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REVERSED AND REMANDED.
Judge COLLINS and Judge FREEMAN concurs.
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