CHARLES DAVID ANDREWS,
No. 02 CVS 3623
JOHN M. SMITH, JR., and
wife, DONNA B. SMITH,
The Yarborough Law Firm, by Garris Neil Yarborough, for
Armstrong & Armstrong, P.A., by L. Lamar Armstrong, Jr.; Daughtry, Woodard, Lawrence & Starling, L.L.P., by Luther D. Starling, Jr., for defendant-appellants.
John Smith (John) and Donna Smith (Donna) (collectively defendants) appeal from a summary judgment dismissing their counterclaim for unfair and deceptive practices against Charles David Andrews (plaintiff). For the reasons stated within, we affirm the grant of summary judgment.
In 2002, defendants listed several parcels of a property located along Tar Heel Road in Lumberton with real estate agent Natalie Lewis (Lewis). Defendants decided to exclude their home and some surrounding land from the sale. Plaintiff, a real estate developer, expressed interest in defendants' property. An offer to purchase and contract was made by plaintiff and accepted by John for approximately 117 acres. The contract stipulated that the tobacco allotments associated with the land would be held by the seller until 1 October 2002, that seller could continue to farm that year's crop, and that the house, shelter, and 4 1/2 acres +/- of the area to [the] left of [the] house that is not farmed were excluded from the purchase.
Plaintiff offered to make an advance purchase on a ten-acre portion of the land, and further offered an increased price to defendants to immediately obtain the tobacco allotment. At closing on the advance purchase, two issues arose. It was determined that a portion of the ten-acre tract that was to be conveyed was subject to an existing mortgage and could not be transferred. Plaintiff's surveyor, Johnny Nobles (Nobles), then moved the description for the ten-acre tract along Tar Heel Road closer to defendant's home. Defendants expressed concern that the new description would infringe on the five-acre area to be retained, and further asserted that Lewis had been advised the tobacco allotment had never been for sale. After some deliberations, defendants included the allotment and closed on the ten-acre tract.
Conflicting evidence was given as to a meeting which occurred between Donna and Nobles regarding the location of the excluded five acres. Donna stated that prior to the closing on the ten acres, Nobles had sketched out the excluded five acres at defendants' request, locating them to the left if facing the house, and affirmed that plaintiff would find that location acceptable. Nobles stated that the meeting occurred after the closing on the ten acres, and that he sketched out one potential placement that would be a good location of the acreage, but suggested that Donna would need to speak with her realtor or attorney about reaching an agreement as to the exact location. Nobles stated he did not confirm the placement of the acreage with plaintiff at that time. Defendants prepared a deed retaining what they believed to be the excluded acreage and provided Lewis with a copy of the deed in preparation for the second closing on 23 August 2003. Plaintiff disputed the deed, contending the excluded five acres were those to the left of the house when facing Tar Heel Road, as that area had small pine trees growing on it and was not farmed, as stated in the initial description. Alternative proposals were made as to the excluded five acres, however, both violated the sketch drawn by Nobles. Plaintiff threatened to sue defendants for breach of contract unless they accepted one of the alternate proposals. Defendants refused to accept any proposal that did not exclude the land as shown in Nobles' sketch.
Plaintiff filed suit to compel enforcement of the land contract and filed a notice of lis pendens on defendants' land on 9 September 2002. Defendants made a motion to dismiss plaintiff's action, which was denied on 12 March 2003. Defendants then filed a counterclaim and third-party complaint against Lewis. Defendants also filed a notice of lis pendens on the land sold to plaintiff in the first transaction. The trial court authorized the parties to file amended pleadings based on stipulations by both parties. Defendants voluntarily dismissed their complaint against Lewis on 22 March 2004, and filed an amended answer and counterclaim against plaintiff alleging breach of contract, fraud, and unfair practices. Plaintiff also filed an amended complaint which included claims against Lewis and additional claims against defendants.
Discovery was conducted, including a deposition with Nobles which occurred on 4 August 2004. Following Nobles' deposition, Lewis moved to dismiss all claims against her, and the motion was granted on 13 August 2004. Defendants moved for summary judgment on 10 August 2004, and plaintiff moved for summary judgment on 11 August 2004. The trial court granted summary judgment for defendants as to all plaintiff's claims on 31 August 2004. The trial court granted summary judgment for plaintiff as to all defendants' counterclaims on 8 September 2004. Defendants appeal only the trial court's grant of summary judgment to plaintiff on defendants' counterclaim for unfair and deceptive practices.
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