KENLEY FAMILY PARTNERSHIP
and SEUNG OK KIM,
Plaintiffs,
v
.
Mecklenburg County
No. 05 CVD 011517
OK J. YU,
Defendant.
Goodman Carr Laughrun Levine & Murray, by Miles S. Levine, for
the defendant-appellant.
The Odom Firm, PLLC, by Thomas L. Odom, Jr., for the
plaintiff-appellee.
ELMORE, Judge.
Kenley Family Partnership (Kenley) leased the premises located
at 5101-A Nations Ford Road, Charlotte, North Carolina (premises),
to Seung Ok Kim (Kim) on 12 August 2003. On 12 October 2004, Kim
subleased the premises with Kenley's permission to Ok J. Yu
(defendant). Their sublease agreement states that all terms,covenants, and conditions of the original lease applied to
defendant. Three paragraphs from this lease are applicable to the
case at hand:
Paragraph 8 provides in part: “The premises shall be used for
Massage Therapy, sale of equipment, purposes only and no other.
The Premises shall not be used for any illegal purposes . . . .”
Paragraph 19 outlines events which will constitute default;
one such event, given in 19(c), is tenant's failure to “comply with
or abide by and perform any . . . obligation imposed upon Tenant
under this Lease” other than failure to pay rent.
Paragraph 20 states the landlord's various remedies upon the
happening of an event from paragraph 19 and specifies that the
landlord “may pursue any one or more of the following remedies
separately or concurrently, without prejudice to any other remedy
herein provided or provided by law.” One remedy, per 20(a),
requires that the landlord give 15 days' written notice to the
tenant in the case of any “default in performing any of the terms
or provisions of this Lease,” including nonpayment of rent. For
any other type of default, under 20(b), the landlord may terminate
the lease by written notice without giving tenant time to cure the
default.
On 12 January 2005, defendant's employee Pok Cha Brewer
(Brewer) was arrested for operating a massage establishment withouta license, massaging a person of the opposite sex without a
license, and massaging the private parts of another in violation of
N.C. Gen. Stat. §§ 90-623 and 634 and Section 6-403(b) and (c) of
the Charlotte City Code. Brewer pled guilty to massaging without
a license, and the other two charges were dismissed. On 22 March
2005, defendant was arrested for violating the same statutes.
These charges were later dismissed.
(See footnote 1)
On 30 April 2005, Kenley gave written notice to defendant
voiding the sublease based on the illegal activities being
conducted on the premises in violation of paragraph 8 of the lease.
On 1 June 2005, Kenley again gave written notice to defendant that
the sublease was void. Defendant refused to surrender possession
of the property, and plaintiffs Kenley and Kim brought an action
for summary ejectment. After a bench trial, the court entered a
judgment for plaintiffs and ordered defendant to vacate the
property. Defendant appeals.
“[W]hen the trial court sits without a jury, the standard of
review on appeal is whether there was competent evidence to supportthe trial court's findings of fact and whether its conclusions of
law were proper in light of such facts.” Shear v. Stevens Building
Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992).
Defendant argues that the trial court's findings of fact
regarding paragraphs 8, 19, and 20 of the lease agreement were
incorrect. Specifically, defendant claims that competent evidence
does not exist to support the trial court's findings that, first,
illegal activities were performed by defendant or defendant's
employees on the premises and, second, no 15-day notice was
required by the lease. We disagree.
An abundance of evidence was presented as to the commission of
illegal acts on the premises by defendant or defendant's employees,
including testimony from Charlotte-Mecklenburg police officers and
certified copies of criminal records. Defendant argues that the
default caused by Brewer's arrest was “cured” by defendant's firing
of Brewer thereafter, and that defendant's testimony at trial
regarding her own arrest conflicted with that of the arresting
officer. The latter assertion is irrelevant to the trial court's
determination that illegal activities occurred on the premises, and
the former is essentially an admission that such activity occurred.
Between this admission and the evidence offered by plaintiffs,
competent evidence existed to support the trial court's findings of
fact that illegal activities occurred on the premises. Defendant's only support for the assertion that 15 days'
notice was required by the lease is that a strict interpretation of
paragraphs 19 and 20 would make paragraph 20(a), the only portion
of the lease requiring a 15-day notice, inapplicable to the
situation at issue. This contention is without merit.
“When the language of a contract is plain and unambiguous, its
construction is a matter of law for the court.” Marsh Realty Co.
v. 2420 Roswell Ave., 90 N.C. App. 573, 576, 369 S.E.2d 113, 115
(1988). As the trial court found, paragraph 20 by its express
terms states that the landlord “may pursue any one or more of the
following remedies separately or concurrently.” This language
states plainly and unambiguously that the landlord was permitted to
take any of the remedies listed in paragraph 20 in the event of
default, including 20(b), which required only written notice of
termination and not time to cure the default. The court's proper
construction of this language constitutes competent evidence for
its finding that no 15-day notice was required.
Defendant makes no arguments as to the conclusions of law
drawn by the trial court. Because the trial court's findings of
fact were supported by competent evidence, we affirm its judgment.
Affirmed.
Judges McGEE and BRYANT concur.
Report per Rule 30(e).
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