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