An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-428


Filed: 21 January 2003


v .                         Guilford County
                            No. 00 CvS 6314

    Appeal by plaintiff from order entered 25 January 2002 by Judge Russell G. Walker, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 13 November 2002.

    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.
    Judges EAGLES and HUDSON concur.
    Report per Rule 30(e).

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