An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 03-960

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

ALAN STONE EXCAVATING, INC.,
            Plaintiff,
v .                         Chatham County
                            No. 02 CVS 381
JONES BROS., INC., SHIPMON
TRUCKING SERVICES, INC., and
FIREMAN'S FUND INSURANCE
COMPANY,
            Defendants.
_____________________________

JONES BROS., INC., and
FIREMAN'S FUND INSURANCE
COMPANY,
            Third-Party Plaintiffs,

    v.

NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION,
            Third-Party Defendant.

    Appeal by defendant Shipmon Trucking Services, Inc. from judgment entered 1 May 2003 by Judge E. Lynn Johnson in Superior Court in Chatham County. Heard in the Court of Appeals 22 April 2004.

    Smith, Debnam, Narron, Wyche, Saintsing & Myers, L.L.P., by Caren D. Enloe and James D. Dill, for plaintiff-appellee Alan Stone Excavating, Inc.

    Vernon, Vernon, Wooten, Brown, Andrews & Garrett, P.A., by Benjamin D. Overby, for defendant-appellant Shipmon Trucking Services, Inc.

    HUDSON, Judge.

    In the Winter of 2000-2001, the North Carolina Department of Transportation contracted with defendant Jones Bros., Inc.(“Jones”) to widen U.S. Highway 15-501 in Chatham County, North Carolina (“the Project”). Jones subcontracted part of the work to defendant Shipmon Trucking Service, Inc, (“Shipmon”), who, in turn, subcontracted part of the clearing and debris removal work to plaintiff Alan Stone Excavating, Inc. (“Stone”). Stone last furnished labor and/or services under the contract on 31 August 2001.
    On 14 June 2002, Stone filed suit to recover the balance owed by Shipmon under the subcontract. Subsequent to a settlement with defendant Jones, Stone reduced its claim against Shipmon to $58,765.00. After a hearing, on 21 April 2003, the trial court granted Stone's motion for summary judgment. Shipmon appeals.
    According to the subcontract between Shipmon and Stone, payment was to be made within 30 days of the date of invoice. As of 6 November 2001, $88,765.00 was past due and owing to Stone for labor and services. On 6 November 2001, Shipmon acknowledged this balance in a memo signed by representatives of both parties, as follows:
    This is to confirm that of $322,724.00 Shipmon Trucking Services Inc. has a balance of $88,765.00 this will be paid in installments until balance is paid to Alan Stone Excavations.
    Between 6 November 2001 and 18 March 2002, Stone received no payments from Shipmon. On or about 18 March 2002, 10 April 2002, and 20 August 2002, Shipmon sent payments to Stone in the amount of $100.00 each. Stone did not negotiate any of these payments, and returned the checks to Shipmon. Shipmon also contends that a $500.00 payment was made on or about 6 June 2002, but Stonecontends that he did not receive this payment.
    On appeal, Shipmon argues that the 6 November 2001 memo modified the original contract to provide that Shipmon would pay Stone in installments until the balance owed was satisfied. For the following reasons, we affirm the trial court.
    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).
    “Parties to a contract may by mutual consent agree to change its terms . . . .But to be effective as a modification, the subsequent agreement, whatever its form and however evidenced must possess all the elements necessary to form a contract.” Tile and Marble Co. v. Construction Co., 16 N.C. App. 740, 741-42, 193 S.E.2d 338, 339-40 (1972). “As a general matter, a contract must be sufficiently definite in order that a court may enforce it.” Brooks v. Hackney, 329 N.C. 166, 170, 404 S.E.2d 854, 857 (1991). “Furthermore, to be binding, the terms of a contract must bedefinite and certain or capable of being made so; the minds of the parties must meet upon a definite proposition.” Elliott v. Duke University, 66 N.C. App. 590, 596, 311 S.E.2d 632, 636, disc. review denied, 311 N.C. 754, 321 S.E.2d 132 (1984).
    In Lamp Co. v. Capel, 45 N.C. App. 105, 262 S.E.2d 368, cert. denied, 300 N.C. 197, 269 S.E.2d 617 (1980), defendant wrote plaintiff a letter containing the following language:
    Although the above amount was purchased by the corporation and I am not personally liable, I did inform Marvel Lamp Company that I would try to pay off this balance myself by paying what I could in installments as it [is] impossible for me to pay the complete balance due.
Id. at 107, 262 S.E.2d at 369. Plaintiff sued, alleging that the letter amounted to a promise to pay a past-due account. This Court held that the letter did “not establish what amount the defendant would pay plaintiff, the date payment would be made, or the event that would determine when payment would be due,” and that the “letter is so vague and indefinite that the writer's intentions are insufficient to support a cause of action.” Id. at 107-08, 262 S.E.2d at 370. This Court affirmed summary judgment for defendant.
    Here as well, the 6 November 2001 memo lacks the essential terms of the amount of the payments, their dates, or what would determine when payments would become past due. The letter merely states that the “balance of $88,765.00 . . . will be paid in installments until balance is paid . . ..” Thus, we hold that the letter was too vague and indefinite to stand as a modification of the parties' original contract, and summary judgment for Stone was proper.    Affirmed.
    Judges McCULLOUGH and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***