William Scherer v. Steel Creek Property Owner

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00121-MR-DLH Copies to all parties and the district court/agency. [1000051286].. [16-1485]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1485

WILLIAM R. SCHERER; ANNE SCHERER,
Plaintiffs - Appellants,
v.
STEEL CREEK PROPERTY OWNERS ASSOCIATION; PAUL IOOSS,
Defendants - Appellees,
and
STEPHEN IOOSS,
Defendant.

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)

Submitted:

February 7, 2017

Decided:

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
William R. Scherer and Anne Scherer appeal the decision of
the

district

court

in

this

diversity

action

claims pursuant to North Carolina law.

raising

various

The claims related to

property the Scherers purchased in the Steel Creek development
of

Transylvania

subject

to

compliance

County,

thirteen
with

North

Carolina.

protective

which

was

covenants

overseen

Owners Association (“the POA”).

The

by

property

(“the

Steel

was

Covenants”),

Creek

Property

As relevant here, the Covenants

established rules for new construction and for road maintenance
fees.
Based

on

interactions

with

the

POA

over

development

of

buildings and roads to be part of a horse farm the Scherers were
developing on their Steel Creek property and on disputes over
assessments

by

the

POA

for

the

Scherers’

lots,

the

Scherers

filed this suit against the POA and two of its officers. 1

The

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
fees.

Following discovery, the POA and the Scherers cross-moved

1

The Scherers do not challenge the district court’s
dismissal of the single claim against Paul Iooss—one of the
POA’s officers.
The other officer, Stephen Iooss, is not a
party to this appeal.

3

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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.

Accordingly, the

court awarded the Scherers a rebate of the overcharged interest.
The

court

denied

all

requests

for

declaratory

declined to enter a fee award for either side.

relief

and

The Scherers

timely appealed.
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.”

Smith v.

Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (internal quotation
marks omitted).

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).
The
practices

elements
under

of

the

a

claim

NCDCA

are

for
spread

unfair

debt

between

two

collection
statutes.

First, a plaintiff must establish (1) the existence of a debt,
(2) owed by a consumer, and (3) attempted to be collected by a
debt collector.

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
terms).

Second, a plaintiff “must satisfy the more generalized
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requirements of all unfair or deceptive trade practice claims,”
Reid, 531

S.E.2d

at

234,

namely,

“that

[(4)]

the

defendants

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
The

Scherers

sought

recovery

under

the

NCDCA

for

the

POA’s

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

2

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).
3

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.
(Continued)
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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
to

first

present

forecloses

our

claims

to

consideration

the
of

district

[such]

court

matters

generally

on

appeal.”

(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
marks omitted)).
As to their remaining NCDCA claim, the Scherers asserted
that

the

POA

assessments

incorrectly

were

past

stated

due

and

in
had

a

2013

accrued

letter

that

interest.

the
Even

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
We
decision

review
not

for
to

abuse

entertain

of
a

discretion

a

district

court’s

claim

declaratory

relief.

for

2008)
(defining
equitable
estoppel),
with
Shell
Island
Homeowners Ass’n, Inc. v. Tomlinson, 517 S.E.2d 406, 413 (N.C.
Ct. App. 1999) (defining quasi-estoppel).

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Ellis v.

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La.-Pac.

Corp.,

699

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F.3d

778,

788

(4th

Cir.

2012).

Declaratory relief may be granted only where there is an actual
controversy

under

Article

III

of

the

Constitution.

Volvo

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
the

parties

present

a

real,

substantial

controversy

between

parties having adverse legal interests, a dispute definite and
concrete, not hypothetical or abstract.”
Workers

Nat’l

Union,

442

U.S.

289,

298

Babbitt v. United Farm
(1979)

(ellipsis

and

internal quotation marks omitted).
The

Scherers

discretion

in

argue

declining

that
(1)

the
to

district

declare

court

that

the

abused
POA

its

cannot

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
the

“harmony

of

design”

provision

in

the

Covenants

to

be

arbitrary and unenforceable.
The district court found the first request moot because the
POA had conceded in its opposition to the Scherers’ motion for

4

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
their complaint.

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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.
arguments
claim.

below

concerning

the

The Scherers made no

continued

viability

of

this

For the first time on appeal, the Scherers argue that

the voluntary cessation exception to the mootness doctrine keeps
this

controversy

alive.

See

Friends

of

the

Earth,

Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000).

Inc.

v.

Because

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.

The Scherers

also failed to include their harmony of design claim in their
complaint.

See Wahi v. Charleston Area Med. Ctr., Inc., 562

F.3d 599, 617 (4th Cir. 2009) (“[A] plaintiff may not raise new
claims

after

complaint.”).

discovery

has

begun

without

amending

his

We therefore decline to review these claims on

appeal.
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
attorney’s

fees

to

either

side.

We

find

this

to

be

an

Accordingly, we affirm the order of the district court.

We

appropriate exercise of discretion.
IV. Conclusion

dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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