An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1458


Filed: 2 August 2005


         v.                        Orange County
                                No. 04 CVD 1185
W.B.Y. VENTURES, L.L.C. d/b/a

    Appeal by defendant from order entered 2 September 2004 by Judge Charles T.L. Anderson in Orange County District Court. Heard in the Court of Appeals 18 July 2005.

    Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for plaintiff-appellee.

    David Curtis Smith & Associates PLLC, by David C. Smith, for defendant-appellant.

    MARTIN, Chief Judge.

    Plaintiff instituted this action by the filing of a complaint for summary ejectment in small claims court on 12 May 2004. From a decision in favor of plaintiff, defendant filed notice of appeal to the district court and requested a bench trial. The district court entered an order of summary ejectment on 2 September 2004. The following facts found by the court are undisputed.
    On or about 1 March 2003, plaintiff and defendant entered into a lease agreement whereby defendant leased certain space in a shopping center owned by plaintiff. The lease agreement provided for the payment of rent and other fees on or before the first of each month. Defendant failed to make timely payments some months. Consequently, on 20 June 2003, 16 December 2003, 27 February 2004 and 12 March 2004 plaintiff mailed notices of default to defendant. At the time of the 27 February 2004 notice, defendant owed more than $13,000 in unpaid rent and other charges. Unlike when defendant received the 20 June 2003 and 16 December 2003 notices, defendant did not immediately cure the defaults identified in the 27 February 2004 notice, and on 10 March 2004, plaintiff instituted a summary ejectment action against defendant. Plaintiff voluntarily dismissed the action when defendant cured the defaults identified in the 27 February 2004 and 12 March 2004 notices of default.
    When defendant failed to pay the April rental in a timely fashion, plaintiff mailed another notice of default on 22 April 2004 contending that defendant had an outstanding balance of $5,919.35 for April rent, late fees and attorneys fees. This notice contained the following statement: “Notice is also hereby given pursuant to paragraph 10 of your lease that if you fail to cure your default by paying the entire outstanding amount due within ten (10) days following the date of this notice, the landlord will terminate your right to possession of the premises without terminating your lease.”
    On 27 April 2004 defendant tendered a check in the amount of $4,525.06 and refused to pay any legal fees associated with the dismissed summary ejectment action. Plaintiff wrote a responsive letter on 29 April 2004 asserting that of the amount not paid by defendant, only $860.51 was attributable to legal fees and theremaining amount constituted fees and late charges attributable to an insufficient funds check defendant wrote to plaintiff. On 12 May 2004 plaintiff instituted the subject action for summary ejectment.
    The court concluded that defendant was in default and that plaintiff was not required under the terms of the lease agreement to give additional notice of its intent to dispossess defendant of the premises. The court accordingly ordered defendant to vacate the premises.
    Defendant contends on appeal that the order of summary ejectment should be vacated because plaintiff failed to give adequate notice. Relying upon ARE-100/800/801 Capitola, LLC v. Triangle Labs., Inc., 144 N.C. App. 212, 550 S.E.2d 31 (2001)(hereinafter “Capitola”), defendant argues plaintiff (1) failed to notify defendant of its intent to re-enter the property and terminate the lease or defendant's possession of the property, and (2) failed to give clear notice that plaintiff was terminating defendant's estate. See id. at 219, 550 S.E.2d at 35-36.
    For a better understanding of defendant's argument, a summary of the facts and holding of Capitola is necessary. In that case the landlord mailed the tenant three notices of default for failure to pay rent in a timely fashion. Id. at 215, 550 S.E.2d at 33. Each notice contained language requesting payment or the landlord would “immediately initiate curative remedies under the Lease and the law.” Id. The landlord filed a summary ejectment action contending the tenant breached the lease by failing to pay rentwithin three business days after three demands within one year. This Court found the notices were defective because they failed to notify the tenant which option the landlord had chosen to pursue of the three options stated in the lease, namely, (1) re-entry of the property; (2) termination of the lease; or (3) termination of the tenant's possession of the property. Capitola, 144 N.C. App. At 218-19, 550 S.E.2d at 35-56.
    This Court recently distinguished Capitola in Crabtree Ave. Inv. Group, LLC v. Steak & Ale of N.C., Inc., __ N.C. App. __, 611 S.E.2d 442 (2005), in which the landlord purchased the commercial property on 15 September 2003 after the tenant had paid its rent for the month of September. The tenant did not pay the rent for October 2003, and on 30 October 2003, the landlord mailed a certified letter to the tenant notifying the tenant that rent for October had not been received. The letter made demand for payment. The tenant responded on 5 November 2003 by requesting production of a tax document and a copy of the landlord's new deed, stating it needed these documents in order to process the payment. The landlord, by letter dated 7 November 2003, complied with the tenant's request. When the tenant failed to pay by 17 November 2003, or within ten days after notice of non-receipt of rent, the landlord terminated the lease and notified the tenant by a letter from its legal counsel. On 26 November 2003 the tenant made rental payments for the months of October, November and December. The landlord returned the checks and filed an action for summary ejectment on 4 December 2003, stating as ground the tenant'sfailure to pay within ten days after demand. The trial court granted relief in favor of the landlord.
    The tenant contended on appeal that the notice was inadequate. This Court disagreed, noting that the lease contract provided that upon the occurrence of an “[e]vent of [d]efault,” the landlord had the option of pursuing certain remedies, including termination of the lease agreement, “without any notice or demand whatsoever.” Under the terms of the lease agreement, an event of default included the tenant's failure to pay rent within ten days of written notice from the landlord. This Court stated the landlord gave such written notice by its certified letter of 30 October 2003 in which it informed the tenant that rental must be paid within ten days after notice of non-receipt.
    This Court distinguished Capitola by noting that the lease agreement in that case “required that the landlord give written notice of which remedy it was pursuing prior to taking the action” whereas the lease in Crabtree did not require any notice of termination, “[r]ather, [the landlord] could effectively terminate the lease without notice following [the tenant's] failure to pay rent within 10 days of written demand for rent past due.”     Paragraph 10.1 of the lease in the present case provides that
        [i]n the event that Tenant [] fails to pay all or any portion of any sum due from Tenant hereunder ... within ten (10) days following written notice... and shall not have cured same within ten (10) days following written notice from Landlord with respect to monetary obligations, ... then Tenant shall be in default hereunder and Landlord may, at its option and without further notice to Tenant, terminate Tenant's right to possession of the Premises and without terminating this Leasere-enter and resume possession of the Premises[.]

(Emphasis added). Paragraph 10.4 of the lease provides that
        [i]f the Tenant is in Chronic Default, Landlord may immediately exercise any and all rights and remedies available under this Lease, at law or in equity, without giving Tenant any notice or opportunity to cure the last default causing Tenant's Chronic Default, (notwithstanding any notice or cure provision or other lease provision to the contrary hereof.)

(Emphasis added). Chronic default is defined in the lease as including chronic late payments, which is further defined as the late payment of rent four or more times within any period of 365 days.
    Defendant was in default under both of the above paragraphs of the lease at the time of the 22 April 2004 notice mailed by plaintiff. Plaintiff had not paid the April rent and related disputed charges. Thus, pursuant to paragraph 10.1, plaintiff could take possession “without further notice to Tenant.” Moreover, the late rent payment for April marked the fifth time within a period of 365 days that plaintiff failed to pay the rent. Pursuant to paragraph 10.4, defendant could exercise any remedy available under the lease without giving any notice.
    Even if, arguendo, the lease and law required the giving of specific notice, the notice given by plaintiff in the present case complied. Each notice clearly stated that if default was not cured within ten days, “the landlord will terminate your right to possession of the premises without terminating your lease.” Each notice, therefore, expressly notified the tenant of the remedy thelandlord sought to enforce.
    For the foregoing reasons, the trial court's order is affirmed.
    Judges HUNTER and JACKSON concur.
    Report per Rule 30(e).

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