226 N.C. App. 1
N.C. Ct. App.2013Background
- Moss Creek CC&Rs prohibit subdivision of lots without HOA written consent.
- Plaintiffs owned Lot 6 in 1993, later combined Lot 6 with part of Lot 8 and sold part to Defendants in 2005.
- 6 September 2005 agreement contemplated an easement if actions reflected in the Instrument of Combination and Exclusion Map were reversed and recorded.
- Moss Creek I litigation led to orders nullifying the Instrument of Combination/Exclusion Map and vesting title of Lot 8 in Defendants in 2008.
- Plaintiffs filed a 2011 complaint seeking an easement, later dismissed in 2012 for failure to state a claim; express-trust claims were pursued, with some claims abandoned.
- Trial court dismissed the complaint; appellate court affirmed, holding no valid express, constructive, or resulting trust existed and contract claim was time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Express trust claim timeliness and validity | Bissettes contend an express trust existed and claim not time-barred. | Richs argue no express trust exists; actions are contract-based and barred by statute. | Express trust claim barred; no trust created. |
| Constructive or resulting trust viability | Equitable factors support imposing a constructive or resulting trust on Tract II. | Allegations fail to show fraud or other grounds for a constructive/resulting trust. | No constructive or resulting trust imposed. |
| Accrual and timeliness of contract-based claim | Right to enforce rights under the 6 September 2005 agreement accrued later; not barred. | Rights under the agreement accrued by February 12, 2008; suit filed December 29, 2011 was outside the three-year period. | Contract claim time-barred; accrual in 2008, suit in 2011 untimely. |
Key Cases Cited
- Bland v. Branch Banking & Trust Co., 143 N.C. App. 282 (N.C. App. 2001) (trusts require transfer of property to create a valid express trust)
- In re Estate of Washburn, 158 N.C. App. 457 (N.C. App. 2003) (trusts; creation requires transfer of title and control)
- Taylor v. Addington, 222 N.C. 393 (N.C. 1942) (settlor must convey property to create a trust)
- Cury v. Mitchell, 202 N.C. App. 558 (N.C. App. 2001) (construction of constructive and resulting trusts; requires proper facts)
- Guy v. Guy, 104 N.C. App. 753 (N.C. App. 1991) (trusts; not all transfers create a constructive trust)
- Mims v. Mims, 305 N.C. 41 (N.C. 1982) (express/constructive trusts; evidentiary burdens and intent)