An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-585

NORTH CAROLINA COURT OF APPEALS

Filed: 3 January 2006

GEORGE B. SNOWDEN and wife,
MARLIDA B. SNOWDEN,
            Plaintiffs,
v .                         Orange County
                            No. 04 CVS 594
CAPKOV VENTURES, INC.,
            Defendant.

    Appeal by defendant from an order entered 17 December 2004 by Judge Steve A. Balog in Orange County Superior Court. Heard in the Court of Appeals 30 November 2005.

    Bayliss, Hudson & Merritt, by Ronald W. Merritt, for plaintiff-appellees.

    Beemer, Saver, Hadler & Jones, P.A., by Kate Colburn, for defendant-appellant.


    
    BRYANT, Judge.

    Capkov Ventures, Inc. (defendant) appeals from an order entered 17 December 2004 granting summary judgment in favor of George B. Snowden and Marlida B. Snowden (plaintiffs) and awarding plaintiffs $28,617.41, plus pre-judgment interest of $1,931.87 and costs.   (See footnote 1) 
    Plaintiffs seek to recover a “Builder Deposit” made to defendant and additional costs paid to others, pursuant to theOffer To Purchase And Contract, dated 22 March 2003, where plaintiffs agreed to purchase, and defendant agreed to construct and sell, a residence in Chapel Hill, North Carolina. In a form provided by defendant, the parties added Addendum B to the contract, which provided as follows:
        THE ANTICIPATED COMPLETION DATE AND CLOSING DATE SHALL BE ON OR BEFORE DEC. 3, 2003 BUT THE PARTIES RECOGNIZE THAT ADVERSE WEATHER, UNAVAILABILITY OF MATERIAL, STRIKES AND OTHER CONDITIONS BEYOND THE REASONABLE CONTROL OF THE BUILDER MAY DELAY COMPLETION AND IS THEREFORE AGREED BY THE PARTIES THAT IN THE EVENT, AND ONLY IN THE EVENT, THAT THE PROPERTY IS NOT SUBSTANTIALLY COMPLETED IN ACCORDANCE WITH THE VA, FHA OR CONVENTIONAL PLANS AND SPECIFICATIONS, MINOR PUNCH LIST ITEMS EXCLUDED, WITHIN SIXTY (60) DAYS AFTER THE ANTICIPATED DATE OF COMPLETION, BUYER SHALL HAVE THE RIGHT TO DECLARE THIS AGREEMENT NULL AND VOID AND THEREUPON BUILDER X SHALL __SHALL NOT RETURN TO BUYER THE SUMS PAID UNDER PARAGRAPH 4 (A) OF OFFER TO PURCHASE AND CONTRACT AND BUYER'S AND BUILDER'S RIGHT SHALL CEASE AND TERMINATE WITHOUT FURTHER LIABILITY ON PART OF EITHER PARTY.

Construction was not completed on or before 1 February 2004, or “sixty (60) days after the anticipated date of completion,” as set forth in Addendum B. A certificate of occupancy was issued on 11 February 2004. On 13 February 2004, pursuant to Addendum B, plaintiffs notified defendant they were declaring the contract null and void and demanded return of the Builder Deposit. Defendant has refused to return the Builder Deposit. Defendant has since sold the house for $28,000.00 more than the contract price with plaintiffs.
    On 22 March 2004, plaintiffs initiated this action for breach of contract, seeking return of their deposit with defendant in thesum of $27,670.00, damages for various expenditures for telephone, television and cable lines in the sum of $947.41 and reasonable attorney fees. Defendant filed a motion to dismiss, answer and counterclaim, pleading various defenses and seeking damages for breach of contract in excess of $15,000.00, to which plaintiffs filed a reply. On 22 November 2004, plaintiffs filed a motion for summary judgment as to all claims and a motion for leave to amend the complaint. The motion for summary judgment was heard before Judge Steve A. Balog and on 17 December 2004, Judge Balog entered an order granting summary judgment in favor of plaintiffs, awarding plaintiffs damages in the sum of $28,617.41, interest thereon and the costs of this action. Plaintiffs' motion for leave to amend was dismissed as moot. Defendant appealed on 12 January 2005.     

_____________________________________

    On appeal defendant argues the trial court erred in granting plaintiff's motion for summary judgment. Specifically, defendant claims there was a genuine issue as to whether “time was of the essence” under the terms of the contract, whether plaintiff intended to waive any time provisions by their actions, and whether defendant was in material breach of the contract.
    The party moving for summary judgment has the burden of establishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then the non-moving party must “produce a forecast of evidence demonstrating that the [non-movant] will be able to make out at least a primafacie case at trial.” Id. In opposing a motion for summary judgment, the non-moving party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” N.C. Gen. Stat. § 1A-1, Rule 56(e).
    On appeal, this Court's task is to determine, on the basis of the materials presented to the trial court, whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied, ___ N.C. ___, 276 S.E.2d 283 (1981). A trial court's ruling on a motion for summary judgment is reviewed de novo. Virginia Elec. & Power Co. v. Tillett, 80 N.C. App. 383, 384-85, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986). The standard for determining if a movant is entitled to summary judgment requires a two-part analysis of whether: (1) the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact; and (2) the moving party is entitled to judgment as a matter of law. Davis v. Town of S. Pines, 116 N.C. App. 663, 665, 449 S.E.2d 240, 242 (1994). The opposing party, in order to survive a summary judgment motion, must forecast evidence indicating the existence of a triable issue of material fact. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976).     This Court has previously recognized that “time is ordinarily not of the essence of a contract of sale and purchase.” Furr v. Carmichael, 82 N.C. App. 634, 638, 347 S.E.2d 481, 484 (1986). Therefore, where a contract does not specify the time within which a right to purchase should be exercised, “the right must be exercised within a reasonable time.” Id. Even where a contract includes a specific time or date of purchase, if no provision of the contract expressly indicates that time is of the essence, the parties are given a reasonable time to close the sale and purchase. Id. at 639, 347 S.E.2d at 484; see Walker v. Weaver, 23 N.C. App. 654, 657, 209 S.E.2d 537, 539 (1974) (holding that time was not of the essence where the contract provided that it was “to be definitely closed within a period of -- 30 -- days” because the statement did not indicate an intention of the parties that all rights and obligations were to terminate if sale was not closed within prescribed time). “Though the determination of reasonable time is generally a mixed question of law and fact and thus for the jury, it becomes a question of law when the facts are simple and admitted and only one inference can be drawn.” Furr, 82 N.C. App. at 638, 347 S.E.2d at 484. When the language of a contract is clear and unambiguous, effect must be given to its terms and the Court, under the guise of construction, cannot reject what the parties inserted or insert what the parties elected to omit. Carolina Place Joint Venture v. Flamers Charburgers, Inc., 145 N.C. App. 696, 699, 551 S.E.2d 569, 571 (2001); Weyerhaeuser Co. v. Carolina Power & Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).    In the case sub judice, Addendum B was signed by both parties and clearly states the parties' intentions. If construction was not completed within sixty days of 1 December 2003, plaintiffs could terminate and void the contract and have their deposit returned. There is no other meaning to infer or draw from this addendum. The contract did not contain a “time is of the essence” provision; however, in this case, the terms of Addendum B specifically provided a remedy for plaintiffs in the event the construction was not completed within the stated sixty day time period. Plaintiffs were entitled, under the terms of Addendum B to declare the contract null and void, which meant closing would not occur and plaintiffs would receive a full refund of their deposit.
     Defendant also argues the trial court erred in granting plaintiff's motion to dismiss because plaintiffs intended to waive any time provisions by their actions and defendant was not in material breach of the contract. In early December 2003, plaintiffs inquired about postponing the purchase until May 2004, to which defendant replied plaintiffs would have to pay the carrying costs for the project. Despite plaintiffs' inquiry, the parties did not enter into a new agreement or modify the dates and terms specified in the original contract. Therefore, the original contract and addenda entered into on 22 May 2003 remained enforceable. Defendant complained that plaintiffs failed to make timely selections; however the terms of the contract stated that in the event of non-selection by plaintiff, defendant would choose the construction options on plaintiffs' behalf. Defendant has failedto forecast evidence that construction was substantially complete within the contractual period. Therefore, the trial court properly granted plaintiffs' motion for summary judgment. This assignment of error is overruled.
    Affirmed.
    Judges TYSON and CALABRIA concur.
    Report per Rule 30(e).


Footnote: 1
    We note plaintiff-appellees' Motion to Dismiss Appeal alleging rules violations, and defendant-appellant's response to the Motion which included a revised brief. We accept defendant- appellants' Revised Brief as a substitute, and therefore deny plaintiff-appellees' Motion to Dismiss Appeal.

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