William Scherer v. Steel Creek Property Owner
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00121-MR-DLH Copies to all parties and the district court/agency. .. [16-1485]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM R. SCHERER; ANNE SCHERER,
Plaintiffs - Appellants,
STEEL CREEK PROPERTY OWNERS ASSOCIATION; PAUL IOOSS,
Defendants - Appellees,
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:13-cv-00121-MR-DLH)
February 7, 2017
March 29, 2017
Before NIEMEYER, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James M. Kimzey, Candace A. Mance, CONRAD & SCHERER, LLP,
Brevard, North Carolina, for Appellants. Jeffrey S. Bolster, J.
Wriley McKeown, BOLSTER ROGERS & MCKEOWN, LLP, Charlotte, North
Carolina; Paul E. Culpepper, YOUNG, MORPHIS, BACH & TAYLOR,
L.L.P., Hickory, North Carolina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit.
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William R. Scherer and Anne Scherer appeal the decision of
claims pursuant to North Carolina law.
The claims related to
property the Scherers purchased in the Steel Creek development
Owners Association (“the POA”).
As relevant here, the Covenants
established rules for new construction and for road maintenance
buildings and roads to be part of a horse farm the Scherers were
developing on their Steel Creek property and on disputes over
filed this suit against the POA and two of its officers. 1
complaint alleged, as relevant here, several violations of the
North Carolina Debt Collection Act, N.C. Gen. Stat. §§ 75-50 to
-56 (2015) (NCDCA), and sought declaratory relief and attorney’s
Following discovery, the POA and the Scherers cross-moved
The Scherers do not challenge the district court’s
dismissal of the single claim against Paul Iooss—one of the
The other officer, Stephen Iooss, is not a
party to this appeal.
for summary judgment.
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The district court found the retroactive
assessments imposed on the Scherers to be proper but held that
the POA had overstated the rate of interest.
court awarded the Scherers a rebate of the overcharged interest.
declined to enter a fee award for either side.
I. NCDCA Claims
We review a district court’s grant of summary judgment de
novo, “viewing all facts and reasonable inferences therefrom in
the light most favorable to the nonmoving party.”
Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (internal quotation
Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
First, a plaintiff must establish (1) the existence of a debt,
(2) owed by a consumer, and (3) attempted to be collected by a
Reid v. Ayers, 531 S.E.2d 231, 233 (N.C. Ct.
App. 2000); see N.C. Gen. Stat. § 75-50(1)-(3) (2015) (defining
Second, a plaintiff “must satisfy the more generalized
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requirements of all unfair or deceptive trade practice claims,”
committed an unfair or deceptive act or practice, or an unfair
method of competition, [(5)] in or affecting commerce, [(6)]
which proximately caused actual injury to the plaintiff or to
the plaintiff[’s] business,” Walker v. Sloan, 529 S.E.2d 236,
243 (N.C. Ct. App. 2000); see N.C. Gen. Stat. § 75-1.1 (2015). 2
allegedly illegal demands for retroactive assessments of road
maintenance fees and interest, improper threats of liens and
attorney’s fees, and harassing dunning letters.
Four of the
Scherers’ five NCDCA arguments are predicated on the contention
that the POA sought assessments to which it was not entitled.
Before the district court, the Scherers contended that equitable
estoppel and the doctrine of accord and satisfaction precluded
the POA from imposing retroactive assessments.
On appeal, the
Scherers make no mention of these arguments, instead claiming
that the POA cannot recover retroactive assessments based on the
doctrine of quasi-estoppel. 3
Because each of these arguments
With respect to the fourth element, nonexhaustive lists of
qualifying unfair or deceptive acts or practices are enumerated
in N.C. Gen. Stat. §§ 75-51 to -55 (2015).
These two types of estoppel have different elements and
are thus distinct claims.
Compare Countrywide Home Loans,
Inc. v. Bank One, N.A., 661 S.E.2d 259, 262-63 (N.C. Ct. App.
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either has been abandoned or is raised for the first time on
appeal, these four NCDCA claims necessarily fail.
See In re
Under Seal, 749 F.3d 276, 289-91 (4th Cir. 2014) (“[T]he failure
(internal quotation marks omitted)); Mayfield v. Nat’l Ass’n for
Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012)
(“A party’s failure to raise or discuss an issue in his brief is
to be deemed an abandonment of that issue.” (internal quotation
As to their remaining NCDCA claim, the Scherers asserted
assuming this to be true, such conduct does not fall within
§ 75-54(4)’s proscription on falsely representing the character
of a debt, in our view.
Thus, we conclude that the district
court properly dismissed this claim.
II. Declaratory Relief
Homeowners Ass’n, Inc. v. Tomlinson, 517 S.E.2d 406, 413 (N.C.
Ct. App. 1999) (defining quasi-estoppel).
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Declaratory relief may be granted only where there is an actual
Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 592
(4th Cir. 2004).
To determine whether an actual controversy
exists, courts look to “whether the conflicting contentions of
parties having adverse legal interests, a dispute definite and
concrete, not hypothetical or abstract.”
Babbitt v. United Farm
internal quotation marks omitted).
prevent their development of a horse farm, 4 (2) to define the
terms “improved” and “vacant” under the Covenants, as related to
the rate of fees due on each of their lots, and (3) to declare
arbitrary and unenforceable.
The district court found the first request moot because the
POA had conceded in its opposition to the Scherers’ motion for
The Scherers styled this request as a freestanding cause
of action for equitable estoppel.
However, the substance of
this claim clearly relates to the declaratory relief sought in
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summary judgment that it did not challenge the Scherers’ right
to build a horse farm on their property or oppose the plans
submitted and the development to date.
The Scherers made no
For the first time on appeal, the Scherers argue that
the voluntary cessation exception to the mootness doctrine keeps
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000).
this argument was not presented to the district court, it is not
properly before us.
See In re Under Seal, 749 F.3d at 290.
Similarly, the Scherers’ complaint did not ask the court to
define the terms “improved” and “vacant,” nor did the Scherers
seek this relief at the summary judgment stage.
also failed to include their harmony of design claim in their
See Wahi v. Charleston Area Med. Ctr., Inc., 562
F.3d 599, 617 (4th Cir. 2009) (“[A] plaintiff may not raise new
We therefore decline to review these claims on
III. Attorney’s Fees
We review fee award determinations for abuse of discretion.
Jones v. Southpeak Interactive Corp. of Delaware, 777 F.3d 658,
675 (4th Cir. 2015).
Noting that the POA was successful on most
of the Scherers’ claims, but that the Scherers prevailed on the
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calculation of interest, the district court declined to award
Accordingly, we affirm the order of the district court.
appropriate exercise of discretion.
this court and argument would not aid the decisional process.
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