Schroeder v. Oak Grove Farm Homeowners Ass'n

IN THE SUPREME COURT OF NORTH CAROLINA

No. 123PA24

Filed 22 August 2025

CRAIG SCHROEDER and MARY SCHROEDER

v.

THE OAK GROVE FARM HOMEOWNERS ASSOCIATION a/k/a THE OAK

GROVE FARM HOMEOWNERS ASSOCIATION, INC.

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 293 N.C. App. 428 (2024), reversing a judgment entered on

18 March 2022 and an order entered on 3 May 2022 by Judge Jonathan W. Perry in

Superior Court, Union County, and remanding the case. On 11 December 2024, the

Supreme Court allowed plaintiffs’ conditional petition for discretionary review as to

additional issues. Heard in the Supreme Court on 22 April 2025.

John F. Bloss and Margaret M. Chase for plaintiff-appellees.

Jeffrey B. Kuykendal and Colin E. Scott for defendant-appellant.

EARLS, Justice.

This case involves a dispute between the Schroeders and their homeowners

association over the applicability of a restrictive covenant. The Schroeders’ home is

subject to a declaration of restrictive covenants which, among other things, prohibits

keeping animals on their property, other than three or fewer horses, unless they are

household pets not used for a commercial purpose. The Schroeders maintained that

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the prohibition did not apply because their backyard chickens are household pets.

Their homeowners association disagreed that the chickens were their pets and asked

the Schroeders to remove the chickens from their property.

After a fair trial, the jury ultimately concluded that in all of the circumstances

of this case, the Schroeders’ chickens were not household pets. The jury’s verdict

reflected the “commonsense judgment of the community” as to the issues presented,

State v. Scott, 314 N.C. 309, 312 (1985) (quoting Taylor v. Louisiana, 419 U.S. 522,

530 (1975)), consistent with the “fundamental right to trial by jury in civil cases which

is guaranteed by our Constitution,” In re Will of Buck, 350 N.C. 621, 626 (1999). That

verdict was supported by “more than a scintilla of evidence,” and the trial court

correctly denied the Schroeders’ motion for judgment notwithstanding the verdict

(JNOV). See Vanguard Pai Lung, LLC v. Moody, 387 N.C. 376, 379 (2025) (quoting

Morris v. Scenera Rsch., LLC, 368 N.C. 857, 861 (2016)). We therefore reverse the

judgment of the Court of Appeals.

I. Background

A. Facts

The Oak Grove Farm subdivision is a planned community located in Union

County. In 1996, the developer recorded a “Declaration of Covenants Restrictions and

Easements” and created defendant Oak Grove Farm Homeowners Association

(Homeowners Association) to “preserve the values” of the community by, among other

things, enforcing the restrictive covenants. One of these covenants reads:

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13. LIVESTOCK. A maximum of three horses may be kept

and stabled on any lot or combination of adjoining lots

under common ownership. . . . No other animals, livestock,

or poultry of any kind, shall be raised, bred, or kept on any

lot, except that dogs, cats, or other household pets, may be

kept provided that they (including horses) are not kept,

bred, or maintained for any commercial purpose. No dog

kennels of any type shall be kept or maintained on the

property.

In 2017, plaintiffs Mary and Craig Schroeder purchased a home in the Oak

Grove Farm subdivision. Almost immediately after moving in, the Schroeders

purchased their first five chickens and kept them in a temporary coop located in their

garage. The Schroeders soon built a larger coop outside and added more chickens to

their flock. At its largest, the Schroeders’ flock included approximately sixty chickens

of various sizes and breeds.

On 11 March 2020, the Homeowners Association sent the Schroeders a letter

asking them to remove their chickens. The letter referenced the livestock provision

quoted above and indicated that failure to comply could result in fines. The

Schroeders provided a written response and appeared at a hearing before the

Homeowners Association’s Board of Directors where they argued that their flock of

chickens fell within the “household pets” exception. The Homeowners Association did

not agree, and it notified the Schroeders that they needed to remove their chickens

and that they would be fined $100 per day until they complied. The Schroeders then

initiated this lawsuit.

B. Procedural History

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In their complaint, the Schroeders requested a declaratory judgment that they

were not violating the restrictive covenant at issue, an injunction prohibiting the

collection of any fines and interference with the Schroeders’ use of their property, and

an award of money damages for the Homeowners Association’s alleged selective

enforcement of the restrictive covenant and breach of fiduciary duties. The

Homeowners Association filed an answer and counterclaim seeking a declaratory

judgment that the Schroeders were violating the restrictive covenant and seeking an

injunction ordering the Schroeders to comply with the restrictive covenant. Prior to

trial, the parties each moved for summary judgment, which the trial court denied

after concluding that there were disputed questions of fact that needed to be resolved

by a jury.

At trial, the Schroeders introduced a plethora of evidence tending to show that

they treated their chickens like any other well-loved household pet. Ms. Schroeder

testified that every chicken had a name, knew its name, and would come when its

name was called. The Schroeders introduced video exhibits of Ms. Schroeder playing

with the chickens. Ms. Schroeder testified that she spent “[o]ne and a half to two

hours at least a day” with the flock and that she formed personal relationships with

each chicken and paid close attention to their veterinary needs. The Schroeders

testified that they never ate any of their chickens and they did not sell their eggs.

Other witnesses generally agreed that Ms. Schroeder had an affectionate relationship

with her chickens.

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The Homeowners Association, however, also put on evidence. It focused

primarily on the number of chickens in the Schroeders’ flock—more than sixty

chickens at times—as evidence that the chickens were something other than simple

household pets. It also developed testimony on cross-examination that Mr. Schroeder

did not know the names of many of the chickens, even though he knew the names of

the family’s other pets. Furthermore, the Homeowners Association introduced

evidence that contradicted the Schroeders’ testimony that they never sold eggs; in a

Facebook post Ms. Schroeder wrote, “I sell farm fresh eggs.”

During the trial, each party moved for a directed verdict. The trial court denied

these motions. The parties also disputed the jury instructions. The Schroeders

proposed several nonpattern instructions concerning the presumption that

ambiguities in real covenants should be resolved in favor of the free use of land, a

series of instructions defining the term “household pets,” and an instruction on Rule

30(b)(6) depositions. See N.C.G.S. § 1A-1, Rule 30(b)(6) (2023). The Homeowners

Association objected to each of these proposed nonpattern instructions. The trial court

ultimately rejected the nonpattern instructions and framed the issues for the jury as

follows:

1. Were the chickens that were raised, bred, or kept on the

Plaintiffs’ property household pets?

2. Only to be reached if the answer to issue (1) is answered

in the affirmative: Were the plaintiffs’ chickens kept,

bred, or maintained for any commercial purpose?

At the conclusion of the trial, but prior to the jury returning a verdict, the

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parties reached an agreement whereby the Schroeders voluntarily dismissed their

claim for “selective enforcement/breach of fiduciary duties” with prejudice; each party

agreed to waive any right to pursue attorney’s fees; and the parties agreed that if the

jury returned a verdict in favor of the Homeowners Association, the Schroeders would

be liable for $31,500.

The jury returned a unanimous verdict in favor of the Homeowners

Association. It answered “no” to the first issue, indicating that it did not believe that

the Schroeders’ chickens were household pets. Consistent with the trial court’s

instructions, the jury did not answer the second issue. After the jury was dismissed,

the trial court denied the Schroeders’ motion for JNOV.

C. Decision of the Court of Appeals

The Schroeders appealed to the Court of Appeals and argued (1) that the trial

court should have granted their motion for a directed verdict and later for JNOV,

(2) that the trial court should have allowed their counsel to read excerpts from

caselaw to the jury during closing arguments, (3) that the trial court should have

adopted their proposed nonpattern jury instructions, and (4) that the trial court

should have admitted certain evidence of local ordinances defining the term “animal.”

The Court of Appeals addressed only the first issue and held that the trial court

should have granted the Schroeders’ motions for a directed verdict and for JNOV.

Schroeder v. Oak Grove Farm Homeowners Ass’n, 293 N.C. App. 428, 449 (2024). The

Court of Appeals first concluded that the restrictive covenants allowed the Schroeders

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to keep their chickens so long as they were treated as household pets and not used

for commercial purposes. Id. at 436. The Court of Appeals then held, even under the

demanding standard for JNOV, that the “evidence of the relationship between [the

Schroeders] and the chickens is not in dispute” and “there was not even a scintilla of

evidence that [the Schroeders’] chickens were not household pets or that [the

Schroeders] had any commercial purpose for keeping the chickens.” Id. at 442, 449.

Accordingly, the Court of Appeals concluded that the Schroeders were entitled to a

judgment in their favor as a matter of law. Id. at 449.

This Court allowed the Homeowners Association’s petition for discretionary

review as well as the Schroeders’ conditional petition for discretionary review of

additional issues on 11 December 2024.

II. Analysis

A. Standard of Review

We review a decision of the Court of Appeals for errors of law. N.C. R. App. P.

16(a). A trial court’s ruling on a motion for JNOV is reviewed de novo on appeal. Est.

of Savino v. Charlotte-Mecklenburg Hosp. Auth., 375 N.C. 288, 293 (2020). The

standard for granting JNOV “is quite demanding and the motion should be granted

cautiously and sparingly.” Vanguard Pai Lung, LLC, 387 N.C. at 379 (cleaned up). In

considering the motion, the court “must view all the evidence that supports the non-

movant’s claim as being true.” Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362,

369 (1985).

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Moreover, all “evidence must be considered in the light most favorable to the

non-movant, giving to the non-movant the benefit of every reasonable inference that

may legitimately be drawn from the evidence with contradictions, conflicts, and

inconsistencies being resolved in the non-movant’s favor.” Id. Thus, to survive a

motion for JNOV, the nonmovant need only point to “more than a scintilla of

evidence” that supports its claim—that is, anything “more than raw suspicion,

conjecture, guess, surmise, or speculation.” Vanguard Pai Lung, LLC, 387 N.C. at

379–80 (cleaned up). The standard of review for a motion for JNOV and a motion for

a directed verdict are identical. Keith v. Health-Pro Home Care Servs., Inc., 381 N.C.

442, 455 (2022).

Challenges to a trial court’s jury instructions are also reviewed de novo.

Chisum v. Campagna, 376 N.C. 680, 698–99 (2021). In evaluating the validity of a

party’s challenge to the trial court’s failure to deliver a particular jury instruction,

“we consider whether the instruction requested is correct as a statement of law and,

if so, whether the requested instruction is supported by the evidence.” Minor v. Minor,

366 N.C. 526, 531 (2013). Even if a trial court’s jury instructions are legally erroneous,

however, remand for a new trial is inappropriate unless it is shown that “a different

result would have likely ensued had the error not occurred.” Chappell v. N.C. Dep’t of

Transp., 374 N.C. 273, 282 (2020) (cleaned up).

A trial court is entrusted with “broad discretion to control the scope of closing

arguments” and we accordingly review for abuse of discretion. State v. Cummings,

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361 N.C. 438, 465 (2007); see also Watson v. White, 309 N.C. 498, 508 (1983). An

“abuse of discretion results where the court’s ruling is manifestly unsupported by

reason or is so arbitrary that it could not have been the result of a reasoned decision.”

Chappell, 374 N.C. at 280 (cleaned up).

Likewise, a trial court’s decision to exclude evidence under Rule 403 will only

be disturbed if the decision amounted to an abuse of the court’s discretion. State v.

Richardson, 385 N.C. 101, 147 (2023); see also N.C.G.S. § 8C-1, Rule 403 (2023).

Additionally, a decision to effectively exclude evidence is subject to harmless error

analysis. State v. Cotton, 329 N.C. 764, 767 (1991); N.C.G.S. § 1A-1, Rule 61 (2023).

B. Directed Verdict and Judgment Notwithstanding the Verdict

The trial court correctly denied the Schroeders’ motions for a directed verdict

and for JNOV because there was more than a scintilla of evidence that their chickens

were not household pets. The Court of Appeals committed legal error when it reversed

that judgment.

First, there was evidence that the Schroeders kept more than sixty chickens.

When asked on cross examination if she really believed that she could have “whatever

number you want as long as they’re your pets,” Ms. Schroeder was ambivalent

stating, “I don’t know how to answer that. I don’t know.” When asked if someone could

keep sixty cats as household pets, Ms. Schroeder testified, “If somebody wanted 60

cats, I don’t know. I don’t know.”

In any event, the Schroeders repeatedly testified that they had a close, loving

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relationship with “each” and “[e]very one” of their chickens. But the evidence also

showed that they spent “[o]ne and a half to two hours” each day with their chickens;

in other words, about two minutes per day per chicken.

The trial testimony also revealed that the Schroeders did not recall the names

of all of their chickens, or even the precise number of chickens they had. While Mr.

Schroeder could remember the names of the family’s pet horses, dogs, cats, and

geckos, he could not remember most of the chickens’ names. Even Ms. Schroeder

testified that she could not remember owning one particular rooster named “Elvis.”

And while the Schroeders offered explanations for why they did not know exactly how

many chickens were in their flock, the record reveals that when Ms. Schroeder was

directly asked to “be as clear as possible” about the number of chickens, she declined

to give an exact number and only testified that “[i]t’s possible” that there were

“approximately” sixty chickens.

When this evidence is viewed in the light most favorable to the Homeowners

Association, it permits the conclusion that the Schroeders did not, in fact, have a close

relationship with each individual chicken in the same way that most people form a

relationship with their dog, cat, or other household pet.

Second, there was conflicting evidence as to what the Schroeders did with the

eggs laid by their chickens. Ms. Schroeder testified that she “never sold eggs” because

her family “ate a lot of eggs so [she] didn’t really ever get many extras.” When pressed,

however, Ms. Schroeder confirmed that her husband “traveled a lot,” that she “was

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only eating one a day,” that her “daughter would only eat like one scrambled egg on

the weekend,” and that “by the end of the week” there would be “a couple dozen”

leftover eggs.

The Homeowners Association also introduced a Facebook post by Ms.

Schroeder that stated, “I sell farm fresh eggs but I often have extras.” When another

user commented, “Where do you sell fresh farm eggs?” Ms. Schroeder replied with her

location. In an attempt to reconcile this discrepancy, Ms. Schroeder testified that she

was merely “embellish[ing]” when she stated on Facebook that she sold eggs and told

a potential customer where they could buy them.

Ms. Schroeder is no doubt correct that she “wouldn’t be the first one to

embellish something on Facebook,” and the jury was certainly free to believe her and

refrain from drawing any negative inference about her character for truthfulness.

But the jurors, “the sole judges of the witnesses’ credibility,” were also free to go the

other way. Ward v. Carmona, 368 N.C. 35, 37–38 (2015). Given that an appellate

court’s role in reviewing a motion for JNOV is to resolve all discrepancies in the

nonmovant’s favor, this evidence so viewed would permit the jury to conclude that

Ms. Schroeder did sell eggs and that her testimony otherwise—indeed, her testimony

on any topic—was not credible.

Contrary to the holding of the Court of Appeals and the arguments of the

Schroeders, we are not persuaded that the trial court refused to interpret the

covenants as a matter of law. When charging the jury, the trial court did not simply

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ask them to decide if the Schroeders “violated the covenants”—even though the

Homeowners Association explicitly requested this framing of the issue. Instead, the

trial court correctly tasked the jury with resolving the two relevant disputed

questions of fact: were the chickens household pets, and were the chickens kept, bred

or maintained for a commercial purpose. The trial court arrived at this framing of the

issues precisely because it construed the language of the covenants as a matter of law

and recognized that they potentially permit keeping chickens via the household pets

exception, notwithstanding the language purporting to ban keeping “poultry of any

kind.” This also appears to be why the trial court denied the Homeowners

Association’s motion for summary judgment and its motion for a directed verdict.

The trial court’s interpretation appropriately construes the language of the

restrictive covenants “in favor of the free use of land” without “contradict[ing] the

plain and obvious purpose of the contracting parties.” Armstrong v. Ledges

Homeowners Ass’n, 360 N.C. 547, 555 (2006) (emphasis omitted). Specifically, this

construction correctly establishes that the language purporting to ban all “animals,

livestock, or poultry of any kind” is limited by the broad exception for “household pets”

that are not “kept, bred, or maintained for any commercial purpose.” At the same

time, the trial court’s reading of the restrictive covenants properly recognizes that the

drafters intended to impose some limits on the animals that homeowners could keep

on their land and avoids contradicting this “plain and obvious purpose.” See id.

In sum, the jury was properly asked to sort through the competing evidence

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introduced at trial to determine whether the chickens were household pets or not.

There was more than a mere “scintilla” of evidence that the chickens were not

household pets. See Vanguard Pai Lung, LLC, 387 N.C. at 379 (cleaned up). The

Court of Appeals erred when it reached the opposite conclusion, and we reverse its

judgment.

C. The Jury Instructions

Next, the Schroeders argue that the trial court erred by declining to provide

several nonpattern jury instructions. This argument is without merit.

The Schroeders’ ten requested nonpattern jury instructions fall into three

categories: the first four are statements of law concerning the interpretation of

restrictive covenants. The next five are recitations and interpretations of dictionary

definitions of the words “poultry,” “pet,” and “household.” The last instruction

concerns Rule 30(b)(6) depositions.

First, the trial court correctly declined to instruct the jury on how to interpret

restrictive covenants because the jury was not being asked to interpret any restrictive

covenants. As discussed above, the trial court interpreted the restrictive covenants

as a matter of law and then asked the jury to decide two fact issues: whether the

chickens were household pets, and whether the chickens were used for a commercial

purpose. To resolve those issues, the jury did not need to know anything about how

North Carolina courts interpret ambiguities in restrictive covenants generally, and

such an instruction would have likely confused the jury. It was proper to reject these

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requested jury instructions. See Muse v. Seaboard Air Line Ry. Co., 149 N.C. 443, 452

(1908) (“It is well settled, that when the charge given presents every phase of the

controversy, with correct instructions as to the law, a new trial will not be awarded

for failure to give instructions asked, although they may involve correct propositions

of law.”).

Next, it was not error to refuse to instruct the jury on how a certain dictionary

defined the terms “poultry,” “pet,” and “household.” Here, the phrase “household pet”

is undefined in the restrictive covenants, and the trial court correctly held that the

phrase must be accorded its ordinary meaning. A trial court is not required to read

the jurors dictionary definitions of common, ordinary words because “a jury is

presumed to have understood the plain English contained in the trial court’s

instruction.” State v. Weeks, 322 N.C. 152, 175 (1988) (cleaned up) (holding it was not

error for the trial court to refuse to define the word “satisfaction” for the jury); see

also State v. Franks, 300 N.C. 1, 17–18 (1980). In any event, the trial court permitted

counsel to read the proffered dictionary definitions to the jurors during closing

arguments, undermining any claim that the jurors were “left without any guidance”

on this issue.

Finally, it is not clear from the record why the nonpattern instruction on Rule

30(b)(6) depositions was requested. This issue was abandoned in the briefs and we

decline to analyze it. N.C. R. App. P. 28(a) (“Issues not presented and discussed in a

party’s brief are deemed abandoned.”).

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D. Closing Arguments

Next, the Schroeders argue that the trial court erred when it refused to allow

their counsel to read excerpts from Steiner v. Windrow Estates Home Owners

Association, 213 N.C. App. 454 (2011), and from Russell v. Donaldson, 222 N.C. App.

702 (2012) to the jury in closing arguments. However, the trial court’s decision was

appropriate. It is well settled that “counsel may not read the facts contained in a

published opinion together with the result to imply that the jury in his case should

return a favorable verdict for his client.” State v. Gardner, 316 N.C. 605, 611 (1986).

Here, many of the passages from Steiner that counsel sought to read were entirely

comprised of the facts of that case. The trial court correctly denied counsel’s request

to read these facts to the jury. See id.

Moreover, counsel may only read statements of law “which are relevant to the

issues before the jury.” Id. For the reasons explained above, the jury was not asked

to interpret any restrictive covenant. Accordingly, the excerpts from Steiner and

Russell that deal with North Carolina law’s presumption in favor of the free use of

land when interpreting restrictive covenants were not relevant to the actual issues

put before the jury. The trial court correctly denied counsel’s request to read these

quotes to the jury. See id.

Finally, as to the dictionary definitions of common words such as “pet” and

“household” that were quoted in the Steiner opinion, the trial court allowed counsel

to read those definitions to the jury. During the charge conference, the trial court

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wisely explained:

THE COURT: . . . [T]o stand up and say well North

Carolina case law or the Steiner case or General Statute X,

Y and Z says this, that would not be appropriate, again

given Steiner. But I think any reference to a dictionary, so

in the closing arguments you could say for example

[Merriam]-Webster’s definition of poultry is such and such

or Britannica’s definition of poultry is such and such. I

think that would be appropriate. Again what I’m trying to

do is make sure there’s no citations to legal sources of

authority given Steiner’s instruction that it should be

based on the ordinary meaning of the words.

The jury was required to decide the issues based on their own understanding

of the ordinary meaning of those words and did so here. It was not error to prohibit

counsel from suggesting that a particular dictionary definition of the term “pet” or

“household” carried the force of law. Cf. Weeks, 322 N.C. at 175 (concluding that it is

not error to refuse to define common, ordinary words in jury instruction). We will not

disturb the jury’s verdict on these grounds.

E. Exclusion of Evidence

The Schroeders’ final argument is that the trial court erroneously excluded

evidence at trial. Specifically, a different clause in the restrictive covenants titled

“Pets” requires homeowners to keep any “animal as defined by the Union County

Animal Control Ordinance” fenced in or otherwise on a leash. The Schroeders wanted

to introduce the text of that Union County Animal Control Ordinance, which defines

“animal” as “any live, vertebrate creature, wild or domestic, other than human beings,

endowed with the power of voluntary motion.”

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It appears that the Schroeders wanted to use this evidence because they feared

that the jurors might believe that chickens could never be household pets, under any

circumstances. To combat that risk, their plan was to argue that the restrictive

covenants had incorporated the Union County Animal Control Ordinance’s definition

of “animal” as its own internal definition of the word “pet”—in other words, that the

“household pets” exception definitively covered “any live, vertebrate creature, wild or

domestic, other than human beings, endowed with the power of voluntary motion.”

This trial strategy, even if well intentioned, is fundamentally misleading, and

the trial court correctly sustained the Homeowners Association’s objection. The

specific provision in the restrictive covenants at issue in this case is not the “pets”

provision but the “livestock” provision. That provision prohibits “animals, livestock,

or poultry of any kind” except for “household pets” not used for any commercial

purpose. The phrase “household pets” is, all parties agree, not defined anywhere in

the restrictive covenants. Accordingly, it would have misled the jury if the Schroeders

had been permitted to argue that the term “household pets” was defined in the

covenants when, in reality, it was not. The trial court did not abuse its discretion

when it excluded this evidence.

Finally, we note that there is no reason to believe that the jury was misled by

the exclusion of this evidence. Counsel was permitted to argue in closing that the

ordinary meaning of the term “household pets” included chickens and was even

allowed to quote directly from the dictionary for support. Moreover, the jurors were

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specifically asked to decide whether these chickens were household pets. The very

exercise of asking the question communicated that the answer was uncertain and

that the jurors were free to decide that the Schroeders’ chickens were their household

pets. The fact that they returned a verdict for the Homeowners Association does not

mean that they were misled.

III. Conclusion

The Schroeders received a fair trial free from prejudicial error. They were not

entitled to a directed verdict or JNOV because there was more than a scintilla of

evidence that their chickens were not household pets. This was an issue of fact for

the jury to decide based on the ordinary meaning of the words in the restrictive

covenants. We reverse the judgment of the Court of Appeals.

REVERSED.

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Riggs, J., dissenting

Justice RIGGS dissenting.

If this case boiled down to a question as simple as, “Is a chicken a pet?,” then

my disagreements with the majority might collapse.1 Instead, this case represents a

significant development in the law applicable to a specific species of contracts—

community interest covenants (CIC) or restrictive covenants. Furthermore, the

majority gives insufficient weight to the longstanding rule that “covenants are strictly

construed in favor of the free use of land whenever strict construction does not

contradict the plain and obvious purpose of the contracting parties.” Armstrong v.

Ledges Homeowners Ass’n, 360 N.C. 547, 555 (2006); see also, Long v. Branham, 271

N.C. 264, 268 (1967) (“Covenants and agreements restricting the free use of property

are strictly construed against limitations upon such use. Such restrictions will not be

aided or extended by implication or enlarged by construction to affect lands not

specifically described, or to grant rights to persons in whose favor it is not clearly

shown such restrictions are to apply. Doubt will be resolved in favor of the

unrestricted use of property, so that where the language of a restrictive covenant is

capable of two constructions, the one that limits, rather than the one which extends

1 And comedians might have as much fun with this case as they have had posing the

question, “Is a hotdog a sandwich?” to United States Supreme Court justices. The Late Show

with Stephen Colbert, Stephen Works Out With Ruth Bader Ginsburg, at 2:40 (Youtube,

streamed Mar. 21, 2018), https://www.youtube.com/watch?v=0oBodJHX1Vg; The Late Show

with Stephen Colbert, Justice Sonia Sotomayor Allows Stephen to Approach the Bench, at

7:23 (Youtube, streamed Nov. 17, 2018), https://www.youtube.com/watch?v=KAd4HxJekH4.

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it, should be adopted, and that construction should be embraced which least restricts

the free use of the land.” (cleaned up)).

While the law in this area is still developing, the Court of Appeals firmly adopts

the reasoning of a line of cases that hold that ambiguous contract terms are questions

of law for the court, not a jury. Schroeder v. Oak Grove Farm Homeowners Ass’n, 293

N.C. App. 428, 432 (2024); see also Erthal v. May, 223 N.C. App. 373, 378 (2012);

Coletrane v. Lamb, 42 N.C. App. 654, 657 (1979). I do not think that, in the context

of restrictive covenants, the rule is that simple, and I disagree with the Court of

Appeals on that front. In the context of restrictive covenants, in order to reconcile

the command that any ambiguities be resolved in favor of the free use of land with

the duty of the jury to decide issues of fact, our trial courts have a greater

responsibility to identify whether ambiguities exist and then if that ambiguity cannot

be resolved as a matter of law, define with some precision the factual disputes that

give rise to the ambiguity. It seems clear here that the trial court did believe that

some ambiguity existed in the term “household pets,” but the specific factual dispute

the jury needed to resolve is not clear from the jury instructions.

For example, it seems clear that there was a factual dispute about the

relevance of the difference between Mr. Schroeder’s and Ms. Schroeder’s feelings

toward the chickens. Both the Schroeders’ names are on the property deed and were

listed on the compliance documentation from the homeowner’s association (HOA).

But the restrictive covenant’s reference to household pets does not specify who in the

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household must consider the animal a pet in order for the pet to be allowable. It is

possible that the intention of the original drafter of the HOA agreement was that

every member of the household must consider the animal to be a pet. If that is true,

I will grant that a scintilla of evidence was provided that Mr. Schroeder did not

consider all of the chickens to be pets. But the drafters of the HOA covenant were

not specific on this front, and as such, the ambiguity must, as a matter of law, be

construed in favor of the free use of land. As such, I would conclude that as a matter

of law, only one homeowner needs to consider the animal a pet for the purposes of

this inquiry. Because the jury instructions did not so clarify the actual factual

question to be answered, I cannot assume that the jury did not consider the differing

relationships the two separate homeowners had with the chickens. Put another way,

if the jury decided that the chickens were Ms. Schroeder’s pets but not Mr.

Schroeder’s pets, then it could have still answered the first question the way that it

did: no.

This is not an inconsequential technicality. The disparity of power between

HOAs drafting original restrictive covenants and homeowners who have no choice

but to accept the HOA’s restrictive covenants if they wish to purchase their desired

home is a disparity that affects many North Carolinians. The number of North

Carolinian homeowners who reside in communities governed by a restrictive

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Riggs, J., dissenting

covenant is on the rise.2 Just as banks and other institutions of power hold

disproportionate power in establishing the terms of a contract, Taylor v. Bank of Am.,

N.A., 385 N.C. 783, 794–95 (2024) (Riggs, J., dissenting), so too here is there a

disparity in power when it comes to contract drafting that should, at the very least,

push us to hold the party with all the drafting power to the obligation of drafting the

contracts with precision.

In failing to identify for the jury the factual dispute that gives rise to the

ambiguity in the language of the restrictive covenant, the judge invited the jury to

consider evidence of little or limited relevance outside of any meaningful framework.

It is undisputed, obviously, that the Schroeders may have had nearly sixty chickens

at some point during the period in controversy. But what relevance does the number

have in deciding whether, for purposes of the restrictive covenant, the chickens were

pets? Take, for example, an animal in which there is probably more consensus that

the animal is a household pet: a dog. I suspect that the Court would unanimously

agree that a dog is a household pet, as a general proposition, if not for the purposes

of this specific restrictive covenant. If a homeowner had sixty dogs, hoarding statutes

and ordinances aside, are the dogs no longer household pets because there are sixty

of them? If the number of dogs is relevant, how so? Can ten of those dogs be

2 Currently over a quarter of the state’s population resides in a community with an

HOA. Gord Collins, North Carolina Community Associations and HOAs, ManageCasa (July

17, 2024), https://managecasa.com/articles/north-carolina-community-associations-and-

hoas#:~:text=Community%20Associations%20in%20the%20State.%20About%202.756,New

%20York%2C%20according%20to%20stats%20from%20Caionline.org.

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considered household pets and the rest be considered something other than household

pets? In answering the question posed to it, was the jury in this case being asked

(and did it decide) that all the chickens were not pets? Or did the jury have the option

of deciding that some of the chickens were pets, perhaps the ones who Ms. Schroeder

cuddled with, watched TV with, and took on vacation? I do not profess to know the

answer to that question,3 but because I do not, the Court should remand to the trial

court for further proceedings to clarify this.

To be clear, I do not fully embrace the Court of Appeals’ opinion. I do not fully

embrace the logic of Erthal, that in all cases, interpretation of ambiguous terms of a

restrictive covenant is a question of law and should not be decided by a jury. 223 N.C.

App. 373, 378 (2012). I also do not think we should adopt one universal definition of

what is a “household pet,” resolving once and for all whether chickens qualify.4 What

I am arguing is two-fold: (1) that we should not inch away from the conclusion that

3 And it seems clear that to at least some members of the Court, the number of

chickens mattered. Schroeder v. Oak Grove Farm Homeowners Ass’n, (No. 123PA24) (Apr.

22, 2025), https://www.youtube.com/watch?v=mB3zii8aEHc (last visited Aug. 18, 2025).

4 In my mind, this resolves the question of whether enough evidence exists to support

a judgment for defendant, with even the most favorable instruction to the jury and in a light

most favorable to the non-moving party. See Bryant v. Nationwide Mut. Fire Ins. Co., 313

N.C. 362, 369 (1985). Because the jury instructions did not identify the specific factual

disputes for the jury’s resolution, we cannot be sure that there was sufficient evidence for a

reasonable jury to reach the conclusion that this jury reached. See Chisum v. Campagna,

376 N.C. 680, 710 (2021) (recognizing that this Court has held “jury verdicts to be fatally

ambiguous in the event that the verdict sheet or the underlying instructions were vague,

making it unclear precisely what the jury intended by its verdict”). We cannot be sure how

much weight the jury gave to factual disputes, such as whose personal attachments to the

animals mattered or what was the proper significance to attach to the number of the animals,

or whether the Schroeders considered each chicken a pet. As such, we should remand the

case for a new trial with more precise jury instructions.

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Riggs, J., dissenting

ambiguities in restrictive covenants should be resolved in favor of the free use of land,

and we should hold the drafters of restrictive covenants (here, the HOA) who hold the

power of the pen to its burden to draft precise contract terms; and (2) that we should

not absolve trial courts of the obligation to narrow questions of law before sending

questions of fact to a jury. We ask too much of our juries if we do not give them the

benefit of judicial experience when it comes to resolving the questions of law.

Less central to the arguments above, but still relevant, is the question of

whether the trial court erred by excluding the Union County ordinance that the

Schroeders attempted to enter into evidence. The covenant defined “pets” as

“animal[s] . . . defined by the Union County Animal Control Ordinance.” The

covenant, of course, also reads that “[n]o other animals, livestock, or poultry of any

kind, shall be raised, bred, or kept on any lot, except that dogs, cats, or other

household pets, may be kept provided that they (including horses) are not kept, bred,

or maintained for any commercial purpose.” Even though our caselaw says that in

determining the meaning of a restrictive covenant, the “applicable rules of

interpretation require that the meaning of the contract be gathered from a study and

a consideration of all the covenants contained in the instrument and not from

detached portions,” Callaham v. Arenson, 239 N.C. 619, 625 (1954), the trial judge

would not allow the Schroeders to introduce the Union County Animal Control

Ordinance’s definition of “animal”: “[A]ny live, vertebrate creature, wild or domestic,

other than human beings, endowed with the power of voluntary motion.” Because

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the ordinance was incorporated by reference and used to define a term that is

material to the restrictive covenant, I believe it was error to exclude the ordinance

from evidence as part of the contract itself. See Singleton v. Haywood Elec.

Membership Corp., 357 N.C. 623, 629 (2003) (“[W]here a contract defines a term, that

definition is to be used.” (cleaned up)).

Finally, to the extent that Ms. Schroeder ever sold the eggs produced by her

chickens, based upon her Facebook posts, this is a question related solely to the

second question posed to the jury: whether or not the chickens, if pets, were used for

commercial purposes. Because the jury declined to reach the second question, this

disputed fact seems irrelevant.

For the reasons above, I respectfully dissent. I would vacate the Court of

Appeals’ judgment and remand to the trial court for a new trial with jury instructions

that provide guidance for the factual dispute the jury must resolve.

Justice DIETZ joins in this dissenting opinion.

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