*1 IN THE COURT OF APPEALS
DYSART v. CUMMINGS (2007)] [181 proper control, under conditions, jury drove too fast for should icy snowy take the fact, conditions into account. In charge plainly permitted jury to find skidding that the of Defendant’s car solely was evidence of negligence because there was ice or snow on roadway. Preceding instructions, these however, was the court’s emergency sudden jury instruction which allowed the to conclude that even if negligent operation Defendant was up of his car point ice, that he hit the he was not liable for the accident because the ice that him caused to lose control of his car constituted sudden and unforeseeable conditions. Under circumstances, these we are say unable to as a jury matter of law that the was not influenced in its decision the court’s emergency sudden instruction. Plaintiff, there- fore, is entitled to a new Accord, Pinckney trial. Baker, App. 670, 674, (1998) (“ a trial judge ‘[w]hen jury instructs the on an issue evidence, not raised a new trial is required”) (quoting Smith, Giles v. App. 508, 512, (1993)).
NEW TRIAL.
Judges McGEE and HUNTERconcur. CHRISTIAN EMERSON DYSART and MILDRED MAXWELL Plaintiffs DYSART, WILLIAM KENT CUMMINGS and KIMBERLY N. CUMMINGS,
No. COA06-645 (Filed 2007) 20 February purchase Vendor and Purchaser— contract home — cost of repair contingency contract — return —termination money earnest
The trial court did not err in a breach of contract case entering summary judgment plaintiff allowing purchasers to re- $10,500 money cover the deposit they earnest gave to defendant sellers after purchase terminated the contract to a home based structural defects where a cost of contingency permitted plaintiffs addendum to the to termi- nate the contract money and reclaim their earnest “if a reason- able repairs” estimate of the cost of discovered inspections permitted by the contract $1,000,” “exceeds THE COURT OF APPEALS IN
DYSAET v. CUMMINGS *2 fair manner and faith and acted in a reasonable 14-day period inspections for stated in play when, within the time home, contract, they arranged inspections of the received reports had defects that would cost that the home structural $10,000 repair, gave and notice to defendants that more than option contin- exercising their under cost of contract. gency addendum terminate the dissenting. Judge Stroud by Judge
Appeal defendants from order entered March County Superior Court. in the Court Kenneth C. Titus in Wake Heard January Appeals 10 2007. PLLC, by Philip Isley, plaintiffs-appellees. Boyce Isley, & R. Bass, Bryant Fanney, P.L.L.C., by Bryant John and & Walter Currin, defendants-appellants. Eva C.
TYSON,Judge. Kimberly (“de- Cummings wife, Cummings,
William and N. Kent fendants”) appeal granting from order entered Christian Emerson Dysart’s Dysart wife, (“plaintiffs”) motion for and Mildred Maxwell summary judgment. We affirm. Background
I. purchase 2003, plaintiffs August offered to defendants’ Carolina, pur- Raleigh, Oak home located at 2512 White Road North (the “Contract”). an Purchase Contract The suant to Offer to and price $1,200,500.00 an and earnest Contract recited money deposit $10,500.00. deposit was tendered held in escrow. with the Contract and received defendants and day. The Contract included signed Contract document, ADDEN- an attached titled “ADDITIONALPROVISIONS Repair signed simulta- (the Contingency”), DUM” “Cost of neously. The states: Addéndum If a estimate of
9. COST OF REPAIR CONTINGENCY: reasonable required 12(b) Paragraph the total cost equals Paragraph to Purchase and Contract 12(c) Offer Buyer option have to ter- $10,000.00, then shall or exceeds monies minate and all earnest shall be returned this Contract Buyer. IN THE COURT OF APPEALS DYSAET v. CUMMINGS A BETWEENTHIS ADDENDUM THE EVENTOF CONFLICT IN CONTRACT, AND THE OFFER TO PURCHASE AND THIS SHALLCONTROL. ADDENDUM
Paragraph 12(b) Paragraph 12(c) of the contract state: Property Inspections: herein,
12. stated (b) Unless otherwise Buyers Buyer option inspecting, obtaining shall have the Property. expense inspections, to determine the condition of the herein, otherwise stated it is a condition of this contract Unless system, sys- (i) appliances, plumbing the built-in electrical tem, heating cooling systems, coverings (including roof flash- surfaces, ing gutters), windows, doors and exterior struc- *3 components foundations, columns, chimneys, (including tural floors, walls, porches decks, fireplaces ceilings, roofs), and and hues, space systems (if any), and crawl and attic ventilation systems (public private), perform- water and sewer and shall be not be in need of ing the function for intended shall repair; (ii) drainage there be no unusual condi- immediate shall adversely affecting or evidence of excessive moisture tions (s) (iii) existing there shall be no friable asbestos or structure Any inspections environmental contamination. shall be com- pleted necessary repairs given to and written notice of shall be acceptance. provide on before 14 davs after Seller shall Seller or days Buyer response written notice to of Seller’s within Buyer any inspections Buyer’s made notice. is advised to have prior incurring expenses Closing time to sufficient completed Closing. any permit required to be bv [12.](c) Wood-Destroying Insects: Unless otherwise stated herein, Buyer option Buyer’s obtaining, shall have the at expense, report pest operator on a from a licensed control North regulations standard form in accordance with the Committee, stating that as all Carolina Structural Pest Control except visible evidence of wood- structures N/A. there was no damage indication visible destroying containing insects and no report must be obtained in sufficient time so as to therefrom. The permit treatment, any, repairs, any, completed prior if be paid required All shall be Seller and Closing. treatment completed prior Closing, agreed in writ- unless otherwise Buyer inspection report ing parties. The is advised that the always reveal either struc- paragraph described in this mav not organisms damage agents or other damage tural or caused bv APPEALS IN THE COURT OF v. CUMMINGS DYSART wood-destroving construction, Seller shall than insects. If new warranty termite soil treatment. provide a standard accepted; stated, (1) the event: this offer is not The Contract also “[i]n satisfied, then all earnest hereto are not of the conditions Buyer . .. shall be returned to monies Philip McLean, (“McLean”), W. Sr. September 2003, inspec- inspector, a home Carolina home conducted
licensed North plaintiffs. inspection reported “[significant set- McLean’s tion for corner, appears (the front crack to start tlement crack at the left (b) 2nd A crack in up through floor), and run and to the the bottom garage wall). Further evaluation is warranted.” (left the stucco rear.of “report affidavit to Plaintiffs stated his was made available McLean’s September 9, 2003.” September 2003, (“Fluhrer”), a struc- on 8 Mitchell Fluhrer (cid:127)Also inspected noted structural engineer, the house. His evaluation tural pro- Fluhrer stated in his affidavit that “in defects to the house. [his] expect opinion would that this would well fessional [he] provided separate letters $10,000.” than Fluhrer two exceed more September plaintiff Christian September 2003 and 11 dated Dysart findings. that stated his Dysart deposition Maxwell stated in her
Plaintiff Mildred day September 9, we instructed our realtor to in the “[l]ater paragraph 9 of the Additional terminate the contract *4 to the Offer to Purchase and Contract.... Our Provisions Addendum to the seller’s faxed a notice of termination of the contract realtor day.” realtor that same Mary September 2003, agent, defendants’ real estate Edna
On 9 by telecopy plain- from (“Williams”), Williams received a facsimile agent, (“Sewell”). Bill Sewell This facsimile stated tiffs’ real estate provisions “Buyer per additional had decided to terminate contract The facsimile included the North Carolina Association addendum #9.” “Termination of Contract and Release of of Realtors standard form by plaintiffs September copy and a Money” signed on 9 Earnest signed Additional Provisions Addendum. September 2003, Schmidt, superintendent for On 10 or 11 Steve company Inc., located in McDonald-York, a commercial construction time, he had in Carolina, evaluated the house. At that Raleigh, North written.by inspection possession a letter Fluhrer McLean’s his inspection, determined that “the left front cor- report. During his he (cid:127) IN THE COURT OF APPEALS CO LO DYSART v. CUMMINGS ner leaning of this house is to the tope left 2.175 inches ... at the [sic] of the wall. As viewed the left side this leaning corner is 0.365 right. inches to the This is indicative of a foundation failure at this prepared corner.” Schmidt estimate written of the total cost of $58,910.23. for September 2003, plaintiffs On 11 or 12 hand delivered and Williams, broker, defendants’ received a letter that delineated the rea- sons for termination $10,500.00 and demanded return of the earnest money held in escrow. deposition Williams stated in her “[o]n September 9, 2003,1 after inspection report by received a home Philip McLean, reports two from September Fluhrer Reed with dates September 2003 and an estimate from MY Homes dated 2003,which documents were also faxed to Kent Cummings.”Williams stated, house was taken off the market' when the Offer to “[t]he Agreement signed by Dysaxts Purchase and Cummings. put September house was back on the market 2003 to take back-up offers.” September 2003,
On 12 plaintiffs delivered Schmidt’s estimate again Williams and demanded $10,500.00 the return de- posit held escrow. Defendants refused to release and return the deposit. escrow Marty (“Graff’), contacted Graff a licensed contrac-
tor, McLean’s, Fluhrer’s, to evaluate and Schmidt’s estimates. On 24 September 2003, inspected Graff the house and estimated the cost of repairs $10,000.00. was less than Graff stated in his affidavit he repaired inspections report the defects as listed in the home for $6,986.11. In August completed, after the the house appraised $1,029,000.00. Defendants sold the house another buyer $1,020,000.00 August on 10 2004. May 2004,plaintiffs complaint filed a against defendants to $10,500.00 money
recover the earnest held in escrow. Plaintiffs alleged contract, conversion, unjust breach of enrichment, and declaratory sought a judgment. On 11 October defendants answered, waiver, raised the estoppel, affirmative defenses of set- off, sought and counterclaimed for breach of contract and a decla- ratory judgment. *5 February 2006,plaintiffs summary judgment. moved for On February 2006, hearing
27 the trial court a conducted and the trial summary judgment plaintiffs court entered in favor of on 1 March appeal. 2006. Defendants APPEALS IN THE COURT OF
646 DYSART v. CUMMINGS 641 II.Issues plaintiffs, defendants, argue not breached the summary judgment is Contract and error.
III. Standard of Review Summary proper depositions, is an- judgment pleadings, if the file, together with the interrogatories, swers and admissions any affidavits, any, genuine is no issue as to show that there any party a judgment material and that is entitled as mat- fact summary ultimately party moving judgment of law. The ter any of establishing has the of the lack of triable issue fact. burden may A show defendant entitlement plaintiff’s case (1) proving that an essential element of the discovery plaintiff non-existent, (2) showing through or that the produce support an cannot evidence to essential element his claim, plaintiff (3) showing or her that the cannot surmount Summary judgment appropriate an affirmative defense. is not credibility determining weight where matters evidence exist. required party seeking summary judgment
Once makes showing, nonmoving party produce shifts the burden to the demonstrating specific facts, opposed as forecast of evidence prima allegations, showing at least he can establish facie . . . would be case trial. To hold otherwise to allow effectively pleadings, rest on the useful and effi- neutralizing their procedural summary judgment. cient tool Draughon Cty. Educ., 208, 212, v. Bd. Harnett 732, (internal quotations omitted), S.E.2d citations per curiam, 131, (2004). S.E.2d 521 We review an aff’d summary judgment Summey Barker, allowing order de novo. 247, (2003).
IV. Breach of Contract protec right being “The as within the recognized to contract Amendments to the Constitution tion Fifth Fourteenth protected by the United . . . and state constitutions.” States Alford Co., (1958). 103 S.E.2d 10-11 Insurance contrary right . . . to law or “Persons have a make not policy.” 221, 223, public Nelson, Fulcher v. 2d, (1968) (quoting Strong, 1).§ North Carolina Index Contracts *6 647 OF APPEALS
IN THE COURT v. CUMMINGS DYSAB.T (2007)] 641 [181 contract, competent enter equal footing, parties are on “[W]hen honorably, fairly subject, so lawful and do agreement an on a into was inquiry whether the contract permit as to the law does not Cofield, 273 N.C. Knutton v. bad, wise or foolish.” whether it was 363, 29, (1968). 36 355, 160 S.E.2d parties, which is to intention of the of a contract is the
“The heart
subject matter, the end
expressions used, the
from the
be ascertained
parties at the
of the
view,
purpose sought, and the situation
in
518,
295,
Co.,
520,
50 S.E.2d
Co. v. Insurance
time.” Electric
407, 409-10,
Scarborough,
200 S.E.2d
Lane v.
(1948);
see
interpret
contract,
pri-
its
622,
(When a court is asked
“The inten-
parties.).
intention of the
mary purpose is to ascertain the
not from
the entire instrument and
parties
gleaned
from
tion of
Paper
Corporex Construc-
Co. v.
portions.” International
detached
553,
(1989).
Inc.,
App. 312, 316, 385 S.E.2d
tors,
as a whole.” Id.
is construed
“It is well settled that
in
Id. at
are to be considered
context.”
“Individual clauses
pos
if
given
will be
effect
parts
“All
of the contract
S.E.2d at 555-56.
on one
“Where a contract confers
Id. at
In Midulla App. 306, 308-09,515 plaintiffs. 133 N.C. in favor of the same adden- parties’ contract contained (1999). 246-47 held offer here. Id. This Court dum that is before us body restrictions, the of covenants contingent on “[r]eview at 246. satisfactory Buyer.” Id. at which are contract, “plaintiffs had the discre- the addendum to the Pursuant to they with the if were not satisfied the Contract tion to cancel property area where the governing the and restrictions covenants Id. was located.” plaintiffs and held: summary judgment for affirmed
This Court discretionary power to cancel gave Contract [t]he covenants they satisfied with the were not the Contract IN THE COURT OF APPEALS DYSART CUMMINGS restrictions. The record reflects that believed that “the exposed becoming covenants and restrictions them to the risk of obligated payments inadequate an had voice approving.” Contract, Under terms of the this would be an *7 adequate reason to cancel the Contract. 309-10,
Id. at
(Emphasis supplied). September 2003, plaintiffs
On 8 or 9 obtained an estimate from McLean, inspector, Fluhrer, a licensed North Carolina home engineer, repairs structural that the estimated total cost of exceeded $10,000.00. September 2003, plaintiffs faxed, and defendants received, a North Carolina Association Realtors standard form Money” “Termination of Contract and Release of signed Earnest plaintiffs. “Buyer The form’s cover sheet stated had decided to termi- per provisions nate contract additional addendum #9.” On 9 September 2003, placed defendants their house back on the market to accept back-up offers. Repair Contingency gave plaintiffs 'discretionary
The Cost of power to Midulla, App. terminate the contract. See at (The buyer’s 515 S.E.2d at purchase contract to was contingent upon restrictions, body a “review of covenants and of which are satisfactory Buyer.”); Mezzanotte, see also buyer’s (The S.E.2d at 412 contingent buyer’s ability “to mortgage secure a second from North Carolina satisfactory National Bank on such terms and conditions as are them in closing order to finance the and to secure additional work- ing capital.”). OF APPEALS
IN THE COURT DYSART CUMMINGS faith acted in reasonable manner Plaintiffs also inspec- they promptly arranged and received a home play when fair fourteen-day paragraph 12(b), frame stated in within the time tion fourteen-day explicitly period was not stated though time even Repair Contingency Addendum. Cost of inspector, Fluhrer, a struc- McLean, a licensed home Both fourteen-day period that plaintiffs within the engineer, tural notified problems house, with the and estimated structural existed broker, Sewell, $10,000.00. exceed Plaintiffs notified their would fourteen-day period to terminate the that intended within Repair noti- Contingency. to the Cost of Sewell Contract Williams, broker, fourteen-day period within the fied defendants’ “Buyer per telecopy through had decided to terminate contract additional-provisions in her affidavit addendum #9.” Williams stated September 9, put house was back on market “[t]he back-up to take offers.” *8 discretionary promptly properly and their
Plaintiffs exercised cost of determining contract after the estimated right to cancel the days, although they explicitly not re- repairs within fourteen promptly notified quired do under the Addendum. Plaintiffs to so the Sewell, plaintiffs’ who of intent terminate notified Williams Repair Contingency. the of Plaintiffs Cost Contract Contract, promptly properly terminated the defendants for sale acknowledged by placing house back on the market are entitled to the days of the within fourteen Contract. Plaintiffs money assign- deposited with defendants. This of their earnest return of error overruled. ment
V.Conclusion
by
a mat-
properly interpreted
the trial court as
The contract was
The trial court
Lane,
N.C. at
Judge STEPHENSconcurs. opinion. by separate dissents
Judge STROUD IN THE OF APPEALS COURT DYSAET CUMMINGS STROUD,Judge dissenting.
I that there material genuine conclude are issues of fact as provided plaintiffs adequate pur- whether notice of termination chase contract whether termination the contract necessary was based repairs a reasonable estimate of the cost of property. Accordingly, I would the trial reverse court summary order granting favor of and remand Superior Court, County reason, I this case to Wake for trial. For this respectfully dissent.
Summary judgment appropriate pleadings, deposi when “the tions, interrogatories, file, together answers admissions affidavits, any, with genuine show that there is no as issue any party fact a judgment material and that is entitled to as a 1A-1, matter law.” N.C. Gen. 56(c) (2005). Stat. Rule “When con § sidering summary judgment, judge motion the trial must view presented light nonmoving evidence in a most to the favorable party,” Camp, 647, 651, Dalton v. 548 S.E.2d 707 (2001); thus, nonmoving party presumed true, facts asserted are to be e.g., Ry. Inc., 89, 97, see & W. Werner Co. v. Indus. Norfolk (1974), moving party 209 S.E.2d and the carries burden proof fact, to show there is no triable issue of Boudreau v. Baughman, 331, 342, (1988). appeal, On this Court de granting conducts novo review a trial court order Summey judgment. Barker, 492, 496, See (2003). present questions two for review this Court: whether failing pro- breached the necessary repairs days vide with a defendants list of within fourteen *9 plaintiffs of entering (2) pur- the contract and whether breached the by chase on an terminating contract the contract based unreasonable estimate. The trial order awarding court’s plaintiffs appropriate only affidavits, the pleadings, is and other plaintiffs’ per- evidence show as matter of law that termination was by purchase mitted pur- the contract. Two clauses contained in the govern my analysis (1) chase contract of these issues: contract clause “Property Inspections” titled and Disclosure addendum Repair Contingency.” clause “Cost of titled The contract by parties entered into the standard “Offer form to Purchase jointly approved and Contract” the North Carolina Bar Association and the of North Carolina Association Realtors. 651 THE COURT OF APPEALS
IN DYSAET v. CUMMINGS inspect property right the Contract clause defines provides pertinent part in inspections completed written notice of neces- [a]ny shall be on or before 14 repairs be sary given shall Seller [defendants] acceptance. days necessary, . . . Seller after are [I]f refusing of them or option completing shall have the [defendants] complete not complete them. If Seller elects [defendants] Buyer [plaintiffs] option accept- have of repairs, the then shall the present terminating in this con- ing [property its condition tract, in cáse all earnest monies shall be refunded. permits plaintiffs to choose to
(Emphasis added.) Addendum clause money their earnest rea- terminate the contract and reclaim “[i]f repairs” sonable estimate of discovered total cost $10,000.” inspections permitted clause “exceeds contract provisions not be construed as con “contract should Because interpretation possible,” flicting reasonable unless no other Corporex Constructors, Inc., Paper Co. International (1989), must consider this Court first 12 can be reconciled. whether addendum clause 9 contract clause may together without conflict. I conclude that these clauses be read expressly incorporates plain language of addendum clause requires 12; the “esti- thus, clause addendum clause 9 also provided “in writ- repairs” to defendants mate of the total cost of be days acceptance” plaintiffs’ offer to ... ing on or before after separately, then would be purchase. If the clauses were read time, anv on the option terminate at even permitted to exercise an interpretation, which is advanced day closing. This alternative incorporation clause 12 unsupported of contract plaintiffs, is illogical in and unintended con- clause and results into addendum sequences interpretation of performance of the contract. The Purchase particular concern because “Offerto these clauses is used a standard form contract which and Contract” at issue is extensively estate transactions. North Carolina real by fax agent real estate
Although
notified defendants’
per
provisions
they had
terminate contract
additional
“decided to
undisputed
days
acceptance,
it is
that the
#9”
addendum
within
terminating
contract, did not
why plaintiffs
did
fax
not state
an estimate of
necessary repairs, and did not contain
a list of
include
provide any
details of
repairs.
not
further
Plaintiffs did
the cost
*10
IN THE COURT
APPEALS
OF
DYSARTv. CUMMINGS
App.
day period
passed.
to
their decision
terminate until after the 14
had
Considering
light
defendants,
this
in the
most
evidence
favorable to
I
question
would
hold that there is
material fact as whether
adequate
notice
provided
of termination
con-
tract clause 12 and
9 of
addendum clause
the “Offer to Purchase and
parties.
Contract” entered into
above,
As stated
Repair
addendum clause
is a “Cost of
Contin
provision.
gency”
majority
plain
concludes that this clause gave
“discretionary power
only
tiffs
subject
terminate the contract”
requirement
ain
reasonable
and in
manner
“act[]
faith,”
good
citing
Freeland,
11,
App.
Mezzanotte v.
20 N.C.
denied,
(1973),
S.E.2d 410
cert.
284 N.C.
(1974)
In
provided
the real estate
agree
“[t]his
contingent upon parties
[plaintiff]
ment is
part
of the second
being
able to
mortgage
secure second
from North Carolina National Bank
satisfactory
on such terms and conditions as are
to them in
order
closing
finance
working capital.
and to secure additional
...” 20
App.
at
412 (alteration
S.E.2d at
in original) (emphasis
added). Midulla,
provided
In
plain
the real estate contract
that the
contingent
tiffs’ offer to
“[r]eview [residential]
satisfactory
restrictions,
body
covenants and
are
Buyer [plaintiffs].”
App.
at
515 S.E.2d at
(emphasis
added).
Midulla,
In both Mezzanotte and
this Court determined that
plaintiff buyers
discretionary power
respec
had
to terminate the
tive real estate
because
“satisfied,”
contracts
were not
and the
emphasized
“implied promise
Court
that an
faith and reason
accompanies any discretionary option
able effort”
a real
terminate
contingent
party’s
estate contract
that is
one
“satisfaction.”1
Mezzanotte,
415;
at
Midulla,
200 S.E.2d at
at
IN THE DYSART v. CUMMINGS App. (2007)] N.C. 641 [181 the real plaintiffs’ option to terminate judice, In the case sub estimate of the total “a reasonable contingent on contract is estate satisfactory plaintiffs.2 that is repairs,” not on an estimate cost of may plaintiffs choose discretionary in that the sense Although necessary despite the existence purchase contract honor the the contract $10,000, plaintiffs’ right to terminate repairs in excess of by require- expressly limited 9 is pursuant to addendum clause This means be reasonable. the estimated cost ment that that summary plaintiffs must show judgment, prevail on repairs” in cost of estimate of the total obtained a “reasonable $10,000. excess v. jury question. See quintessential a Reasonableness is Radford the test 501, 64, (1983) (“Since 65
Norris, App. 503, 305 S.E.2d 63 N.C. reasonableness, depends upon the circumstances is one of cases.”). jury question except in the clearest particular case, it is a consistently “reasonableness” is hold that Carolina courts North types Marcus jury many of cases. See different factual issue for 224, LLP, 214, 513 Waterhouse, Textiles, Inc. v. Price Bros. justifiable reliance in an question of 320, (1999) (The 327 S.E.2d to that of rea misrepresentation “analogous negligent action for jury for the actions, generally where it is reliance in fraud sonable representations made upon the plaintiff relied decide whether Props. Ray, v. State LLC quotation omitted); defendant.”) (internal fraud, 180, 186 (2002) (In an action App. 65, 73, 574 S.E.2d N.C. 155 “ jury, question for the party’s reliance is a of a reasonableness [t]he only conclusion.”); they Support one facts are so clear that unless the Corp., N.C. N.C., American Doubloon N.A. v. NationsBank of reason commercial (1997) (The App. 494, 499, 481 S.E.2d a loan after default on of collateral a bank’s retention ableness of to N.C. Mezzanotte, entered Court reviewed 2. In this App. 14, 200 S.E.2d at 1A-1, following at a bench trial. 20 Rule 52 § Gen. Stat. findings of fact were appeal, the trial court’s considered whether this Court 413. On supported supported findings of fact competent whether the court’s evidence and App. 384, Hollerbach, 368 S.E.2d of law. See Hollerbach its conclusions sitting findings a trial court review the (1988) (“The which we [of standard support any competent record to exists in the jury] evidence is whether without a them.”). at issue significantly from the standard different of review is This standard gen- there is a judice, requires whether this Court to determine in the case sub plaintiff Moreover, jury in Mezzanotte fact for consideration. uine issue of material buyers argued sale, sellers and defendant enforce contract for an filed action plain- illusory contingency was based was App. because Here, is whether 16-17, 414. the issue 200 S.E.2d at “satisfaction.” N.C. tiffs’ plaintiffs supported ade- contract, the contract itself not whether breached the quate consideration. IN THE COURT OF APPEALS DYSAB.T v. CUMMINGS App. jury question readily “is and does not judg- lend itself to may ment” because “reasonable minds differ over what is commer- cially reasonable.”); Martin, 592, 600, Smith (1996) (The mitigation reasonableness of a wrongful efforts in an action for cancellation of a deed of trust “depends upon particular the facts and circumstances of the case and jury question except ais in the cases.”); clearest of Snead v. Holloman, 467-68, 94 (1991) (The *12 reasonableness of a failure to follow medical advice in a negligence jury question action is a that is relevant to the amount of plaintiff may damages recover.). However, expressly deter- mining “[p]laintiffs acted in a reasonable manner and in faith,” majority question jury removes this from consideration and resolves the issue as a matter of law. Considering the evidence presented light in the most defendants, favorable to I would hold that there a genuine issue of material fact as to whether the esti- by plaintiffs mate obtained was reasonable.
My supported by decision following evidence forecast (1) plaintiffs’ defendants: initial estimate McLean was based cursory inspection during which McLean did not even look at the house; so, foundation under defendants’ gave opin- even McLean ion that settling major repairs the foundation was needed, (2) the crack McLean observed on the exterior of the home was not an settling actually superficial indication of at all but was defect caused water dripping leaky into the gutters, (3) stonework from $58,910.23 estimate of was not credible considering when actually completed necessary repairs defendants $6,986.11,and, given had other reasons wanting terminate the contract that were unrelated to the condition of the evidence, jury house. From this plaintiffs’ repair could find that esti- mate was unreasonable. above,
For the reasons stated I would reverse the trial court’s awarding order judgment to and remand this Superior Court, County case to Wake for trial. Accordingly, respect- I fully dissent.