ELECTRONIC WORLD, INC.,
Plaintiff,
v
.
RICKEY J. BAREFOOT, KATHERINE BAREFOOT, MIKE CHANDLER and TOMMY
CHANDLER,
Defendants.
Marshall, Williams & Gorham, L.L.P., by John L. Coble, for
plaintiff appellant.
Ramos and Lewis, L.L.P., by Michael R. Ramos, for defendant
appellees.
TIMMONS-GOODSON, Judge.
Electronic World, Inc. (hereinafter “plaintiff”) appeals from
summary judgment granted by the trial court in favor of Rickey
Barefoot, Katherine Barefoot, Mike Chandler, and Tommy Chandler
(hereinafter collectively, “defendants”). For the reasons stated
herein, we reverse the judgment and remand this case to the trial
court.
An examination of the pleadings, exhibits, and depositions
filed in response to defendants' summary judgment motion,
considered in the light most favorable to plaintiff, tends to show
the following: In 1986, plaintiff entered into a lease with
Frances Barefoot for the possession of certain real property
located at 924 Jefferson Street, also known as U.S. Highway 74/76,in Whiteville, North Carolina. The terms of the lease (“1986
lease”) included possession of a store named “Shorty's Convenient
Mart” (hereinafter “Shorty's”) located on the property. The
property also included two underground gasoline storage tanks
(“original gasoline tanks”). After acquiring possession of the
property, plaintiff installed two additional underground gasoline
tanks (“additional gasoline tanks”), attached gasoline pumps on the
gasoline aisles, and acquired the necessary permits for the sale of
gasoline at Shorty's. Plaintiff tendered rental payments to
Frances Barefoot for the full term of the 1986 lease.
On or before 16 December 1996, Frances Barefoot transferred
title of the property to her son, Rickey Barefoot (“Barefoot”) and
his wife, Katherine Barefoot (hereinafter collectively, “the
Barefoots”), and on 16 December 1996, plaintiff and the Barefoots
executed a lease (“1996 lease”) of the property. Under the terms
of the 1996 lease, plaintiff and the Barefoots agreed that the
lease would begin 20 October 1996 and expire 19 October 2007.
Plaintiff agreed to pay $425.00 per month for rental of the
premises, with a gradual increase over the years of the lease.
(See footnote 1)
The lease agreement contained the following description of the
premises: “all that certain parcel of land together with
improvements presently known as Shortie's [sic] Convenient Mart,
located on U.S. 74/76 in Whiteville, Columbus County, NorthCarolina.” During the lease negotiations, Rickey Barefoot and
plaintiff discussed the fact that both the original and additional
gasoline tanks required removal and/or replacement pursuant to
state and federal law. Barefoot acknowledged that the tanks needed
replacement and agreed to repave the parking lot once the
replacement was completed.
Plaintiff thereafter continued to sell gasoline at Shorty's
and tender rental payments to the Barefoots. In December of 1997,
the Environmental Protection Agency (“EPA”) informed plaintiff that
it must remove or replace the original gasoline tanks. Raymond
Banks Watts (“Watts”), the president of plaintiff corporation,
informed Frances Barefoot that he would assist in removing the
original gasoline tanks, but that she would have to hire someone
for the removal if his equipment was inadequate. According to
Watts, Rickey Barefoot informed both Watts and the environmental
testing company hired for the job that he would “take care of” the
costs for removing the tanks. Consequently, workers began
excavating the original gasoline tanks on the property. After the
initial excavation, however, Barefoot refused to contribute any
further payments, forcing plaintiff to complete the removal at a
cost of $5,455.12.
Later that year, Barefoot leased to Mike and Tommy Chandler
(hereinafter collectively, “Chandler”), certain real property
located at 926 Jefferson Street. Chandler then began operating a
business known as “Bogue Motor Sales” on the property, which is
adjacent to the property leased by plaintiff. After signing theBarefoot-Chandler lease, Barefoot asked Watts if he was interested
in selling Shorty's to Chandler. Watts informed Barefoot that he
would discuss the sale of Shorty's with Chandler. Subsequently,
Mike Chandler approached Watts and offered to purchase Shorty's
from plaintiff, but sales discussions quickly collapsed and Mike
Chandler in turn informed Watts that “we really don't want the
business, we just want the property.”
After this incident, Watts witnessed Barefoot visiting the
neighboring Chandler business on several occasions. On one such
occasion, Barefoot invited Watts to the Chandler office in order to
“resolve this.” Watts refused, and shortly thereafter, Chandler
began parking used vehicles on the property under which the
additional gasoline tanks were located. Although Watts repeatedly
asked Chandler to remove the vehicles from the property, Chandler
refused to do so.
Because the vehicles obstructed plaintiff's access to the
gasoline tanks, plaintiff allegedly was unable to replace them, as
required by state and federal law. Plaintiff was thereby forced to
discontinue its sale of gasoline at Shorty's. Chandler's customers
then began using plaintiff's property as a parking lot _ “even to
the point of leaving [their] cars parked at [plaintiff's] gas
pumps” while they visited and test-drove vehicles from Chandler's
business. When Watts asked Barefoot to intervene and prevent
Chandler from parking vehicles on the property, Barefoot became
“hostile,” cursed Watts, refused to acknowledge that plaintiff was
entitled to possession of the gasoline tanks, and made no attemptsto prevent Chandler from parking vehicles on plaintiff's property.
Watts contacted law enforcement officers on several occasions
regarding Chandler's increasingly hostile behavior towards
plaintiff. For example, on one occasion, Tommy Chandler threatened
to “slap [Watts'] head off.”
After the dispute between plaintiff and Chandler arose,
Barefoot surveyed the property. Barefoot then informed Watts that
the land encompassing the gasoline tanks was part of the rental
property covered in the Barefoot-Chandler lease. In 1999, after
receiving a letter from the EPA, Chandler removed the cars from the
land where the gasoline tanks were located. Barefoot did not,
however, remove or replace the additional gasoline tanks as
required by state and federal law. Subsequently, plaintiff hired
a consultant to remove the additional gasoline tanks at a cost of
$8,447.00.
On 16 February 2000, plaintiff filed a complaint against
defendants alleging breach of lease, trespass, civil conspiracy,
and unfair and deceptive trade practices. Plaintiff also sought
recovery for monies allegedly due from Barefoot for removal of the
original and additional gasoline tanks. On 18 May 2000, defendants
filed their answer, in which they asserted four affirmative
defenses, including, inter alia, that plaintiff's lease failed “to
adequately describe the leased premises as required by the statute
of frauds.” Moreover, Chandler asserted a counterclaim against
plaintiff for trespass.
On 8 February 2001, defendants filed a motion for summaryjudgment, which was heard by the trial court on 4 June 2001. Upon
review of the pleadings, exhibits, depositions, and arguments of
counsel, the trial court found that “the lease referred to in
plaintiff's complaint and attached thereto and giving rise to
plaintiff's claim is void in that the description contained in said
lease is inadequate to support the actions of the plaintiff.” The
trial court therefore concluded that defendants were entitled to
judgment as a matter of law and consequently granted defendants'
motion for summary judgment. Plaintiff appeals.
______________________________________________________
The dispositive issues before this Court are whether the trial
court erred in (1) concluding that the lease referenced in the
complaint was void and (2) granting summary judgment in favor of
defendants based on its conclusion that a lease rendered void by
the statute of frauds bars any claims that arise in connection with
the lease.
Summary judgment is appropriate when the “pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that any party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2001). The party moving for summary judgment has the burden of
showing that either an essential element of the plaintiff's claim
does not exist, or that plaintiff cannot produce evidence to
support an essential element of the claim. Evans v. Appert, 91
N.C. App. 362, 365, 372 S.E.2d 94, 96, disc. review denied, 323N.C. 623, 374 S.E.2d 584 (1988). In determining the propriety of
summary judgment, all evidence is viewed in the light most
favorable to the non-movant. See Bruce-Terminix Co. v. Zurich Ins.
Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998).
Plaintiff contends that the trial court erred in concluding
that the lease referenced in plaintiff's complaint was void because
the description of the land conveyed was insufficient as a matter
of law. We agree with plaintiff.
To be enforceable, a lease must meet the requirements of the
statute of frauds. See N.C. Gen. Stat. § 22-2 (2001). Section 22-
2 of the North Carolina General Statutes states that, “all . . .
leases and contracts for leasing lands exceeding in duration three
years from the making thereof, shall be void unless said contract,
or some memorandum or note thereof, be put in writing and signed by
the party to be charged therewith.” Id. “The writing must contain
a description of the land to be conveyed, certain in itself, or
capable or being rendered certain by reference to an external
source referred to therein.” House v. Stokes, 66 N.C. App. 636,
638, 311 S.E.2d 671, 673, cert. denied, 311 N.C. 755, 321 S.E.2d
133 (1984). “If the description set forth in the writing is
uncertain in itself to locate the property, and refers to nothing
extrinsic by which such uncertainty may be resolved, such ambiguity
is said to be 'patently' ambiguous[,]” and the contract is held to
be void.” Brooks v. Hackney, 329 N.C. 166, 171, 404 S.E.2d 854,
858 (1991). The determination of whether a description is patently
ambiguous is a question of law for the court. See Kidd v. Early,289 N.C. 343, 353, 222 S.E.2d 392, 400 (1976). A description of
property is merely latently ambiguous, however, “if it is
insufficient, by itself, to identify the land, but refers to
something external by which identification might be made.” House,
66 N.C. App. at 638, 311 S.E.2d at 674. Where the ambiguity is
latent, extrinsic evidence may be offered to identify the property.
See Lane v. Coe, 262 N.C. 8, 13, 136 S.E.2d 269, 273 (1964).
The property description at issue in the present case is as
follows: “all that certain parcel of land together with improvement
presently known as Shortie's Convenient Mart, located on U.S. 74/76
in Whiteville, Columbus County, North Carolina.” We do not
conclude that such a description creates “a state of absolute
uncertainty” as to its precise location. Lane, 262 N.C. at 13, 136
S.E.2d at 273. The location of the highway, as well as the name of
the store, provide sufficient indicators by which the property
could “possibly be identified with certainty.” Id. As such, the
property description contained in the lease was latently rather
than patently ambiguous, and the trial court should have considered
extrinsic evidence in order to determine the identity of the
property before ruling on the validity of the lease. See id.;
Yaggy v. B.V.D. Co., 7 N.C. App. 590, 599-600, 173 S.E.2d 496, 502
(1970). The trial court therefore erred in concluding that the
lease was void.
Moreover, plaintiff's other claims for trespass, civil
conspiracy, unfair and deceptive trade practices, and monies owed
were not necessarily barred because they arose in connection witha lease that may be declared void. “It has long been the rule in
this State that the Statute of Frauds bars only enforcement of the
invalid contract; it does not bar other claims which a party might
have even though those claims arise in connection with the
[invalid] lease.” Kent v. Humphries, 303 N.C. 675, 679, 281 S.E.2d
43, 46 (1981). We now examine plaintiff's other claims to
determine whether summary judgment was properly entered as to each
claim.
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