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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
KENNETH W. WOLFE, Plaintiff v. ALLENE CURRIE VILLINES, MILDRED
CURRIE JEFFRIES, JAMES WILLIAM CURRIE, INEZ CURRIE CORBETT and
OZZIE M. CURRIE, Defendants
Filed: 5 April 2005
1. Vendor and Purchaser_land sale_sufficiency of description_latent ambiguity
The legal description of property in a land sale agreement was latently ambiguous, and
the trial court erred by granting summary judgment for plaintiff where there was an issue of
material fact as to the precise parcel to be conveyed.
2. Vendor and Purchaser
_land sale_insufficient description_reformation_issue of fact
The trial court erred by reforming a land sale agreement through the selection one of
three surveys drawn from the agreement's general description where the discovery of unknown
improvements on the property created a question of fact. Such actions in equity by the trial
court at the summary judgment stage are not permissible when there are issues of fact.
3. Vendor and Purchaser
_land sale_survey completed late_time not of essence
A land sale agreement was not vitiated by the failure to complete a survey within the
required time where time was not of the essence in the contract. There was no evidence that
plaintiff delayed or tarried in completion of the contract, and the trial court properly found that
the delay was not unreasonable.
Judge TYSON dissenting.
Appeal by defendants from an order entered 11 December 2003 by
Judge Orlando F. Hudson, Jr. in Person County Superior Court.
Heard in the Court of Appeals 17 November 2004.
Hatch, Little & Bunn, L.L.P., by David H. Permar and Elizabeth
T. Martin, for plaintiff-appellee.
Ramsey, Ramsey & Long, by James E. Ramsey, for defendant-
Allene Villines, Mildred Jefferies, James William Currie, Inez
Corbett, and Ozie M. Currie (defendants) appeal from an order
entered 11 December 2003 granting partial summary judgment toKenneth W. Wolfe (plaintiff) in an action for specific
performance of a land sale agreement. Defendants raise two
assignments of error, contending there were genuine issues of
material fact as to: (1) whether the description of the property
in the land sale agreement was sufficient to satisfy the statute of
frauds, and (2) whether the land sale agreement was terminated due
to plaintiff's failure to complete the agreement's requirements
prior to the closing date. As we find there was a material issue
of fact as to the description of the property, we reverse the grant
of summary judgment.
On 6 December 2001, plaintiff and defendants entered into an
Offer to Purchase and Contract (Offer) a plot of land belonging
to defendants that was adjacent to plaintiff's property. The Offer
described the plot to be purchased as + or - 25ac to be determined
by a survey for property behind Mr. Wolfe's Property, to run to the
first field[,] and stated that it was a portion of the property
listed in tax map 21, Lot 23, in Person County. The Offer did not
specify who was responsible for obtaining the survey, but did
provide that the buyer would pay for the cost. The Offer stated
that the purchase price for the property was $2,200.00 per acre and
that the closing should take place on or before 31 January 2002,
and was signed by all parties.
A surveyor, Neil Hamlett (Hamlett) was hired to survey the
property by Tommy Bowes (Bowes), the real estate agent for both
parties. Hamlett discovered that a house existed on the proposed
plot and was instructed by Bowes to cut out the portion of theproperty containing the house from the surveyed land. Due to
inclement weather, Hamlett did not return to complete the survey
until March 2002. He was informed by defendants at that time to
not complete the survey, as the time for closing had expired.
Hamlett reported that three possible tracts could be surveyed in
the given area, of 15.9 acres, 16.9 acres, or 20.8 acres,
Plaintiff filed a complaint seeking specific performance of
the contract on 9 July 2003, alleging that defendants had
repudiated the Offer by refusing to allow the land to be surveyed.
Defendants counterclaimed that the Offer was unenforceable as it
violated the statute of frauds and the required survey was not
completed before closing. Both parties moved for summary judgment.
On 11 December 2003, the trial court entered an order denying
defendants' motion and partially granting plaintiff's motion for
summary judgment, ordering specific performance of the contract.
Defendants appeal from this order.
We first address whether the appeal from the trial court's 11
December 2003 order entitled partial summary judgment is timely.
Ordinarily, a partial summary judgment, because it does not
completely dispose of the case, is interlocutory, and cannot be
immediately appealed. See Liggett Group v. Sunas
, 113 N.C. App.
19, 23, 437 S.E.2d 674, 677 (1993). Here however, the trial
court's order fully disposed of the case by ordering specific
performance of the land contract, and retained jurisdiction only inthe event that good title to the property in question could not be
conveyed. Indeed, plaintiff, the appellee in this case, notes in
his brief that it is apparent . . . that the order is, in fact,
not a partial summary judgment because no further parties or claims
are unresolved. (Emphasis omitted.) Despite its title of partial
summary judgment, the order appears to not be interlocutory, as it
resolves all claims raised to the court, and review of the matter
would therefore be neither fragmentary nor premature.
The dissent contends that a question remains, however, as to
whether the order is final or interlocutory, as the trial court did
not certify this appeal pursuant to N.C.R. Civ. P. 54(b) and did
retain jurisdiction for a limited purpose. We therefore, in the
interest of judicial economy, and to prevent manifest injustice to
both parties as a complete and final remedy has been ordered by the
trial court, elect pursuant to Rule 2 of the North Carolina Rules
of Appellate Procedure to treat plaintiff's appeal as a petition
for a writ of certiorari and grant the petition. See
P. 2, Kimzay Winston-Salem, Inc. v. Jester
, 103 N.C. App. 77, 79,
404 S.E.2d 176, 177 (1991).
Defendants contend that the trial court erred in finding there
was no genuine issue of material fact as to whether the legal
description of the property in the Offer was insufficient to meet
the statute of frauds.
(See footnote 1)
We agree. We first note the appropriate standard of review. Summary
judgment is properly granted if 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).
Our statute of frauds requires that contracts to convey land
shall be void unless said contract, or some memorandum or note
thereof, be put in writing and signed by the party to be charged
therewith, or by some other person by him thereto lawfully
authorized. N.C. Gen. Stat. § 22-2 (2003). The Supreme Court of
North Carolina has held that:
A valid contract to convey land, therefore,
must contain expressly or by necessary
implication all the essential features of an
agreement to sell, one of which is a
description of the land, certain in itself or
capable of being rendered certain by reference
to an extrinsic source designated therein.
Kidd v. Early
, 289 N.C. 343, 353, 222 S.E.2d 392, 400 (1976).
An agreement for the sale of land violates the statute of
frauds as a matter of law if it is patently ambiguous, that is, if
it leaves the subject of the contract, the land, in a state of
absolute uncertainty and refers to nothing extrinsic by which the
land might be identified with certainty. House v. Stokes
, 66 N.C.
App. 636, 638, 311 S.E.2d 671, 673 (1984). However a descriptionis latently ambiguous if it is insufficient, by itself, to
identify the land, but refers to something external by which
identification might be made. Id
. at 638, 311 S.E.2d at 674.
In Kidd v. Early
, the Court found that the inclusion of a
requirement of a survey to determine the precise boundaries of a
parcel, in a contract for purchase of a portion of land from a
larger tract, saved the description from patent ambiguity. Kidd
289 N.C. at 356, 222 S.E.2d at 402. Although the option in Kidd
required the seller to furnish the survey, the Court in Kidd
on cases from a number of jurisdictions which also permitted the
buyer to control the survey. Id.
at 354-56, 222 S.E.2d at 401-02.
Here, the description in the Offer identified the parcel
generally through a tax map designation and as the Lessie Bradsher
Estate located behind plaintiff's property. Although the tract
identified encompassed more than twenty-five acres, the description
further specified that the exact amount of + or - 25 acres would be
determined by a survey of the property. Thus, as the contract
provided an extrinsic means for identification of the precise
property to be sold, we find the description was latently, rather
than patently, ambiguous and therefore did not violate the statute
of frauds as a matter of law.
A latently ambiguous description requires admission of
extrinsic evidence to explain or refute the identification of the
land in question, and thus creates a potential issue of material
fact which must be determined before the trial court can conclude
as a matter of law that the statute of frauds has been met. SeeHouse
, 66 N.C. App. at 639, 311 S.E.2d at 674. Here, Hamlett's
affidavit showed the surveyor was directed by Bowes to discard a
portion of the parcel after buildings were discovered upon it, and
further directed to move the northern line of the property. These
directions resulted in the production of three potential surveys of
the property to be conveyed under the contract. Unlike in Byrd v.
, 252 N.C. 724, 727-28, 114 S.E.2d 715, 718-19 (1960), where
two different survey results were produced but the evidence showed
the parties mutually agreed on one of the surveys, here, a material
issue of fact remained as to which of the proposed descriptions, if
any, reflected the true intention of the parties. Although we note
that the purpose of the statute of frauds is to guard against
fraudulent claims supported by perjured testimony rather than to
allow defendants to evade an obligation based on a contract fairly
and admittedly made[,] House
, 66 N.C. App. at 641, 311 S.E.2d at
675, sufficient extrinsic evidence must be adduced to identify the
parcel of land intended to be conveyed by the parties and remove
the latent ambiguity in the contractual description for it to be
enforceable. As there exists an issue of material fact as to both
the precise parcel to be conveyed, as a result of the discovery of
the buildings, and as to whether the contract is void for latent
ambiguity in the description, we therefore reverse the trial
court's grant of summary judgment.
The dissent contends that although the evidence presented to
the trial court indicated the surveyor had determined three
possible tracts of land could be drawn from the general landdescription, the trial court properly acted in equity to reform the
contract and order defendants to convey the smallest of the three
parcels. Such actions in equity by the trial court at the summary
judgment stage of adjudication are not permissible when issues of
material fact exist. In Dettor v. BHI Property Co.
, 324 N.C. 518,
379 S.E.2d 851 (1989), our Supreme Court considered another
disputed land contract. In Dettor
, a contract for the sale of land
included a description of the property to be sold as '+
and highlighted in yellow on Exhibit A attached hereto' and
further that '[t]he property shall be surveyed by a North Carolina
Registered Surveyor at the expense of the Sellers . . . . Property
is to have approximately 12 acres as shown on Exhibit A attached
at 519-20, 379 S.E.2d at 852. The survey conducted
revealed that the property contained 12.365 acres, however, after
closing, a mistake in the calculations was discovered which showed
the property actually contained 17.147 acres. Id.
at 520, 379
S.E.2d at 852.
An action was brought for reformation of the deed
and for specific performance to pay for the excess acreage. Both
parties moved for summary judgment. Id.
at 520-21, 379 S.E.2d at
852. The trial court granted partial summary judgment on the
grounds the contract was consummated under a mutual mistake of
(See footnote 2)
but declined to award specific performance as inequitable.
at 521, 379 S.E.2d at 852. The trial court instead created a
unique remedy, described as a reformation 'in effect,' whichappointed a triumvirate of commissioners to designate 4.782 acres
to be carved out of the disputed tract and reconveyed to
The Supreme Court overturned a decision by this
Court affirming the trial court, on the grounds that when an issue
of material fact as to the acreage intended to be transferred by
the parties existed, the question must be resolved by the fact
finder, and a grant of summary judgment was inappropriate. Dettor
324 N.C. at 522-23, 379 S.E.2d at 853.
Similarly here, a question of material fact was created by the
discovery of unknown improvements on the property, resulting in a
latent ambiguity in the land description. The trial court
improperly concluded that no material issue of fact existed, yet
selected one of three surveys presented to the court as the remedy.
As a question of material fact existed, we find the trial court
erred in reforming the contract at the summary judgment stage.
Defendants next contend there was a genuine issue of material
fact as to whether the Offer was terminated due to plaintiff's
failure to complete the Offer's requirements, including a survey of
the parcel of property, prior to the closing date. We disagree.
In Taylor v. Bailey
, 34 N.C. App. 290, 237 S.E.2d 918 (1977),
this Court noted that when the only reference to time in the
contract was as to a proposed closing date, and the conditions
included a survey and title opinion of the property, time was not
of essence to the agreement and upheld the finding that the failure
to settle by the stated date did not vitiate the contract. SeeTaylor
, 34 N.C. App. at 293-94, 237 S.E.2d at 920. In Taylor
surveyor was hired in a timely fashion, but a problem with the
title was discovered which delayed closing. Id
. at 294, 237 S.E.2d
at 920. The Court affirmed the order of specific performance of
the contract however, as there was no evidence that 'plaintiff
tarried or delayed . . . and . . . stood ready, willing and able to
complete the terms and conditions of said contract[.]' Id
294-95, 237 S.E.2d at 921 (citation omitted).
Here, the Offer, like in Taylor
, stated closing should occur
on or before 1-31-2002, but included the condition of a survey
paid for by plaintiff. As time was not of the essence in the
contract, the failure to complete the required survey and close by
31 January 2002 does not vitiate the contract. The question rather
is one of the reasonableness of the time to complete the contract.
See Fletcher v. Jones
, 314 N.C. 389, 393, 333 S.E.2d 731, 734
(1985). What is a 'reasonable time' in which delivery must be
made is generally a mixed question of law and fact, and, therefore,
for the jury, but when the facts are simple and admitted, and only
one inference can be drawn, it is a question of law. Colt v.
, 190 N.C. 169, 174, 129 S.E. 406, 409 (1925).
Evidence presented in the affidavits of Bowes and Hamlett show
that the surveyor was hired in a timely fashion in December 2001 by
the agent of both parties, that a problem arose with the survey
when the presence of a building was discovered within the given
parameters, and that as the Offer specified the contract was for
land only, the surveyor was instructed by the agent to return toresurvey the property without the building. Further, Hamlett
states in his corrected affidavit on 17 November 2003 that he was
delayed from returning to complete the survey until March 2002 as
a result of the changes, and was told at that time not to complete
the survey by defendants. As there is no evidence that plaintiff
delayed or tarried in completion of the contract, or other
disputed material fact, the trial court properly found the delay of
a few weeks in completion of the survey was not unreasonable as a
matter of law.
As we find that a material issue of fact exists as to the land
description, we therefore reverse the trial court's grant of
Judge LEVINSON concurs.
Judge TYSON dissents in a separate opinion.
TYSON, Judge dissenting.
The majority's opinion reverses the trial court's grant of
partial summary judgment in plaintiff's favor and holds genuine
issues of material fact exist concerning: (1) whether the Offer is
void for latent ambiguities with the property description; and (2)
which parcel should be conveyed. This appeal is interlocutory and
defendants failed to comply with the North Carolina Rules of
Appellate Procedure and should be dismissed. I respectfully
I. Interlocutory Appeals
Interlocutory appeals are those 'made during the pendency of
an action which do not dispose of the case, but instead leave it
for further action by the trial court to settle and determine the
entire controversy.' Sharpe v. Worland, 351 N.C. 159, 161, 522
S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71,
73, 511 S.E.2d 2, 4 (1999)); accord Veazey v. Durham, 231 N.C. 357,
362-63, 57 S.E.2d 377, 381-82, reh'g denied, 232 N.C. 744, 59
S.E.2d 429 (1950).
A grant of partial summary judgment, because
it does not completely dispose of the case, is an interlocutory
order from which there is ordinarily no right of appeal. Liggett
Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993).
In addition, [g]enerally, orders denying motions for summary
judgment are not appealable. Hill v. Smith, 38 N.C. App. 625,
626, 248 S.E.2d 455, 456 (1978); N.C. Gen. Stat. § 1-277 (2003).
It is undisputed that the 11 December 2003 judgment from which
defendants appeal is interlocutory
because it was a Partial
Summary Judgment that partially granted plaintiff's motion for
summary judgment, denied defendants' motion for summary judgment,
and did not dispose of the entire case. See Carriker, 350 N.C. at
73, 511 S.E.2d at 4
The trial court specifically ordered that it
shall retain jurisdiction for the purpose of determining what
damages, if any, . . . [are] appropriate . . .
See Waters v.
Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (an
order is interlocutory when issues remain and require further
adjudication before a final decree is issued). Here, there is no
risk of inconsistent verdicts to trigger a preemptive review bythis Court. CBP Resources, Inc. v. Mountaire Farms of N.C., Inc.,
134 N.C. App. 169, 172, 517 S.E.2d 151, 154 (1999) (the issue of
liability has been determined, [and] the only remaining issue is
that of damages and there is no danger of inconsistent verdicts);
Schuch v. Hoke, 82 N.C. App. 445, 446, 346 S.E.2d 313, 314 (1986)
(an order granting [a] motion for partial summary judgment on the
issue of liability, reserving for trial the issue of damages, [is]
an interlocutory order not subject to immediate appeal) (citing
Industries, Inc. v. Insurance Co., 296 N.C. 486, 492, 251 S.E.2d
443, 448 (1979)).
A. Appellate Review of Interlocutory Judgments
Generally, there is no right of immediate appeal from an
interlocutory judgment. Travco Hotels v. Piedmont Natural Gas Co.,
332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992).
order may only be considered on appeal where either: (1)
certification by the trial court for immediate review under N.C.
Gen. Stat. § 1A-1, Rule 54(b) (2003); or (2) a substantial right
of the appellant is affected.
Tinch v. Video Industrial Services,
347 N.C. 380, 381, 493 S.E.2d 426, 427 (1997) (citing Bailey v.
Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)); N.C. Gen.
1-277(a) (2003); N.C. Gen. Stat. §
7A-27(d) (2003). Here,
the trial court did not certify
its partial summary judgment for
immediate review under Rule 54(b)
and defendants have failed to
show a substantial right that will be lost absent immediate
review. See Watts v. Slough, 163 N.C. App. 69, 72, 592 S.E.2d 274,
276 (2004) (interlocutory appeal dismissed due to the trial courtnot certifying its order under Rule 54(b) and the appellant's
failure to assert a substantial right that would be adversely
affected without immediate review).
1. Rules of Appellate Procedure
Rule 28(b)(4) of the North Carolina Rules of Appellate
Procedure requires the appellant's brief to include a statement of
the grounds for appellate review. N.C.R. App. P. 28(b)(4) (2004);
see Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101,
105-06, 493 S.E.2d 797, 800 (1997). If the appeal is
interlocutory, the statement of the grounds must contain
sufficient facts and argument to support appellate review on the
grounds that the challenged judgment either affects a substantial
right, or was certified by the trial court for immediate appellate
review. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377,
379, 444 S.E.2d 252, 253 (1994). It is the appellant's duty to
provide this Court the grounds to warrant appellate review. Id.
Defendants neither included a statement of the grounds for
nor addressed the interlocutory nature of their
appeal. Further, defendants do not assert in their arguments any
substantial rights that will be adversely affected if this Court
does not immediately review the trial court's order.
Rules of Appellate Procedure are mandatory and failure to
observe them is grounds for dismissal of the appeal. State v.
Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780 (1982), cert. denied,
__ N.C. __, 342 S.E.2d 907 (1986). This appeal should be dismissed
due to both its interlocutory nature and defendants' failure toassert the substantial rights that will be adversely affected
without this Court's immediate review in violation of the North
Carolina Rules of Appellate Procedure
II. Rule 2
The majority's opinion agrees the appeal is interlocutory and
that defendants failed to comply with the appellate rules. Yet, it
invokes Rule 2 of the North Carolina Rules of Appellate Procedure
to purportedly review the merits of defendants' claims. Rule 2
To prevent manifest injustice to a party, or
to expedite decision in the public interest,
either court of the appellate division may,
except as otherwise expressly provided by
these rules, suspend or vary the requirements
or provisions of any of these rules in a case
pending before it upon the application of a
party or upon its own initiative, and may
order proceedings in accordance with its
N.C.R. App. P. 2 (2004).
Our Supreme Court stated in Steingress v. Steingress that
Rule 2 relates to the residual power of our appellate courts to
consider, in exceptional circumstances, significant issues of
importance in the public interest, or to prevent injustice which
appears manifest to the Court and only in such instances. 350
N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (emphasis supplied)
(citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362
(1986)). This Court has repeatedly held that 'there is no basis
under Appellate Rule 2 upon which we should waive plaintiff's
violations of Appellate Rules . . . .' Holland v. Heavner, 164N.C. App. 218, 222, 595 S.E.2d 224, 227 (2004) (quoting Sessoms v.
Sessoms, 76 N.C. App. 338, 340, 332 S.E.2d 511, 513 (1985)).
My review of the entire record fails to disclose any
exceptional circumstances, significant issues, or manifest
injustice to warrant suspension of the Appellate Rules. Our
precedents do not allow use of Rule 2 to reach the merits of this
appeal. I vote to dismiss.
III. Property Description
I also disagree with the majority's holding that since the
survey was never completed that genuine issues of fact exist: (1)
concerning which of the parcels the parties intended to convey; and
(2) whether the Offer is potentially void for the latently
ambiguous property description.
In Kidd v. Early, our Supreme Court determined that a property
description that references a future survey satisfies the Statute
of Frauds. 289 N.C. 343, 222 S.E.2d 392 (1976); see also N.C. Gen.
Stat. § 22-2 (2003). The property description included in the
Offer is latently ambiguous, requiring parol evidence to specify
its precise location. See Bradshaw v. McElroy, 62 N.C. App. 515,
516, 302 S.E.2d 908, 910 (1983) (citing Lane v. Coe, 262 N.C. 8,
13, 136 S.E.2d 269, 273 (1964)).
Defendants failed to allow the surveyor to complete the survey
to remove the latent ambiguity and make the property description
definite. Kidd, 289 N.C. at 357, 222 S.E.2d at 402. Here,
Hamlett's survey divulged the existence of buildings located on the
property to be conveyed during initial field work. Upon reportingthis discovery to Broker Bowes, Hamlett was instructed to remove
the improvements from the parcel to be conveyed and move the
northern boundary line. The result was a preliminary survey
including three possible tracts of land, ranging from 15.9 to 20.8
acres. Defendants wrongly refused Hamlett access to the property
to complete the final survey, forcing plaintiff to instigate this
action and seek specific performance, an equitable remedy.
Based on the pleadings, exhibits, affidavits, memoranda of
law, admitted testimony, and oral arguments, the trial court ruled
there is no genuine issue as to any material
facts and that the Plaintiff is entitled to
specific performance of the December 6, 2001
Offer to Purchase and Contract entered into
between the Plaintiff and the Defendants. It
is further determined that as a matter of
equity, the contract shall be reformed to
reflect that the parcel to be conveyed
pursuant to the terms of the contract is that
15.9 [+-] acres excluding the 40,000 square
foot outparcel containing the house and out
building . . . .
(Emphasis supplied). The trial court, sitting as a Court of
Equity, in its discretion and in light of all the evidence,
reformed the contract and ordered defendants to convey the smallest
of the three possible parcels, 15.9 acres, despite the Offer
calling for a conveyance of twenty-five acres, more or less. It
further ordered defendants to provide Hamlett access to the
property to finalize the survey of the 15.9 acre tract.
It is apparent that the potential issues of material fact that
the majority's opinion cites in reversing the trial court's order
result from defendants' breach of the Offer. The majority's
opinion acknowledges that [t]he statute of frauds was designed toguard against fraudulent claims supported by perjured testimony; it
was not meant to be used by defendants to evade an obligation based
on a contract fairly and admittedly made. House v. Stokes, 66
N.C. App. 636, 641, 311 S.E.2d 671, 675 (1984) (citation omitted).
However, its holding allows defendants to further unfairly delay
plaintiff by approving their breach of the Offer and prolonging the
closing of this matter through their improper actions. '[A] court
of equity may decree specific performance, when it would be a
virtual fraud to allow the defendant to interpose the statute as a
defense and at the same time secure to himself the benefit of what
has been done in performance.' Ebert v. Disher, 216 N.C. 36, 48,
3 S.E.2d 301, 309 (quotation omitted), cert. denied, 216 N.C. 546,
5 S.E.2d 716 (1939).
Defendants do not assert and my review of the record does not
indicate the trial court abused its discretion by sitting as a
court of equity, reforming the contract, and ordering specific
performance. See Harris v. Harris, 50 N.C. App. 305, 313, 274
S.E.2d 489, 493 (this Court's review of a trial court's equitable
remedy is under the abuse of discretion standard), appeal
dismissed, 302 N.C. 397, 279 S.E.2d 351 (1981).
The majority's opinion cites Dettor v. BHI Property Co. as
authority to hold that genuine issues of material fact preclude a
trial court's grant of partial summary judgment. 324 N.C. 518, 379
S.E.2d 581 (1989). Dettor is readily distinguishable from the case
at bar. There, our Supreme Court determined the dispositive issue
concerned whether the parties intended a per-acre sale of land ora contract for approximately twelve acres. Id. at 519, 379 S.E.2d
at 851-52. This issue resulted from a third-party surveyor's
miscalculation of the acreage to be conveyed. Id. at 520, 379
S.E.2d at 852. Based upon each party presenting some plausible
evidence tending to support its interpretation of the contract,
the Court held the contradictions [a]t best . . . raise a material
question of fact. Id. at 522-23, 379 S.E.2d at 853 (emphasis
supplied). The Court concluded that such a determination should be
made by the fact finder. Id.
The materiality of the issue of fact in Dettor is its effect
on the purchase price. See Bank v. Gillespie, 291 N.C. 303, 310,
230 S.E.2d 375, 379 (1976) (issues are material if the facts
alleged would affect the result of the action in the non-movant's
favor). Under the plaintiff/seller's per-acre sale argument in
Dettor, the purchase price should have been increased relative to
the difference in acreage conveyed versus the +/- 12 acres
contracted for. 324 N.C. at 521-22, 379 S.E.2d at 853. The
defendant/purchaser in Dettor argued it did not owe additional
money because the contract was for approximately twelve acres and
it never anticipated that the tract in question might contain
substantially more than twelve acres. Id. at 522, 379 S.E.2d at
853. The outcome of Dettor raised serious financial ramifications
to the losing party based on how the terms of the contract were
interpreted. That outcome is the materiality of the issue of fact
in Dettor. Here, the parties contracted to convey + or - 25 ac. to be
determined by a surveyor for property behind Mr. Wolfe's Property,
to run to the first field at $2200.00 Per Ac. The potential
issues of fact the majority's opinion cites do not result from the
possibility of the appealing party not receiving the benefit of the
bargain as was intended by the Offer. Defendants are receiving the
full purchase price of the Offer. In addition, they are conveying
to plaintiff over nine acres less than the acreage required by the
terms of the Offer. The trial court's order benefits defendants,
The materiality of issues of fact in Dettor is not present
here, as defendants are receiving everything they contracted for,
and more. Plaintiff (the purchaser) did not appeal and has not
complained about the trial court's decision to convey to him over
nine acres less than the Offer called for.
Under the majority's holding, on remand, defendants stand to
lose more than the 15.9 acre tract if the future finder of fact
determines the parties intended a larger parcel to be conveyed by
the Offer. In addition, defendants' motives in pursuing this
appeal are questionable as record evidence shows another
outstanding third-party Offer to purchase defendants' remaining
acreage is pending, contingent upon the outcome of this matter.
IV. Time for Closing
The majority's opinion also states the trial court properly
found that time was not of the essence for the Offer. That
discussion is also unnecessary as this appeal is interlocutory anddefendants failed to satisfy the rules of appellate procedure.
This assignment of error is also not properly before this Court and
should be dismissed.
The trial court, sitting as a court of equity and in its
discretion, properly ordered reformation and specific performance
of the Offer. Defendants' improper breach of the Offer and refusal
to allow the surveyor to complete his work created any potential
issues of fact. This Court should not allow defendants' wrongful
conduct to delay or avoid their contractual obligations.
I vote to dismiss this appeal due to: (1) its interlocutory
nature; (2) no trial court certification; (3) the absence of a
substantial right; and (4) defendants' failure to abide by the
North Carolina Rules of Appellate Procedure. Also, our precedents
do not allow Rule 2 to be used to excuse defendants' failure to
comply with the North Carolina Rules of Appellate Procedure. See
Smith v. R.R.
, 114 N.C. 729, 749-50, 19 S.E. 863, 869 (1894)
(warning that, Looseness of language and dicta
opinions, either silently acquiesced in or perpetuated by
inadvertent repetition, often insidiously exert their influence
until they result in confusing the application of the law, or
themselves become crystallized into a kind of authority which the
courts, without reference to true principle, are constrained to
follow.). I respectfully dissent.
Defendants fail to provide a statement of the grounds for
appellate review, as required by N.C.R. App. P. 28(b)(4), as to
whether this matter appealed constitutes a final judgment whichis properly before this Court. Violation of this rule subjects
defendants' appeal to dismissal. See State v. Wilson
, 58 N.C.
App. 818, 819, 294 S.E.2d 780, 780 (1982). However, as noted
, we deem it appropriate to consider this appeal on its
merits pursuant to N.C.R. App. P. 2.
We note that the order appealed in Dettor
entitled Partial Summary Judgment, but was considered by both
this Court and our Supreme Court.
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