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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.
COUNTY OF JACKSON, Plaintiff, v. JAMES G. NICHOLS and wife,
KIMBERLY DIANE NICHOLS, and KIMBERLY A. NICHOLS, Single,
Filed: 20 December 2005
1. Divorce_property settlement and separation agreement_first refusal
provision_intent not to be bound
The trial court did not err by granting summary judgment for James Nichols where his
former wife sought to enforce a first refusal provision in their separation agreement when the
property in question was to be sold to the county. The separate first refusal agreement
contemplated by the separation agreement was never signed, and the parties had conveyed
parcels to each other covenanting that the properties were free and clear of encumbrances.
2. Appeal and Error_record on appeal_prior court order not included_collateral
estoppel not considered
An assignment of error concerning collateral estoppel was not considered where the prior
court order was not included in the record.
Appeal by defendant Kimberly A. Nichols from order entered 2
December 2004 by Judge Dennis J. Winner in Jackson County Superior
Court. Heard in the Court of Appeals 2 November 2005.
No brief filed for plaintiff-appellee.
Ball Barden & Bell, P.A., by Thomas R. Bell, for defendants-
appellees James G. Nichols and Kimberly Diane Nichols.
Jennifer W. Moore, for defendant-appellant.
Kimberly A. Nichols appeals from order entered granting
summary judgment to James G. Nichols and wife, Kimberly Diane
Nichols. We affirm.
Kimberly A. Nichols and James G. Nichols were married in 1988
and separated on 12 July 2000. The parties subsequently enteredinto a separation and property settlement agreement (separation
agreement) on 13 October 2000. The separation agreement was
incorporated into a decree of absolute divorce filed 10 September
2001 by the Jackson County District Court.
During their marriage, the parties acquired a 4.81 acre parcel
of land from James G. Nichols's father. The separation agreement
provided that James G. Nichols would receive the parcel, excepting
0.87 acres to be conveyed to Kimberly A. Nichols. The separation
agreement also provided that for a period of ten years following
the execution of the separation agreement, neither party could
accept an offer to purchase their parcel without first notifying
the other party and providing an opportunity to purchase the
property on identical terms as the offer they had received. The
separation agreement further provided that if either party sold
their land in violation of the separation agreement, the seller
would be liable to the other party for the purchase price. The
separation agreement stated that an express and distinct right of
first refusal agreement was to be executed on the same date as the
separation agreement. A separate agreement was never executed.
James G. Nichols conveyed his marital interest in the 0.87
acre tract by general warranty deed to Kimberly A. Nichols on 31
October 2000. On 10 November 2000, Kimberly A. Nichols conveyed
her marital interest in the 4.81 acre tract by general warranty
deed to James G. Nichols, excepting the 0.87 acre tract she had
received. On 5 March 2003, Kimberly A. Nichols conveyed the 0.87acre tract to James G. Nichols for paid consideration of
On 14 November 2003, James G. Nichols and wife, Kimberly Diane
Nichols, entered into a contract with the County of Jackson to sell
the entire 4.81 acres of property for 1.5 million dollars. James
G. Nichols did not notify his former wife of the County's offer and
did not first offer the property to her for purchase under the
terms of the separation agreement. Kimberly A. Nichols became
aware of the contract and filed an action in the Jackson County
District Court, seeking to have James G. Nichols ordered to comply
with the terms of the separation agreement. The trial court's
order determined that James G. Nichols failed to notify his former
wife of the offer. James G. Nichols refused to close the sale of
the property with the County of Jackson.
The County of Jackson filed suit in the Jackson County
Superior Court on 3 May 2004 seeking specific performance of the
contract and joined Kimberly A. Nichols as a party in the suit.
Kimberly A. Nichols filed a crossclaim against James G. Nichols,
seeking enforcement of the separation agreement. James G. Nichols
moved for summary judgment on Kimberly A. Nichols's crossclaim.
The trial court granted James G. Nichols's motion for summary
judgment on Kimberly A. Nichols's crossclaim. Kimberly A. Nichols
Kimberly A. Nichols asserts the trial court erred by: (1)
making findings of fact unsupported by admissible evidence; (2)making conclusions of law that are unsupported by findings of fact
and admissible evidence; and (3) concluding that no genuine issue
of material fact exists and that James G. Nichols and Kimberly
Diane Nichols are entitled to judgment as a matter of law on the
III. Summary Judgment
Kimberly A. Nichols contends the trial court erred in granting
James G. Nichols's motion for summary judgment. We disagree.
This Court reiterated our standard of review of the trial
court's grant of summary judgment in Hoffman v. Great Am. Alliance
Ins. Co., 166 N.C. App. 422, 601 S.E.2d 908 (2004).
Our standard to review the grant of a motion
for summary judgment is whether any genuine
issue of material fact exists and whether the
moving party is entitled to judgment as a
matter of law. A defendant may show
entitlement to summary judgment by (1) proving
that an essential element of the plaintiff's
case is non-existent, or (2) showing through
discovery that the plaintiff cannot produce
evidence to support an essential element of
his or her claim, or (3) showing that the
plaintiff cannot surmount an affirmative
defense. Once the party seeking summary
judgment makes the required showing, the
burden shifts to the nonmoving party to
produce a forecast of evidence demonstrating
specific facts, as opposed to allegations,
showing that he can at least establish a prima
facie case at trial.
Id. at 425-26, 601 S.E.2d at 911 (internal citations and quotations
IV. Agreement to Agree
 It is well settled that a contract leaving material
portions open for future agreement is nugatory and void forindefiniteness. Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d
692, 695 (1974). The reason for this rule is that if a
preliminary contract fails to specify all of its material and
essential terms so that some are left open for future negotiations,
then there is no way by which a court can determine the resulting
terms of such future negotiations. Bank v. Wallens and Schaaf v.
Longiotti, 26 N.C. App. 580, 583, 217 S.E.2d 12, 15 (1975). If the
parties to the contract manifested an intent not to become bound
until the execution of a more formal agreement or document, then
such an intent would be given effect. Id.
In the usual case, the question whether an
agreement is complete or partial is left to
inference or further proof. The subsequent
conduct and interpretation of the parties
themselves may be decisive of the question as
to whether a contract has been made even
though a document was contemplated and has
never been executed.
Id. at 584, 217 S.E.2d at 15 (quoting Boyce, 285 N.C. at 734, 208
S.E.2d at 695; 1 Corbin, Contracts, § 30, pp. 107-08 (1963)). Our
decision turns on whether a genuine issue of material fact exists
if the parties intended to be bound by the separation agreement
when the referenced and separate right of first refusal agreement
was never executed.
In Wallens, the agreement in question began by stating, This
letter is to serve as a memorandum agreement until proper complete
documents can be drawn up to consummate this transaction. 26 N.C.
App. at 582, 217 S.E.2d at 14. This Court upheld the agreement
because it clearly stated that it would serve as an agreement until
more complete documents were drawn. Id. at 583-84, 217 S.E.2d at15. Here, the lack of a final agreement, along with the subsequent
conduct of the parties, demonstrates an intent by the parties not
to be bound by the provisions of the separation agreement until a
separate right of first refusal agreement was executed.
By deed dated 5 March 2003, Kimberly A. Nichols reconveyed the
0.87 acres to James G. Nichols. Included in the language of the
deed is a statement that the grantor, Kimberly A. Nichols, does
grant, bargain, sell and convey unto the Grantee in fee simple, all
that certain lot or parcel of land situated in Cashiers Township,
Jackson County, North Carolina, and more particularly described as
follows . . . . The deed further states:
And the Grantor covenants with the Grantee,
that Grantor is seized of the premises in fee
simple, has the right to convey the same in
fee simple, that title is marketable, and free
and clear of all encumbrances, and the Grantor
will warrant and defend the title against the
lawful claims of all persons whomsoever except
for the exceptions herein after stated.
Black's Law Dictionary defines an encumbrance as a claim or
liability that is attached to property or some other right and that
may lessen its value . . . . Black's Law Dictionary 547 (7th ed.
A right of first refusal, also termed as a preemptive right,
requires that, before the property conveyed may be sold to another
party, it must first be offered to the conveyor or his heirs, or to
some specially designated person. Smith v. Mitchell, 301 N.C. 58,
61, 269 S.E.2d 608, 610 (1980) (quoting 6 American Law of Property
§ 26.64 at 506-07 (1952)). A preemptive provision creates the right in the holder to buy
the property before the seller can convey it to another. Id. at
61, 269 S.E.2d at 610-11. A right of first refusal is a restraint
on alienation. Id. at 61, 269 S.E.2d at 610. In spite of the fact
that a right of first refusal provision constitutes a restraint of
alienability, our Supreme Court has held such agreements are
enforceable if carefully limited in duration and price and are
Kimberly A. Nichols covenanted in her deed to James G. Nichols
that the property was was free and clear of all encumbrances. A
right of first refusal provision constitutes an encumbrance and
creates a liability attached to the property. Our courts have held
a right of first refusal to be a restraint on alienation. Smith,
301 N.C. at 61, 269 S.E.2d at 610. The 5 March 2003 conveyance of
the 0.87 acres from Kimberly A. Nichols to James G. Nichols
demonstrates that the parties did not intend to be bound by the
provisions in the separation agreement absent the execution of a
more formal and final right of first refusal, which was never
executed. Wallens, 26 N.C. App. at 583, 217 S.E.2d at 15. As no
genuine issue of material fact exists, James G. Nichols was
entitled to summary judgment. The trial court did not err in
granting James G. Nichols's motion for summary judgment.
V. Collateral Estoppel
 Kimberly A. Nichols argues that in an order entered by the
trial court on 26 April 2004, the court found that James G. Nichols
failed to notify her of the offer to purchase the real property,and he is collaterally estopped from relitigating the same issue in
the action pending in the Superior Court. Kimberly A. Nichols, as
appellant, failed to include a copy of the district court's order
in the record on appeal.
Rule 9 of the North Carolina Rules of Appellate Procedure
limits this Court's review to matters contained in the record on
appeal. Rule 9(a) provides that copies of all other papers filed
and statements of all other proceedings had in the trial court
which are necessary to an understanding of all errors should be
included in the record on appeal. N.C.R. App. 9(a)(1)(j) (2005).
As Kimberly A. Nichols failed to include a copy of the district
court's order in the record on appeal, we do not address this
issue. State v. Brown, 142 N.C. App. 491, 492-93, 543 S.E.2d 192,
193 (2001) (noting that it is the appellant's duty to ensure that
the record before this Court is complete). This assignment of
error is dismissed.
The trial court did not err in concluding no genuine issue of
material fact existed with regard to Kimberly A. Nichols's
crossclaim against James G. Nichols. The trial court's order
granting summary judgment in favor of James G. Nichols and wife,
Kimberly Diane Nichols is affirmed.
Judges JACKSON and SMITH concur.
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