BRADLY J. BUXTON,
Plaintiff-Appellant,
v
.
Guilford County
No. 00 CvS 6314
GARY JOBE BUILDERS, INC.
and HARRELL'S WATERPROOFING
& STUCCO DESIGN, INC.,
Defendants-Appellees.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by
Jeffrey E. Oleynik and David W. Sar, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, L.L.P., by H. Vance Barnette, III,
for defendant-appellee Gary Jobe Builders, Inc.
Pinto Coates Kyre & Brown, PLLC, by Richard L. Pinto and
Deborah J. Bowers, for defendant-appellee Harrell's
Waterproofing & Stucco Design, Inc.
McGEE, Judge.
Bradley J. Buxton (plaintiff) filed a complaint against Gary
Jobe Builders, Inc. (Jobe) and Harrell's Waterproofing & Stucco
Design, Inc. (Harrell) for breach of contract on 26 April 2000.
Jobe filed a motion to dismiss plaintiff's claim on 17 May 2000.
An entry of default was entered against Harrell on 26 October 2000
but was set aside pursuant to a consent order on 12 March 2001.
Harrell answered the complaint and filed a crossclaim against Jobe
on 3 April 2001. Jobe filed an answer to Harrell's crossclaim on21 May 2001. The trial court entered an order granting summary
judgment for defendants and dismissing plaintiff's action on 18
January 2002. Plaintiff appeals.
Plaintiff stated in an affidavit that he is the sole owner of
a house located at 3509 Brassfield Oaks Drive in Greensboro, North
Carolina, which he purchased in October 1994. The exterior of the
house consisted of hard coat stucco, not synthetic stucco, that was
visibly cracked on the right side and continued on the rear face at
the time of plaintiff's purchase. As a condition for purchasing
the house the seller entered into an agreement (1994 agreement), on
behalf of plaintiff, with Jobe and Harrell for the repair of the
stucco.
Plaintiff stated that he had numerous communications with
Harrell regarding the repairs and that Harrell performed part of
the repairs in early 1996. After plaintiff noticed lines in the
stucco, Harrell said that the original repairs had not been
completed, but he did not indicate that additional repairs were
needed. Harrell stated that the stucco needed to dry and age and
promised to complete the repairs. Harrell repeatedly promised to
return and complete the repairs during 1997 and 1998 but failed to
do so.
In 1999, plaintiff asked a carpenter to evaluate damage on the
front of the house and discovered that repairs were needed. When
plaintiff noticed that the repaired stucco was cracking again, he
contacted Harrell to request that the repairs called for in the
1994 agreement be completed. Harrell promised to complete the workbut again failed to do so. Plaintiff subsequently attempted to
contact Jobe about the repairs but received no response. Plaintiff
filed a complaint against Harrell and Jobe with the Better Business
Bureau and the three parties agreed to meet.
Plaintiff, Jobe, Harrell, and a licensed engineer met in
August 1999 to examine and discuss the stucco damage to the house.
Jobe and Harrell promised to repair an area on the front of the
house and the cracking on the right side of the house. According
to plaintiff, Jobe subsequently disavowed the agreements and
asserted that the promises were made independently by Harrell.
Plaintiff filed suit against defendants in April 2000.
Plaintiff first argues the trial court erred in granting
summary judgment for defendants and dismissing his claim.
Summary judgment should be rendered only when
the pleadings, depositions, answers to
interrogatories, admissions, and affidavits
disclose no genuine issue of material fact
entitling the moving party to judgment as a
matter of law. If an issue of material fact
exists, then the trial court should not grant
summary judgment. The party moving for
summary judgment has the burden of
establishing the absence of any triable issue
of fact.
Thomco Realty, Inc. v. Helms, 107 N.C. App. 224, 226, 418 S.E.2d
834, 835-36, disc. review denied, 332 N.C. 672, 424 S.E.2d 407
(1992) (citations omitted).
"The movant may meet this burden by proving
that an essential element of the opposing
party's claim is nonexistent, or by showing
through discovery that the opposing party
cannot produce evidence to support an
essential element of his claim or cannot
surmount an affirmative defense which would
bar the claim."
Id. at 228, 418 S.E.2d at 837 (quoting Roumillat v. Simplistic
Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992)).
Having reviewed the record, we conclude that the trial court
did not err in entering summary judgment for defendants. "Before
a valid contract can exist, there must be mutual agreement between
the parties as to the terms of the contract. Where there is no
mutual agreement, there is no contract." Routh v. Snap-On Tools
Corp., 108 N.C. App. 268, 273, 423 S.E.2d 791, 795 (1992) (citation
omitted).
"[I]n order for a contract to be
enforceable it must be supported by
consideration." Consideration exists if "the
promisee, in return for the promise, . . .
refrains from doing anything which he has a
right to do." "Forbearance or a promise to
forbear the exercise of a legal right is a
sufficient consideration for a promise made on
account of it . . . ."
Duncan v. Duncan, 147 N.C. App. 152, 155, 553 S.E.2d 925, 927
(2001) (citations omitted), disc. review denied, 355 N.C. 211, 559
S.E.2d 800 (2002). A contract must be supported by consideration
or binding promises that are mutually agreed upon by the parties.
Smith v. Barnes, 236 N.C. 176, 178, 72 S.E.2d 216, 218 (1952).
Plaintiff argues in his brief that the 1994 agreement was
supported by consideration consisting of plaintiff's forbearance
from suing defendants for negligent initial construction of the
house in exchange for defendants' promise to repair the house.
However, the record fails to show any evidence of mutually agreed
upon consideration to support the agreement between plaintiff and
defendants. The only mention in the record that plaintiff decidednot to sue based on defendants' promise to repair the stucco exists
in plaintiff's affidavit. Plaintiff stated that he "believed and
relied on [the] representations that the problems would be
correctly fixed, and thus refrained from filing a lawsuit."
However, there is no evidence that the parties mutually agreed that
plaintiff would forbear from filing a lawsuit in exchange for
defendants' promise to repair his house. While the record contains
letters from defendants demonstrating a promise to repair
plaintiff's house, the contents of the letters do not evidence a
contractual agreement supported by consideration or mutual promises
between the parties. Without a mutual agreement as to the terms of
the contract and adequate consideration or binding promises
exchanged between the parties, no enforceable agreement exists.
Assuming, arguendo, that the parties mutually agreed in August
1999 that plaintiff would not file a lawsuit in exchange for
defendants' promise to repair plaintiff's house, the record
demonstrates that this would provide consideration for a new
agreement and not the 1994 agreement. Plaintiff's affidavit states
that he relied on the promises made by defendants after their
August 1999 meeting and decided not to file a lawsuit. Plaintiff's
current complaint is based solely on the breach of the 1994
agreement, which we have found unenforceable for lack of
consideration. While plaintiff discusses a 1999 agreement in his
affidavit and brief, it was not a subject of plaintiff's complaint
and was not before the trial court for consideration. Accordingly,
we decline to address this issue. The record contains no evidence that the parties mutually
agreed in 1994 that plaintiff would forbear in bringing his lawsuit
in exchange for defendants' promise to repair his house. There is
no genuine issue as to any material fact regarding the existence of
an enforceable contract and defendants were entitled to judgment as
a matter of law. We affirm the order of the trial court.
Affirmed.
Judges EAGLES and HUDSON concur.
Report per Rule 30(e).
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