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1. Appeal and Error--appealability--second motion for summary judgment--different
legal issues from prior motion
Plaintiffs' appeal from the 29 November 2004 order granting summary judgment to
defendants is properly before the Court of Appeals because: (1) where a second motion for
summary judgment presents legal issues different from those raised in the prior motion, such a
motion is appropriate; and (2) defendants' first summary judgment motion revolved around the
agreement not complying with the Statute of Frauds whereas the second motion, among other
things, questioned whether there was mutual assent between the parties.
2. Contracts--breach--no certain and definite price--no mutual assent
The trial court did not err in a breach of contract to sell property case by granting
summary judgment to defendants, because: (1) a contract to enter into a future contract must
specify all its material and essential terms and leave none to be agreed upon as a result of future
negotiations; (2) the price term was not certain and definite since no mechanism existed with the
parties' agreement to address any potential price discrepancies when there were no additional
provisions stating how to proceed if the two appraisals produced vastly different property values;
(3) each plaintiff admitted by deposition that price was to be determined amongst the parties at a
future date and defendants in their depositions agreed; and (4) there was no mutual assent
between the parties as to the value of defendants' property, and thus, the purchase price to be
paid.
Charles M. Tighe for plaintiffs-appellants.
Shipman & Wright, L.L.P., by Gary K. Shipman and William G.
Wright, for defendants-appellees.
CALABRIA, Judge.
Tony (“Tony”) and Jeannie (“Jeannie”) Connor
(See footnote 1)
(collectively
known as “plaintiffs”) appeal the 29 November 2004 order granting
summary judgment to David (“David”) and Sandra (“Sandra”) Harless
(collectively known as “Harless”), and David Huffine (collectively
known as “defendants”). We affirm.
On 20 November 2000, plaintiffs and Harless entered into a
written agreement under which Harless leased to plaintiffs 2.3
acres of real property located in Brunswick County at 2801 River
Road S.E., Winnabow, North Carolina. Plaintiffs desired to
“lease...and to operate for [their] own account [both a] general
store/variety store and the premises upon which the store is
located....” Plaintiffs agreed to lease the property for a period
of sixty months with an option to renew for an additional sixty
month period and an option to purchase was included. Specifically,
paragraph 20 of the written agreement, entitled “option to
purchase,” states:
“[a]t any time during the term of this lease
or, upon termination of this lease, the lessee
may at his option purchase said premises at a
price of a fair market value, payable as
follows: An amount in cash fair market value
at the time of such purchase (based on at
least two appraisals)....”
The purpose of this provision was to provide plaintiffs with an
option to purchase the leased premises if defendants ever decided
to sell. On or about 1 March 2003, Tony spoke with David expressing
their desire to exercise their option to purchase the leased
property. During the next months, plaintiffs discovered one of the
conditions required by the lender was a recent appraisal of the
property. On or about 15 May 2003, Tony gave David a copy of an
appraisal and repeated their desire to purchase the leased
premises. According to the first appraisal, the estimated value of
the property was $140,000.00.
On 3 July 2003 plaintiffs' attorney gave written notice to
Harless that plaintiffs desired to exercise their option to
purchase the leased premises. At this point, a second appraisal
was commissioned by plaintiffs where the value of the property was
determined to be $160,000.00. As part of the 3 July 2003
correspondence, plaintiffs claimed the purchase price as
$150,000.00 (the average of the two appraisals employed) to be paid
in full at the closing. Following receipt of the letter from
plaintiffs, defendants dispatched a letter on 29 July 2003 stating
“under no circumstances would they ever agree to sell their old
store building and approximately 2.5 acres to their daughter...and
their son-in-law.”.
Plaintiffs filed suit on 1 August 2003 alleging defendants
breached their contract to sell the property. Defendants moved for
summary judgment on 8 April 2004 citing as grounds that plaintiffs'
claims were barred by the Statute of Frauds. On 27 April 2004
Judge William C. Gore denied defendants' motion. Citing legal
issues different from those raised in the first motion as well astwo depositions taken subsequent to the 27 April 2004 order,
defendants moved for summary judgment on 5 November 2004. On 1
December 2004, Judge Jack A. Thompson granted defendants' motion.
Plaintiffs appeal.
[1] Initially, we note this appeal is properly before us.
“Where a second motion [for summary judgment] presents legal
issues...different from those raised in the prior motion, such [a]
motion [is] appropriate.” Carr v. Carbon Corp., 49 N.C. App. 631,
635, 272 S.E.2d 374, 377 (1980) (emphasis added). In the instant
case, defendants' first summary judgment motion revolved around the
agreement not complying with the Statute of Frauds. Conversely,
defendants' second motion, among other things, questioned whether
there was mutual assent between the parties. Questioning whether
a price term was physically present in the agreement and whether
that written price was the amount actually negotiated and agreed
upon by the parties to the agreement, are different legal inquiries
and as such, present different legal issues. Thus, we address the
merits of the case.
[2] Plaintiffs first argue the trial court erred in granting
summary judgment to defendants because evidence was produced from
which a reasonable jury could determine that the parties intended
to contract. We disagree.
Summary judgment is appropriate and “shall be rendered
forthwith 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 anymaterial fact....” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005).
“The party moving for summary judgment must establish...that no
genuine issue of material fact exists and that the moving party is
entitled to judgment as a matter of law.” Branks v. Kern, 320 N.C.
621, 623, 359 S.E.2d 780, 782 (1987). The movant can carry this
burden “by proving that an essential element of the opposing
party's claim is nonexistent or by showing through discovery that
the opposing party cannot produce evidence to support an essential
element of his claim.” Zimmerman v. Hogg & Allen, 286 N.C. 24, 29,
209 S.E.2d 795, 798 (1974). “All inferences are to be drawn
against the moving party and in favor of the opposing party.”
Branks, 320 N.C. at 624, 359 S.E.2d at 782.
“It is essential to the formation of any contract that there
be mutual assent of both parties to the terms of the agreement so
as to establish a meeting of the minds.” Harrison v. Wal-Mart
Stores, Inc., 170 N.C. App. 545, 550, 613 S.E.2d 322, 327 (2005)
(quotation marks and citation omitted) (emphasis added). Further,
“[m]utual assent is normally established by an offer by one party
and an acceptance by the other, which offer and acceptance are
essential elements of a contract.” Creech v. Melnik, 347 N.C. 520,
527, 495 S.E.2d 907, 912 (1998) (emphasis added). Price, along
with identification of the parties and the property to be sold,
“are the essential elements of a contract.” Yaggy v. B.V.D. Co.,
7 N.C. App. 590, 600, 173 S.E.2d 496, 503 (1970) (emphasis added).
Consequently, as to the essential and material contractual term of
price, there must be a meeting of the minds. “[A] contract is nugatory and void for indefiniteness if it
leaves any material portions open for future agreement.” Currituck
Assoc. Residential P'ship v. Hollowell, 166 N.C. App. 17, 27, 601
S.E.2d 256, 263 (2004), aff'd, 360 N.C. 160, 622 S.E.2d 493 (2005)
(citation and internal quotation marks omitted). Consequently, “a
contract to enter into a future contract must specify all its
material and essential terms, and leave none to be agreed upon as
a result of future negotiations.” Boyce v. McMahan, 285 N.C. 730,
734, 208 S.E.2d 692, 695 (1974) (citation omitted). In the instant
case, once plaintiffs exercised the “option to purchase” provision
in paragraph 20 of the agreement, the price to be paid was “[a]n
amount in cash fair market value at the time of such purchase
(based on at least two appraisals).” However, no mechanism existed
within the agreement to address any potential price discrepancies.
Specifically, there were no additional provisions stating how to
proceed if the appraisals produced vastly different property
values. Plaintiffs produced two appraisals that alone differed
$20,000.00 in assessing the value of defendants' property. With no
specification in the agreement as to how to address such greatly
varying estimates in the value of defendants' property, the price
term is not, as it must be, certain and definite. Moreover, each
plaintiff admitted in their individual deposition that price was to
be determined amongst the parties at a future date and the
defendants, in their depositions, agreed. Here, there was no
mutual assent between plaintiffs and defendants as to the value of
the defendants' property and thus, the purchase price to be paid. “'[A] valid contract exists only where there has been a meeting of
the minds as to all essential terms of the agreement.'” Maxwell v.
Michael P. Doyle, Inc., 164 N.C. App. 319, 326, 595 S.E.2d 759, 763
(2004) (quoting Northington v. Michelotti, 121 N.C. App. 180, 184,
464 S.E.2d 711, 714 (1995)). Because there was no meeting of the
minds as to the essential term of price, the agreement between
plaintiffs and defendants is not an enforceable contract.
Since we conclude the agreement lacked mutual assent, we need
not reach any of the plaintiffs' other arguments.
Affirmed.
Judges HUDSON and BRYANT concur.
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