*1 441 THE OF APPEALS COURT CATER v. BARKER [172 App. (2005)] (now Plaintiffs v. CATHERINE BARKER
DIANNE CATER and LYNNE O'CONNOR, McKeon), Defendant No. COA04-795 (Filed August 2005) agreement— escrow 1. Vendor and Purchaser— real estate repairs in that defendant
Language an real estate escrow repairs building meant that sum- would “cause” to be made to mary correctly plaintiffs on an action judgment was awarded to completed, though even damages when the were not agreed defendant offered an affidavit that she had authorized its Reading language for the work. the escrow ordi- nary fully complete repairs rather meaning, defendant must merely pay than for them. applicable damages
2. Laches— —defense applicable in The defense of laches was not to an action complete repairs failing to to a damages were awarded for agreement. escrow building under an part dissenting part.
Judge concurring Geer Appeal by judgment defendant from entered 18 March County Superior Guice, Jr., in Macon Court. Heard Judge Zoro J. February Appeals the Court
Ronald, Stephen Patterson, plaintiffs-appellees.
Creighton Sossomon, defendant-appellant. W.
TYSON,Judge. McKeon) (“defendant”) appeals from the (now
Catherine Barker Lynne granting Dianne Cater and O’Connor trial court’s claim for (collectively, “plaintiffs”) judgment on their of contract. We affirm. breach Background
I. property on purchased residential real from defendant closing, County, North Carolina. Prior to 21 November 2000 in Macon the home. These were began making defendant par- incomplete closing. at the time of the begun either or had not IN THE OF APPEALS COURT *2 Repairs” Agreement (“the into an “Escrow to Make ties entered provided entirety: Agreement”) that in its conveyed being BARKERas Seller of the lands CATHERINE CATER, DIANE LYNNE KATHLEEN date to O’CONNORand C. Buyers, Buyers’ O’CONNOR, agreeing in consideration of to com- plete subject closing agreement, to this rather than wait for by repairs completed being Seller on the sold certain be house hereby promises Buyers agrees, covenants and as follows: expense repairs
1. Seller at her shall cause the listed on house, already A some Exhibit to be made to the of which have been started. portion
2. footing The foundation for that of the house that poured ground has been formed and onto the and tree over stumps repaired replaced expense shall be and/or at Seller’s so that the foundation for the entire house meets standards Building good North Carolina Code and residential construction standards. $4,000.00 $200.00 The sum of for the foundation work and repairs by Spivey
for the other Philo, shall be escrowed & Henning, closing proceeds P.A. at from Seller’s net sales applied expenses. expenses repairs to these If the of the exceeds being escrowed, the sum Seller shall and all addi- tional costs.
The record on A Agreement. does include Exhibit to the parties specified have not what additional other than subject Agreement. Despite the foundation were to the being incomplete, plaintiffs Agreement agreed relied on the and property. close on the January 2003, plaintiffs complaint
On 13 filed a verified alleging by failing complete defendant had breached the repairs. parties Defendant answered and admitted the entered into Agreement, but denied she failed to accordance with the terms of the Defendant also asserted performance the affirmative defenses of of the contract and laches. summary judgment Plaintiffs moved the trial court for on 28 January by 2004.Attached to were their motion sworn affidavits both Plaintiffs’ (“Mr. Bates”). and Mr. Don Bates affidavits both they by generally “damaged stated have been breach of IN THE COURT OF APPEALS v. BARKER CATER $14,500.00in repair by sought and dam- Defendant” $2,900.00 attorney’s fees costs. ages and affidavit, Mr. Bates’s stated: he had worked the residential industry twenty-eight years; (2) he homebuilding and construction personal knowledge repair sought work the Plaintiffs had “of the above-captioned action;” in the would cost $14,500.00in labor materials. January 2004, judg- On 30 defendant filed motion exist she entitled to alleging ment no issues of material fact affidavit, judgment as a matter of law. She attached her own pertinent part: stated in *3 2000, following 9, a closing,
6. That on or about December by report qualified engineer my had from a civil been obtained necessary broker, Larry Davis, regarding work to real estate the Copy repair the in the Escrow foundation mentioned report of is as Exhibit “2.” attached Larry receipt report, Mr. Davis Following 7. Of this perform necessary an to work from obtained estimate Shayne $5,500.00. At time Boatwright the amount of of early 2001, Boatwright Mr. estimate, in late 2000 or or [sic] spring of during was able to the work 2001 as or know, far as I no action was undertaken their any attorney at time to authorized work [sic] year required during the 2001.1 for the work did refuse any fact, Mr. to be done at time and authorized Davis have performed. the work transpire has regarding
I have what no further information [d] except copy letter regard to this escrow account of [sic] my attorney. May 29, from This letter is received on or about 2002 copy of a letter from attached as Exhibit “3” and includes then-attorney, monies outlin- Plaintiff’s the holder escrow placed fact into escrow had been ing the that some of the monies namely proper $200.00 expended, was other $475.00 engineering for the under the Escrow 9, December report attached hereinabove dated damages plaintiffs’ motion awarded granted The trial court attorney’s ap- $14,500.00, plus fees. Defendant in the amount of solely grant for sum- peals the trial court’s of motion mary judgment.
444 THE COURT OF APPEALS 441
II. Issues properly issues on are whether the trial court granted plaintiffs summary judgment plaintiffs’ claim; on: of the merits of defendant’s defense laches.
III. Standard of Review Our review of a court’s grant judgment trial well- is Summary judgment appropriate established. pleadings, “if the depositions, to interrogatories, file, answers and admissions on together affidavits, any, with the if show that there is no issue any as any party material and that judgment fact is entitled to a as 1A-1, matter of law.” Gen. Stat. 56(c) (2003); § Rule also see Roberts, App. 311, Oliver v. 314, 399, 49 N.C. 271 S.E.2d (1980), denied, - N.C. -, cert. (1981). S.E.2d 283 “ deciding motion, ‘all . . . inferences fact must against drawn party the movant and in favor of the opposing ” Deese, 375, 378, motion.’ 379, Caldwell v. 288 N.C. S.E.2d (1975) (quoting 56-15[3], § 6 Moore’sFederal ed. (2d Practice 1971);accord, Inc., Diebald, United States v. 369 U.S. 8 L. Ed. 2d (1968)). party moving
“The has the burden of establishing Collingwood lack triable issue.” v. G.E. Real Equities, Estate (citing 427 (1989) *4 Caldwell, 375, 379). party 288 N.C. 218 S.E.2d the moving Once meets burden, party “produce its then non-moving must a forecast of demonstrating plaintiff evidence that the will be able to make out prima a least facie case at trial.” Id. Dickens v. (citing Puryear, 302 437, (1981)). opposing summary N.C. 276 S.E.2d 325 motion for judgment, non-moving party “may upon allega- not rest the mere pleading, response, by tions or denials of but his his as affidavits or provided rule, otherwise showing in this must set forth facts that there is a issue for 1A-1; trial.” N.C. Gen. Stat. § Rule 56(e) (2003); Equipment Mason, Nasco v. 145, see also Co. 291 N.C. 149, 229 278, (1976). S.E.2d 281
We grant review de a trial court’s judgment. novo Va. Tillett, 383, & v. App. 385, 188, Electric Power Co. 80 N.C. 343 S.E.2d (citation denied, 715, 191 cert. omitted), 317 N.C. 347 457 S.E.2d (1986). review, “Under a novo de the court considers the matter freely its own judgment substituí the” trial anew[] [es] [that of] 445 APPEALS THE COURT OF
CATER v. BARKER App. 441 N.C. 1, Planning Bd., N.C. Media, Randolph Cty. 356 Inc. v. court. Mann omitted). 13, 9, (2002) (quotation 17 565 S.E.2d IV. Breach of Contract [1] Defendant argues the trial court erred granting for breach of contract. judgment on their claim motion for disagree. We (1) must show: existence party asserting
A breach of contract Poor v. contract; the terms of that contract. a valid breach of 19, 26, 838, (2000) (citing 843 Jackson Hill, App. N.C. 530 S.E.2d 138 870, 871, 571, Co., App. N.C. 463 S.E.2d Hardwood 120 v. California disputed by Agreement is not either (1995)). The existence of the 572 plaintiffs failed to party. Further, defendant does not claim Boyd Watts, v. 73 their under the See party contract App. 566, 570, 46, (a asserting 49 breach of 327 S.E.2d in order to promise his or offered to do so must have first omitted)), disc. rev. preserve rights (citations under the contract his grounds, allowed, 114, (1985), 479 rev’d on other 314 N.C. 332 S.E.2d whether defend- 622, (1986). 840 The issue here is 316 N.C. 342 S.E.2d ant breached the terms of the contract. must principle legal construction
“It is well-settled ‘[i]t clearly language used presumed parties intended what be mean what on its expresses, must be construed to and the contract ” 294, Hagler, 287, purports Hagler v. 319 N.C. face it to mean.’ 706, Hood, 226 N.C. Indemnity Co. v. 228, (1987) (quoting S.E.2d omitted)). 710, 198, (1946) (citations 40 S.E.2d interpret, to ascertain the upon to it seeks When a court is called execution. To ascertain parties at the moment of intent of used, the situation intent, language court looks to the Presumably words accomplished. parties, objects to be deliberately chosen and are to parties were which the select ordinary significance. given their 841, Mills, Inc., 111 S.E.2d
Briggs
v.
Langdon,
v.
omitted); see also Corbin
(citations
language is clear
(1974) (“Where
25, written,
interpret
contract as
obliged unambiguous, the court is
*5
parties
construction,
‘reject what
cannot,
guise
under the
omitted)). “Under
(quotation
....’”
and internal citation
inserted
construction,
an
is clear
where
general rules of contract
and sum-
material fact exists
unambiguous,
no
issue of
IN THE COURT OF APPEALS
App.
mary judgment
appropriate.”
is
Carolina Place Joint Venture v.
Charburgers, Inc.,
App. 696, 699,
569,
Flamers
145 N.C.
551 S.E.2d
(2001) (citing Corbin,
255).
23 N.C.
at
208 S.E.2d at
pertinent provision
states,
The
the Agreement
“Seller at her
expense
repairs
shall cause the
listed on Exhibit A to be made to the
house,
already
(Emphasis supplied).
some of which have
started.”
require
Defendant contends the
“does not
me ...
to do
respect
repairs
anything
footing,
to
to the foundation
other than
deposit
$4,000.00
attorneys^]
sum of
Plaintiff’s
escrow
[sic]
responsible
account and be
and all additional costs.” She
required
“all
. .
things
agree-
asserts that
under
. the
fully performed.” However,
ment have been
acknowledges
defendant
know,
prepared by anyone
I
far as
no
have been
to
“[s]o
subject premises
. . . .”
specific
parties
language
agreed
chosen and
to
was:
Interpreting
“shall cause the
...
to be made.”
language
“ordinary significance”
under its
and “construed to mean what on its
purports
requires
just pay
face it
to mean”
defendant to do more than
repairs;
fully complete
Briggs,
for the
she must
them as well.
251 N.C.
843;Hagler,
Under terms of the defendant was complete repairs. allege plaintiffs pre Defendant does not performance. vented or frustrated her Plaintiffs’ activities did not by prevention. Propst discharge rise to the level of Construction Dept. Transportation, App. 759, 762, Co. v. (1982) (“The prevention pre doctrine of ‘one who performance condition, impossible by vents the of a or makes it his act, permitted advantage nonper own will not be to take of the nonperformance, In order formance.’ to excuse the conduct on the part party prevented allegedly performance who ‘must be ” wrongful, legal rights.’ and ... of his (internal excess citations quotations omitted)). *6 APPEALS OF
IN THE COURT CATER v. BARKER (2005)] App. 441 N.C. [172 contract is a breach there- “Non-performance of valid charged . . shows valid reason person . some of. . . unless rests doing the burden of so may non-performance; excuse 488,119 Corp., upon Blount-Midyette Aeroglide v. him.” Agreement was (quotation omitted). (1961) S.E.2d 2000. Plaintiffs parties on 21 November entered into January at- Defendant’s one on 13 commenced action discharge years of two cannot performance over the course tempt at obligation. her supporting plain- pleadings and evidence
Our review of the summary a sufficient factual discloses tiffs’ motion supplied support claim of contract. Plaintiffs basis to their of breach Agreement, including the valid and enforceable trial court with willfully has parties’ alleged obligations, each “[defendant agree- terms of the justifiable refused to without excuse not adhered to with the “agreement . . . .” and the has been ment . .” admits the have not been being made . . Defendant satisfactorily showed the trial court that defend- completed. Plaintiffs performed obligation. not ant has plaintiffs matter, (1) prof- we hold:
After de novo review defendant breached pleadings and evidence show fered sufficient exist; fact and no issues material showing gen- facts that there is a did not “set forth defendant 1A-1, 56(e). Rule for trial.” N.C. Gen. Stat. § uine issue to close on the real agreeing consideration necessary repairs, prior completion agreed upon property repairs ... to be made to the promised to “cause the defendant fully their under house.” completed. We admits the have been Agreement. Defendant plaintiffs’ motion for properly granted hold the trial court Venture, App. 699, 551 145N.C. See Carolina Place Joint judgment. construction, general rules of contract (“Under at 571 S.E.2d genuine issue of unambiguous, no an is clear and where appropriate.”). This judgment fact exists and material assignment of error is overruled.
V. Laches [2] Defendant contends issues of fact exist concerning her defense disagree. claim. We against laches IN THE COURT OF APPEALS previously held, equitable We aches is an defense and is “[1] available in an City-Wide Asphalt action at law.” Paving, Inc. v. County, App. 533, 537, Alamance (citations omitted), disc. rev. denied and dismissed, 350 N.C. *7 826, 537 (1999). “[pjlaintiff’s S.E.2d 815 When a legal claims are nature, equitable[,]” not support laches cannot judgment for the defendant. Id. initially
Plaintiffs sought performance and in the alter- native, damages, for defendant’s breach Agreement. The summary trial court’s judgment awarded damages, a legal remedy, specific performance. not The defense of laches is applicable. The trial court did not err in granting summary judgment plaintiffs on the defense of laches. assignment This error is overruled.
VI. Conclusion Plaintiffs and defendant binding, entered into a enforceable, and unambiguous Agreement. their obligation under Agreement. Despite having years over two duty, her complete defendant did not and breached Defendant prevented, excused, was not or discharged perform- from ing obligation. her
Plaintiffs were damages, awarded a legal remedy. Defendant’s inapplicable defense of laches is to the facts at bar. Plaintiffs’ motion properly granted. was The trial judg- court’s ment is affirmed.
Affirmed.
Judge McGEE concurs. Judge part GEER part. concurs in and dissents in GEER, Judge, concurring part and dissenting part. I agree majority plaintiffs that since equitable seek no relief in case, this the trial court did not err in granting judg- ment to on the defense of I believe, however, laches. issues of fact remain regarding whether par- defendant breached the ties’ and, therefore, respectfully dissent. THE COURT OF APPEALS v. BARKER
CATER entirety: provided parties’ agreement in its conveyed being lands BARKERas Seller of the CATHERINE C. KATHLEEN CATER, LYNNEO’CONNORand date DIANE Buyers’ Buyers, agreeing to com- O’CONNOR, in consideration of subject rather than wait plete closing agreement, to this completed by being on house sold repairs to be Seller certain promises Buyers hereby as follows: covenants agrees, on expense cause the listed 1. Seller at shall already house, some of which have Exhibit A to be made to been started. portion footing for that house The foundation ground and tree poured over
has been formed and onto repaired replaced expense stumps at Seller’s shall and/or for the entire house meets standards so the foundation good Building Code and residential construc- the North Carolina *8 tion standards. $200.00 $4,000.00for work and
3. The sum of the foundation Philo, repairs by Spivey & shall be escrowed for the other proceeds net to be Henning, closing at from Seller’s sales P.A. ex- expenses If of the applied expenses. these the escrowed, any all pay shall for and being ceeds the sum Seller additional cost. the agreement not include Exhibit A to
The record on does than the foun- parties specified the have not what other subject agreement. were to the dation summary judgment, plaintiffs support their motion for of only stating generally each own affidavits with
submitted their by repair agree- breach the damaged she has been the of “[t]hat $14,500.00 in and. by seeking damages the Defendant” and ment supplied no attorneys’ in The affidavits $2,900.00 fees costs. conclusory apart from claim about breach the facts whatsoever the the affi- agreement was Plaintiffs also submitted that the breached. in Bates, he had the residen- Don who stated worked davit of industry years, he for 28 Homebuilding and construction tial by repair the Plaintiffs knowledge sought work personal had “of repair action,” of the above-captioned (3) that the cost in the Thus, Mr. Bates’ affidavit $14,500.00 and materials. labor would short, any of contract either. In supplied no about breach information THE COURT OF APPEALS sought on their based bare assertion defendant breached the and based on evidence their damages. responded affidavit,
Defendant her own which stated pertinent part: following
6. closing, That on or about December report my qualified engineer by from a civil had been obtained broker, Larry Davis, necessary real regarding estate work repair Copy the foundation mentioned in Escrow report of this attached as “2”. Exhibit receipt report, Larry Following of this Mr. Davis perform necessary obtained an estimate to work from Shayne $5,500.00. Boatwright the amount At the time estimate, early Boatwright in late 2000 or Mr. or [sic] spring was able to the work during of 2001 and as far know, as I no action was undertaken Plaintiffs or their attorney any to authorized the work at [sic] year during time 2001. I did not refuse for the work required fact, to be done time and in authorized Mr. Davis performed. to have the work
I regarding transpire[d] have no further information what has except with regard copy to this escrow account of letter [sic] May my attorney. received on or about 2002 from This letter is copy attached as Éxhibit “3” and of a includes letter from then-attorney, the holder of the escrow monies outlin- ing placed the fact that into some monies escrow had been $200.00 expended, namely proper other was $475.00 under the Escrow engineering *9 report 9, attached hereinabove dated December provide The North Carolina Rules of Civil Procedure that summary judgment granted pleadings, depositions, shall be “if the file, answers to interrogatories, together and admissions on affidavits, any the any, genuine if show that there no issue as to is any party judgment material fact and that is to a entitled as a matter “ 56(c). motion, of law.” N.C.R. P. In deciding Civ. the ‘all of inferences . . against party fact. must be drawn the and in favor movant ” opposing Deese, 375, 378, the motion.’ Caldwell v. 288 N.C. 218 379, W. (1975) (quoting al., S.E.2d 381 6 Moore et James Moore’s 56-15[3], Federal at (2d 1971)). Practice 2337 ed. § 451 APPEALS IN THE COURT OF . v. BARKER CATER App. N.C. summary the of estab- party moving judgment has burden The Collingwood any v. General Elec. lishing lack triable issue. of Inc., 63, 66, 425, (1989). Equities, S.E.2d Real Estate burden, non-moving party then the moving party meets its Once the plaintiff “produce demonstrating that the must a forecast of evidence Id. In prima a facie case trial.” will be able to make out at least party non-moving judgment, the opposing a motion for upon pleading, his “may allegations or denials of but not rest the mere rule, provided in must response, as otherwise this his affidavits or a for trial.” showing genuine facts that there is issue set forth N.C.R. P. 56(e). Civ. determine, is on the basis of the appeal,
On
this Court’s task
to
court,
genuine
there
a
presented to the trial
whether
is
materials
party
any
moving
is entitled
issue
to
material fact and whether
as
Roberts,
311,
v.
judgment
to
as a matter of law. Oliver
denied,
(1981).A
399,
(1980),
cert.
cert.
When party, supports it a find- defendant, non-moving as I believe that *10 452' IN THE COURT OF APPEALS
CATER v. BARKER ing that defendant had located a contractor authorized that the longer possession work be done. Since defendant was no premises, it is difficult see what to more defendant could do to com- ply agreement. with majority suggests that defendant has failed to offer evidence plaintiffs with causing interfered defendant’s affidavit,
made. however, Defendant’s states: action was under- “[N]o taken attorney Plaintiffs or their per- to authorize the work to be [] any during year formed at time majority 2001.” The does not explain plaintiffs’ how be on property could with- plaintiffs’ brevity plaintiffs’ out authorization. Given the eviden- tiary showing, defendant’s affidavit should sufficient to defeat summary judgment. majority I jury believe that the substitutes itself for the when it “ performance
asserts that one attempt at over the [defendant's years course two discharge obligation.” cannot her A reason- jury able could decide that obtaining defendant’s efforts in a re- port identifying repairs necessary, locating a contractor work, authorizing work, the contractor to begin plaintiffs notifying comply was sufficient to agreement. under the is not It for this Court to make determi- especially given nation the almost non-existent nature evidentiary showing. undoubtedly story,
While there is more to this chose present theory their version of the facts and their of their claim to the trial plaintiffs’ summary judgment court. Neither ma- terials nor their brief on why demonstrate defendant’s actions constituted as a matter of agreement. law breach of the Simply asserting occurred, that a breach has adding without support claim, factual details such a should be insufficient to establish entitlement to as a matter of law on breach of claim contract when the defendant has offered suggest- evidence ing no breach occurred.