ROBERT G. SNYDER,
Plaintiff,
v
.
Wake County
No. 02 CVS 2873
ROBERT T. HEDRICK,
Defendant.
Wyrick, Robbins, Yates & Ponton, L.L.P., by Joseph H. Nanney,
Jr. and Kathleen A. Naggs, for plaintiff.
Robert T. Hedrick, attorney at law, pro se defendant.
HUDSON, Judge.
This case concerns an attempted land sale. On 5 March 2002,
plaintiff-appellant Robert G. Snyder (“Snyder”) filed a Notice of
Lis Pendens, followed on 25 March 2002 by a complaint for specific
performance and damages. On 4 April 2002, defendant-appellant
Robert Hedrick (“Hedrick”) filed an answer and counterclaims for
slander of title and punitive damages, as well as a Motion to
Dismiss Lis Pendens. Snyder filed a reply to the counterclaims on
8 May 2002, and Hedrick moved for summary judgment with a
supporting affidavit on 29 May 2002. The court heard the motions
13 June 2002 and dismissed all claims. Snyder and Hedrick appeal. Snyder and Hedrick entered into a written contract for the
Purchase and Sale of Real Property (“the contract”) dated 11
October 2000 for a parcel of land in Wake County owned in part by
Hedrick and in part by his mother, Gena W. Hedrick (“Mrs.
Hedrick”). Hedrick had a Power of Attorney for Mrs. Hedrick
recorded with the Wake County Register of Deeds. The contract
contained conditions precedent, including requirements that
Snyder's subdivision plan for the property be approved by the City
of Raleigh and that “[s]eller shall cooperate fully with Buyer” in
his efforts to seek that approval. The contract further provided
that “[i]f the conditions precedent have not all been waived by
Buyer or satisfied and met within one (1) year from the date
hereof, either Buyer or Seller may declare this Contract null and
void.”
After executing the contract, Snyder and Hedrick worked
together to have plans for the proposed subdivision submitted to
Raleigh, but those plans were not approved. Although the parties
continued to discuss the matter, no subdivision plan was approved
in the year following the execution of the contract. Mrs. Hedrick
died 10 October 2001, at which time Hedrick's Power of Attorney for
her ended. Snyder never waived the conditions precedent contained
in the contract. In a letter dated 8 November 2001, Hedrick
discussed difficulties with the sale and concluded by stating:
If you are ready to close, which you have
indicated to me on two recent occasions that
you are, then I can see no reason why you
would have any such objections. If you are
not ready to close then we can terminate the
contract and the deposit would be refunded toyou. I would like for you to advise as to a
date on which you will close within in the
next thirty days and if not, then under terms
of the contract it will be terminated.
Snyder sent Hedrick an email on 29 January 2002 which stated
that he was “awaiting receipt of the change in terms agreeable to
you and your family so we may proceed with a closing.” Hedrick
responded with another email that day stating “At such time as I am
in a position to extend a proposal on terms that the property could
be closed then I will let you know. I am not in a position to do
so at this time.”
On 7 February 2002, Snyder's counsel sent Hedrick a letter
stating that Snyder was “ready, willing and able to close the
Contract for purchase.” Hedrick responded by letter dated 8
February 2002, stating that “Mr. Snyder is well aware that we are
not able to close on the terms of the original contract.” Hedrick
refered to the expiration of his power of attorney and the
involvement of additional family members in decisions involving the
property following his mother's death on 10 October 2001. Finally,
in a letter to Snyder's counsel dated 21 February 2002, Hedrick
stated
I had told him [Snyder] that if he did not put
this in a position to close that under the
terms of the contract it would be terminated.
If you and he do not have a clear
understanding of those terms then I will make
it specific. The contract is terminated.
(emphasis in original).
Snyder contends that the court erred in granting summary
judgment in favor of Hedrick on Snyder's claims for specificperformance and damages, and in dismissing Snyder's amended notice
of lis pendens. For the reasons discussed below, we disagree and
affirm the court's judgments.
The standard of review on appeal of a grant of summary
judgment is well established:
Summary judgment is proper 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) (2003) (emphasis
added). A party moving for summary judgment
satisfies its burden of proof (1) by showing
an essential element of the opposing party's
claim is nonexistent or cannot be proven, or
(2) by showing through discovery that the
opposing party cannot produce evidence to
support an essential element of his or her
claim. Once the movant satisfies its burden
of proof, the burden then shifts to the
non-movant to set forth specific facts showing
there is a genuine issue of material fact as
to that essential element.
Belcher v. Fleetwood Enters., __ N.C. App. __, __, 590 S.E.2d 15,
18 (2004) (internal citations omitted). Snyder argues that it was
error for the court to grant summary judgment to Hedrick because
genuine issues of material fact remain. We disagree.
Snyder first contends that there remain genuine issues of
material fact regarding whether the contract was terminated by the
actions of either party. Specifically, Snyder argues that
Hedrick's indication that he would continue to discuss finalizing
the sale of the property, as mentioned above in the 8 November
letter and subsequent emails, constituted a waiver of the
contract's termination provision as well as of any provision whichmight have caused the contract to terminate one year after its
execution. Snyder cites case law holding that “oral
representations and assurances by defendant to plaintiff of
defendant's willingness to perform subsequent to [the specified
closing date] indicated an intent on defendant's part to waive the
[date] and further extend the time in which the parties could
perform.” Fletcher v. Jones, 314 N.C. 389, 394, 333 S.E.2d 731,
735 (1985).
However, Fletcher concerned the waiver of a provision
specifying a closing date, not the waiver of a provision which
would allow either party to terminate the contract if conditions
precedent were not met within one year. The contract at issue
here, unlike that in Fletcher, contains no provision automatically
terminating the contract. Rather, the termination provision here
implicitly recognizes the possibility that discussion and action in
an effort to close on the property could continue for more than one
year. It simply provides an option for either party to terminate
the contract after one year if the conditions precedent were not
then satisfied. This termination provision thus was not
automatically waived merely because the parties continued to
discuss the possibility of closing after one year.
There is no dispute in the record that the condition precedent
of having the City of Raleigh approve the subdivision plan had not
been met or waived as of 10 October 2001, and from that date
onward, either Hedrick or Snyder was free to terminate the
contract. Hedrick's 7 November 2001 letter made clear that unlessSnyder “advise[d] as to a date on which [Snyder could] close within
in the next thirty days . . . then under terms of the contract it
will be terminated.” We see no evidence that Snyder advised
Hedrick of a closing date within thirty days of 7 November; the
contract was thus terminated when that period expired. The later
communications between the parties confirm Hedrick's contention
that the contract had terminated when Snyder was not able to close
within thirty days, although the parties continued negotiation
about terms for a contract of sale. The emails between Snyder and
Hedrick in January 2002 indicate that by that date, each was
proceeding with discussions about the property with an
understanding that no closing was possible under the terms of the
original contract. Snyder stated he was “awaiting receipt of the
change in terms agreeable to you and your family so we may proceed
with a closing” and Hedrick responded that he was not “in a
position to extend a proposal on terms that the property could be
closed.” Together, the letter and emails establish that the
contract had been terminated by Hedrick before Snyder's offer to
close on 7 February 2002.
Snyder next argues that the court erred by granting summary
judgment on his claim for damages because genuine issues of
material fact remain relating to Hedrick's actions in attempting to
terminate the contract. Specifically, Snyder contends that Hedrick
should be equitably estopped from terminating the contract because
Snyder detrimentally relied on Hedrick's representations that theparties could possibly close on the property using an “exempt”
subdivision plan. For the reasons discussed below, we disagree.
The elements of equitable estoppel relating to the party
estopped are:
(1) conduct which amounts to a false
representation or concealment of material
facts, or at least, which is reasonably
calculated to convey the impression that the
facts are otherwise than, and inconsistent
with, those which the party afterwards
attempts to assert; (2) intention or
expectation that such conduct shall be acted
upon by the other party, or conduct which at
least is calculated to induce a reasonably
prudent person to believe such conduct was
intended or expected to be relied and acted
upon; and (3) knowledge, actual or
constructive, of the real facts.
Wade S. Dunbar Ins. Agency, Inc. v. Barber, 147 N.C. App. 463, 470,
556 S.E.2d 331, 336 (2001). Snyder makes no allegation in his
brief that Hedrick knowingly made false representations to him in
order to induce Snyder to take any action, and the record of
communication discussed in detail above does not support any such
allegation. Instead, Snyder asserts in his brief that he
detrimentally relied on Hedrick's comments about the possibility of
closing on the basis of an exempt subdivision plan. Those comments
come in the 8 November 2001 letter:
It is my opinion that having an exempt
subdivision recorded and closing on the
property would then allow you to proceed with
subdivision . . . .It should result in a
subdivision plan being quickly approved by the
City because they only have one person to deal
with.
Hedrick goes on to say that, in line with this strategy, he planned
to withdraw the original subdivision plans submitted to the cityand concludes with the language quoted earlier about the time frame
for closing. Nothing in this letter nor in the January emails
between the parties supports the contention that Hedrick made any
false representations to Snyder, much less false representations
with the intent of inducing Snyder to rely on them.
Snyder also claims it was error for the court to dismiss his
notice and amended notice of lis pendens. Because we hold that the
court properly granted summary judgment in favor of Hedrick, we
also affirm the court's dismissal of Snyder's notice and amended
notice of lis pendens.
In his cross-appeal, Hedrick argues that the court erred in
granting summary judgment for Snyder on Hedrick's counterclaims
against him. We disagree.
Hedrick contends that Snyder caused a slander on title to all
of the property described in the notice of lis pendens filed 5
March 2002. Snyder's original notice was clearly in error, with
the description of property covering all that owned by the Hedrick
family in the area, rather than the smaller property at issue in
the case. Snyder did not file an amended notice correcting this
error until 12 June 2002, more than three months later. Hedrick
alleges that the error in the original notice was made
deliberately, wantonly and maliciously for an unlawful purpose, but
fails to explain this characterization. Hedrick cites a case
stating that a plaintiff will be liable for filing “a notice of lis
pendens when, if the facts set forth in defendants' affidavit be
accepted as true, plaintiff had no lawful grounds . . . to supportthe filing of a notice of lis pendens.” Austin v. Wilder, 26 N.C.
App. 229, 234, 215 S.E.2d 794, 797 (1975). However, in Austin, the
plaintiff never corrected its overreaching lis pendens by amendment
as Snyder did here. Nor is there any evidence that Snyder “filed
the notice of lis pendens in order to coerce defendant[] and to
accomplish an unlawful purpose for which lis pendens was never
intended,” as occurred in Austin. Id. Thus, the court's grant of
summary judgment to Snyder on Hedrick's counterclaims was proper.
Affirmed.
Judges MARTIN and GEER concur.
Report per Rule 30(e).
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