Henry G. Winters and Iris Winters, et al. v. Echo Farms, LLC

Filing 41

CONSENT JUDGMENT - Signed by Chief Judge James C. Dever III on 9/14/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
FILE NO. 7:17-CV-00002-D

HENRY G. WINTERS and IRIS L. WINTERS,
Trustees of the Henry G. Winters and Iris L.
Winters Revocable Living Trust Dated January
13, 2005; SCOTT A. HILLMAN and wife,
BETH ANN HILLMAN; ECHO FARMS
RESIDENTS ASSOCIATION, INC;
ELIZABETH C. VINAL; PHILIP CHRYST and
wife, DEANNE CHRYST; and KENNETH J.
WOLFE, JR. and wife, TILL S. WOLFE,

CONSENT JUDGMENT

Plaintiffs,
vs.
ECHO FARMS, LLC,
Defendant.
/

Pursuant to the Motion for, Entry of Consent Judgment filed herein, the parties to this
action have agreed to resolve the claims and counterclaims as set forth below. Therefore, with
the consent of the parties, the Court hereby makes the following findings of fact, conclusions of
law and orders and decrees as follows:

FINDINGS OF FACT
Procedural Status
1.

Plaintiffs instituted the instant action by filing a Summons and Complaint in

Superior Court in New Hanover County, North Carolina, File No. 16 CVS 4382 seeking the
enforcement of certain Restrictions (defined below).

2.
A~swer

Defendant (or "Echo Farms") removed the action to this Court and filed a timely

denying the allegations of the Complaint and asserting a Counterclaim requesting that

the Court declare the Restrictions (as defined below) invalid and unenforceable.
3.

Plaintiffs filed a timely Reply to Defendant's Counterclaim.

4.

Currently pending before the Court are Plaintiffs' Motion to Remand, Motion for

Preliminary Injunction and Motion to Dismiss.

The Property ·and .the Restrictions at Issue
5.

By deed dated April 9, 1973 and recorded on April 27, 1973 in Book 969, Page

285 ofthe New Hanover County Public Registry 1 (the "1973 Deed"), and subsequently corrected
by deed recorded on June 17, 1974 in Book 1007, Page 278, Echo Farms Joint Venture
(comprised of Echo Farm Development Corporation and Wilmington Homes, Inc.) conveyed
two tracts of land consisting of a total of approximately 117.28 acres to· Echo Farms Golf and
Country Club, Inc. ("the Echo Farms Deed", the "Property").
6.

At issue in this action are certain provisions in the 1973 Deed identified as

"restrictions, covenants and conditions" which provide, in part:
The Property shall be used for the purpose of operating and maintaining a
golf course and other necessary and related facilities for the benefit of
purchasers of lots from party of the first part [Echo Farms Joint Ventures],
their guests and others provided that said purchasers become and remain
members in good standing of said golf club and have met all membership
requirements therefor.
7.

The Echo Farms Deed also stated that the property conveyed was subject to

"certain conditions and restrictions in an Agreement between Echo Farms Joint Venture and

1 All

subsequent references to book and page are to the New Hanover County, North Carolina Public Registry.

2

Echo Farms Golf and Country Club, Inc. dated April 9, 1973, a copy of which is attached as
Exhibit A to the Echo Farms Deed ("the Agreement").
8.

The provisions in the Agreement denominated as "restrictions, covenants and

conditions" included a restatement of the provision set forth in paragraph 6 above.
9.

Collectively, all provisions denominated as restrictions, covenants and/or

conditions set forth in the Echo Farms Deed and the Agreement are hereafter referred to as "the
Restrictions".
10.

By virtue of the following mesne conveyances, Echo Farms acquired title to the

Property: (1) by deeds dated November l, 1984 and recorded on November 1, 1984 in Book
1270, Page 726 and in Book 1270, Page 732, EFG conveyed the Property to Suggs and
Harrelson, Inc.; (2) by deeds dated April 5, 1985 and recorded on April 5, 1985 in Book 1283,
Page 1660 and in Book 1283, Page 1666, Suggs and Harrelson, Inc. conveyed the Property to
Echo Recreational Facilities, Inc.; (3) by deed dated October 31, 1988 and recorded on
November I, 1988 in Book 1435, Page 984, Echo Recreational Facilities, Inc. conveyed the
Property (less and except certain portions of the property previously conveyed out) to New Echo
Farms, Inc.; (4) by deed dated January 26, 1998 and recorded on February 6, 1998 in Book 2307,
Page 467, New Echo Farms, Inc. conveyed the Property, as well as some additional adjacent
property, to defendant Echo Farms, LLC (the "Echo Farms, LLC Deed", the property conveyed
via the Echo Farms, LLC Deed, other than the Property, is hereafter referred to as the "Adjacent
Property").
11.

The Adjacent Property has never been subject to the Restrictions.

3

12.

In 1974, Echo Farms Development, Inc. recorded four subdivisions plats that

created 207 lots in the original Echo Farms subdivision - these plats were recorded Map Book
15, Page 34, Map Book 15, Page 35, Map Book 16, Page 12, and Map Book 16, Page 13
(the "Subdivision Plats"). There is no depiction of a golf course on the Subdivision Plats, nor is
there written indication of the existence of a golf course or reference to the Restrictions (or any
restrictions relating to a golf course). Each plat simply reflects: (1) a number of residential lots
with streets and (2) Echo Farms Development Company and Echo Farms Golf and Country
Club, Inc.'s ownership of land bordering the lots. The Subdivision Plats contain no labels or
designations of intent to dedicate any property to golf use or as an amenity for lot owners.
13.

At the time Echo Farms acquired the Property, a semi-private golf club was being

operated on same (meaning the golf club had some individuals to whom the term "member" was
applied, and who paid a monthly fee to play golf, but who had no exclusive right to use the
course that was open to the general public to use for a fee) (the "Golf Club", the "Golf Course").
Echo Farms has continued to operate the Go1fClub in this manner. ,
14.

Plaintiffs (with the exception of the Association, which does not own any real

property) own homes in the Echo Farms subdivision, near the Property. None of the Plaintiffs are
purchasers of lots from the Joint Venture. None of the Plaintiffs' vesting deeds or prior deeds in
their chains oftitle make reference to the Restrictions or the golf course.
15.

The Property is zoned as a "Multi-family Medium Density Residential District"

and, consistent with this zoning, Echo Farms intends to develop the Property for residential use.
16.

A dispute arose between the Parties with respect to Echo Farms' plan to develop

the Property and the enforceability, or lack thereof, of the Restrictions and as a result this action
was commenced.

4

17.

The Parties have reached an agreement to resolve the outstanding issues with

respect to the above-captioned action, the claims and counterclaims.

WHEREBY, with the consent of the parties, it is hereby ORDERED, ADWDGED,
DECREED and DECLARED as follows:
1.

The Restrictions constitute personal covenants, enforceable only between the

original covenanting parties (Echo Farms Joint Venture and Echo Farms Golf and Country Club,
Inc.), they do not run with the land and are not enforceable as to Echo Farms, LLC or its
successors in title to the Property (or the Adjacent Property).
2.

Further, Echo Farms' fee interest in the Property (and the Adjacent Property)

constitutes marketable record title which is free and clear of the Restrictions. Pursuant to North
Carolina General Statutes Chapter 47B (the "Marketable Title Act"), the Restrictions are null and
void as to the Property and Echo Farms' interest in same.
3.

Plaintiffs shall not contest or object to any future filings by Defendant to the City

of Wilmington Subdivision Review Board, Wilmington Planning Commission or to any other
approving agency(including but not limited to NCDOT, CFPUA) or make any further objections
to Defendant's plans with respect to the proposed development for the Property (and Adjacent
Property) known as or to be known as Woodlands at Echo Farms or make any objections based
upon any alleged restrictive covenant, except to the extent that such submissions contradict or
are inconsistent with the terms of this Consent Judgment. Defendant agrees that Woodlands at
Echo Farms shall be developed in substantial accordance with Exhibit A attached hereto and
incorporated by reference, subject to changes and/or revisions required by ariy agencies having
jurisdiction over the review, permitting and/or approval of the plans. Consistent with the attached

5

Exhibit A, in the event that Tract 5 is developed, it shall be developed as single family residential
or residential townhomes (in an amount not to exceed 50 residential units in total). Additionally,
Area 5A as depicted on Exhibit A hereto may be developed only with single family homes. In
the event that full access to Tract 5 is prohibited by the North Carolina

D<?pa~ent

of

Transportation off of Carolina Beach Road and/or McCarly Boulevard, access may be
constructed off of Appleton Way: (a) in the area marked as 5A, at an access point imi?egiately
across from RoadY as depicted on Exhibit A hereto, and/or (b) in the area marked as 5B, West
of Foxhall Court, as depicted on Exhibit A hereto.
4.

Except as set forth in the preceding paragraphs all claims asserted in the

Complaint are dismissed with prejudice.
5.

A copy of this Consent Judgment shall be recorded in the New Hanover County

Public Registry and indexed under the names of all parties to this action.

SO ORDERED. This 14-dayofSeptember2017.

S C. DEVER ill ·
Chief United States District Judge

J

6

CONSENTED TO:
Is/F. Murphy Averitt, III
F. Murphy Averitt, III
Attorney for Plaintiffs
N.C. State Bar No. 26426
14 S. 5111 Avenue
P.O. Drawer 2088
Wilmington, NC 28402-2088
Telephone: [phone]
Email: [e-mail]

Is/ Zinoorah B. Edwards
Zfpp-orab B. Edwards
Attorney for Defendant
N.C. State Bar No. 20838
2600 One Wells Fargo Center
301 South College St.
Charlotte, NC 28202
Telephone: [phone]
Email: zed [e-mail]

[Signatures of Parties to Follow]

7

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l-Ienry~Winters

Trustees ofthe Henry G. Winters and Tris L. Winters
Revocable Living Trust dated January 13, 2005

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Ins L. Winters
Trustees ofthe Henry G. Winters and Iris L. Winters
Revocable iving Trust dated January 13, 2005

ECHO FARMS RESIDENTS AS SOCIATTON, INC.

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ECHO FARMS, LLC

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