An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-9

NORTH CAROLINA COURT OF APPEALS

Filed: 20 April 2004

ROBERT G. SNYDER,
        Plaintiff,

v .                         Wake County
                            No. 02 CVS 2873
ROBERT T. HEDRICK,
        Defendant.

    Appeal by plaintiff and defendant from order and judgment entered 17 June 2002 by Judge Donald W. Stephens in the Superior Court in Wake County. Heard in the Court of Appeals 17 March 2004.

    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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