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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
CHRISTIAN EMERSON DYSART and MILDRED MAXWELL DYSART, Plaintiffs,
v. WILLIAM KENT CUMMINGS and KIMBERLY N. CUMMINGS, Defendants
Filed: 20 February 2007
Vendor and Purchaser_contract to purchase home_cost of repair contingency_termination
of contract_return of earnest money
The trial court did not err in a breach of contract case by entering summary judgment
allowing plaintiff purchasers to recover the $10,500 earnest money deposit they gave to
defendant sellers after plaintiffs terminated the contract to purchase a home based upon structural
defects where a cost of repair contingency addendum to the purchase contract permitted plaintiffs
to terminate the contract and reclaim their earnest money if a reasonable estimate of the cost of
repairs discovered pursuant to inspections permitted by the contract exceeds $1,000, and
plaintiffs acted in a reasonable manner and in good faith and fair play when, within the 14-day
time period for inspections stated in the contract, they arranged inspections of the home, received
reports that the home had structural defects that would cost more than $10,000 to repair, and
gave notice to defendants that they were exercising their option under the cost of repair
contingency addendum to terminate the contract.
Judge STROUD dissenting.
Appeal by defendants from order entered 1 March 2006 by Judge
Kenneth C. Titus in Wake County Superior Court. Heard in the Court
of Appeals 10 January 2007.
Boyce & Isley, PLLC, by Philip R. Isley, for plaintiffs-
Bass, Bryant & Fanney, P.L.L.C., by John Walter Bryant and Eva
C. Currin, for defendants-appellants.
William Kent Cummings and wife, Kimberly N. Cummings,
(defendants) appeal from order entered granting Christian Emerson
Dysart and wife, Mildred Maxwell Dysart's (plaintiffs) motion for
summary judgment. We affirm.
On 26 August 2003, plaintiffs offered to purchase defendants'
home located at 2512 White Oak Road in Raleigh, North Carolina,pursuant to an Offer to Purchase and Contract (the Contract).
The Contract recited a purchase price of $1,200,500.00 and an
earnest money deposit of $10,500.00. The deposit was tendered by
plaintiffs with the Contract and received by defendants and held in
escrow. Defendants signed the Contract that day. The Contract
included an attached document, entitled ADDITIONAL PROVISIONS
ADDENDUM (the Cost of Repair Contingency), which was signed
simultaneously. The Addendum states:
9. COST OF REPAIR CONTINGENCY: If a reasonable
estimate of the total cost of repairs required
by Paragraph 12(b) and Paragraph 12(c) of the
Offer to Purchase and Contract equals or
exceeds $10,000.00, then Buyer shall have the
option to terminate this Contract and all
earnest monies shall be returned to Buyer.
IN THE EVENT OF A CONFLICT BETWEEN THIS
ADDENDUM AND THE OFFER TO PURCHASE AND
CONTRACT, THIS ADDENDUM SHALL CONTROL.
Paragraph 12(b) and Paragraph 12(c) of the contract state:
12. (b) Property Inspections: Unless otherwise
stated herein, Buyer shall have the option of
inspecting, or obtaining at Buyers expense
inspections, to determine the condition of the
Property. Unless otherwise stated herein, it
is a condition of this contract that (i) the
built-in appliances, electrical system,
plumbing system, heating and cooling systems,
roof coverings (including flashing and
gutters), doors and windows, exterior
surfaces, structural components (including
foundations, columns, chimneys, floors, walls,
ceilings, and roofs), porches and decks,
fireplaces and hues, crawl space and attic
ventilation systems (if any), water and sewer
systems (public and private), shall be
performing the function for which intended and
shall not be in need of immediate repair; (ii)
there shall be no unusual drainage conditions
or evidence of excessive moisture adversely
affecting the structure(s) and (iii) there
shall be no friable asbestos or existing
environmental contamination. Any inspections
shall be completed and written notice ofnecessary repairs shall be given to Seller on
or before 14 days after acceptance. Seller
shall provide written notice to Buyer of
Seller's response within 5 days of Buyer's
notice. Buyer is advised to have any
inspections made prior to incurring expenses
for Closing and in sufficient time to permit
any required repairs to be completed by
[12.](c) Wood-Destroying Insects: Unless
otherwise stated herein, Buyer shall have the
option of obtaining, at Buyer's expense, a
report from a licensed pest control operator
on a standard form in accordance with the
regulations of the North Carolina Structural
Pest Control Committee, stating that as to all
structures except N/A, there was no visible
evidence of wood-destroying insects and
containing no indication of visible damage
therefrom. The report must be obtained in
sufficient time so as to permit treatment, if
any, and repairs, if any, to be completed
prior to Closing. All treatment required
shall be paid for by Seller and completed
prior to Closing, unless otherwise agreed upon
in writing by the parties. The Buyer is
advised that the inspection report described
in this paragraph may not always reveal either
structural damage or damage caused by agents
or organisms other than wood-destroying
insects. If new construction, Seller shall
provide a standard warranty of termite soil
The Contract also stated, [i]n the event: (1) this offer is not
accepted; or (2) any of the conditions hereto are not satisfied,
then all earnest monies shall be returned to Buyer . . . .
On 8 September 2003, Philip W. McLean, Sr. (McLean), a
licensed North Carolina home inspector, conducted a home inspection
for plaintiffs. McLean's inspection reported a [s]ignificant
settlement crack at the left front corner. (the crack appears to
start at the bottom and run up through and to the 2nd floor). (b)
A crack in the stucco (left rear of garage wall). Furtherevaluation is warranted. McLean's affidavit stated his report
was made available to Plaintiffs on September 9, 2003.
Also on 8 September 2003, Mitchell Fluhrer (Fluhrer), a
structural engineer, inspected the house. His evaluation noted
structural defects to the house. Fluhrer stated in his affidavit
that in [his] professional opinion [he] would expect that this
repair would well exceed more than $10,000. Fluhrer provided two
separate letters dated 10 September 2003 and 11 September 2003 to
plaintiff Christian Dysart that stated his findings.
Plaintiff Mildred Maxwell Dysart stated in her deposition that
[l]ater in the day of September 9, 2003, we instructed our realtor
to terminate the contract pursuant to paragraph 9 of the Additional
Provisions Addendum to the Offer to Purchase and Contract . . . .
Our realtor faxed a notice of termination of the contract to the
seller's realtor that same day.
On 9 September 2003, defendants' real estate agent, Mary Edna
Williams (Williams), received a facsimile by telecopy from
plaintiffs' real estate agent, Bill Sewell (Sewell). This
facsimile stated Buyer had decided to terminate contract per
additional provisions addendum #9. The facsimile included the
North Carolina Association of Realtors standard form Termination
of Contract and Release of Earnest Money signed by plaintiffs on
9 September 2003 and a copy of the signed Additional Provisions
On 10 or 11 September 2003, Steve Schmidt, a superintendent
for McDonald-York, Inc., a commercial construction company located
in Raleigh, North Carolina, evaluated the house. At that time, hehad in his possession a letter written by Fluhrer and McLean's
inspection report. During his inspection, he determined that the
left front corner of this house is leaning to the left 2.175 inches
. . . at the tope [sic] of the wall. As viewed by the left side
this corner is leaning 0.365 inches to the right. This is
indicative of a foundation failure at this corner. Schmidt
prepared a written estimate of the total cost of repair for
On 11 or 12 September 2003, plaintiffs hand delivered and
Williams, defendants' broker, received a letter that delineated the
reasons for termination and demanded return of the $10,500.00
earnest money held in escrow. Williams stated in her deposition
that [o]n or after September 9, 2003, I received a home inspection
report by Philip McLean, two reports from Fluhrer Reed with dates
of September 10 and 11, 2003 and an estimate from MY Homes dated
September 12, 2003, which documents were also faxed to Kent
Cummings. Williams stated, [t]he house was taken off the market
when the Offer to Purchase and Agreement was signed by the Dysarts
and Cummings. The house was put back on the market on September 9,
2003 to take back-up offers.
On 12 September 2003, plaintiffs delivered Schmidt's estimate
to Williams and again demanded the return of the $10,500.00 deposit
held in escrow. Defendants refused to release and return the
Defendants contacted Marty Graff (Graff), a licensed
contractor, to evaluate McLean's, Fluhrer's, and Schmidt's
estimates. On 24 September 2003, Graff inspected the house andestimated the cost of repairs was less than $10,000.00. Graff
stated in his affidavit he repaired the defects as listed in the
home inspections report for $6,986.11. In August 2004, after the
repairs were completed, the house appraised for $1,029,000.00.
Defendants sold the house to another buyer for $1,020,000.00 on 10
On 10 May 2004, plaintiffs filed a complaint against
defendants to recover the $10,500.00 earnest money held in escrow.
Plaintiffs alleged breach of contract, conversion, unjust
enrichment, and sought a declaratory judgment. On 11 October 2004,
defendants answered, raised the affirmative defenses of waiver,
estoppel, set-off, and counterclaimed for breach of contract and
sought a declaratory judgment.
On 17 February 2006, plaintiffs moved for summary judgment.
On 27 February 2006, the trial court conducted a hearing and the
trial court entered summary judgment in favor of plaintiffs on 1
March 2006. Defendants appeal.
Defendants argue plaintiffs, not defendants, breached the
Contract and summary judgment for plaintiffs is error.
III. Standard of Review
Summary judgment is proper 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 any material fact and that
any party is entitled to a judgment as a
matter of law. The party moving for summary
judgment ultimately has the burden of
establishing the lack of any triable issue of
A defendant may show entitlement to summary
judgment by (1) proving that an essential
element of the plaintiff's case is non-
existent, or (2) showing through discovery
that the plaintiff cannot produce evidence to
support an essential element of his or her
claim, or (3) showing that the plaintiff
cannot surmount an affirmative defense.
Summary judgment is not appropriate where
matters of credibility and determining the
weight of the evidence exist.
Once the party seeking summary judgment makes
the required showing, the burden shifts to the
nonmoving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, showing that he can at
least establish a prima facie case at trial.
To hold otherwise . . . would be to allow
plaintiffs to rest on their pleadings,
effectively neutralizing the useful and
efficient procedural tool of summary judgment.
Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580
S.E.2d 732, 735 (2003) (internal citations and quotations omitted),
aff'd per curiam, 358 N.C. 131, 591 S.E.2d 521 (2004).
an order allowing summary judgment de novo. Summey v. Barker, 357
N.C. 492, 496, 586 S.E.2d 247, 249 (2003)
IV. Breach of Contract
The right to contract is recognized as being within the
protection of the Fifth and Fourteenth Amendments to the
Constitution of the United States . . . and protected by state
constitutions. Alford v. Insurance Co., 248 N.C. 224, 227, 103
S.E.2d 8, 10-11 (1958). Persons . . . have a right to make any
contract not contrary to law or public policy. Fulcher v. Nelson,
273 N.C. 221, 223, 159 S.E.2d 519, 521 (1968) (quoting 2 Strong,
North Carolina Index 2d, Contracts § 1). [W]hen parties are on
equal footing, competent to contract, enter into an agreement on a
lawful subject, and do so fairly and honorably, the law does notpermit inquiry as to whether the contract was good or bad, whether
it was wise or foolish. Knutton v. Cofield, 273 N.C. 355, 363,
160 S.E.2d 29, 36 (1968).
The heart of a contract is the intention of the parties,
which is to be ascertained from the expressions used, the subject
matter, the end in view, the purpose sought, and the situation of
the parties at the time. Electric Co. v. Insurance Co., 229 N.C.
518, 520, 50 S.E.2d 295, 297 (1948); see Lane v. Scarborough, 284
N.C. 407, 409-10, 200 S.E.2d 622, 624 (1973) (When a court is asked
to interpret a contract, its primary purpose is to ascertain the
intention of the parties.). The intention of the parties is
gleaned from the entire instrument and not from detached portions.
International Paper Co. v. Corporex Constructors, Inc., 96 N.C.
App. 312, 316, 385 S.E.2d 553, 555 (1989).
It is well settled that a contract is construed as a whole.
Id. Individual clauses are to be considered in context. Id. at
316, 385 S.E.2d at 555-56. All parts of the contract will be
given effect if possible. Id. at 316, 385 S.E.2d at 556. Where
a contract confers on one party a discretionary power affecting the
rights of the other, this discretion must be exercised in a
reasonable manner based upon good faith and fair play. Mezzanotte
v. Freeland, 20 N.C. App. 11, 17, 200 S.E.2d 410, 414 (1973), cert.
denied, 284 N.C. 616, 201 S.E.2d 689 (1974). A contract that is
plain and unambiguous on its face will be interpreted by the court
as a matter of law. Lane, 284 N.C. at 410, 200 S.E.2d at 624-25.
In Midulla v. Howard A. Cain, Inc., this Court affirmed
summary judgment in favor of plaintiffs. 133 N.C. App. 306, 308-309, 515 S.E.2d 244, 246-47 (1999). The parties' contract
contained the same addendum that is before us here. Id. This
Court held plaintiffs' offer was contingent on a [r]eview of
covenants and restrictions, the body of which are satisfactory to
Buyer. Id. at 309, 515 S.E.2d at 246. Pursuant to the addendum
to the contract, plaintiffs had the discretion to cancel the
Contract if they were not satisfied with the covenants and
restrictions governing the area where the property was located.
This Court affirmed summary judgment for plaintiffs and held:
[t]he Contract gave plaintiffs the
discretionary power to cancel the Contract if
they were not satisfied with the covenants and
restrictions. The record reflects that
plaintiffs believed that the covenants and
restrictions exposed them to the risk of
becoming obligated for payments in which they
had an inadequate voice in approving. Under
the terms of the Contract, this would be an
adequate reason to cancel the Contract.
Id. at 309-10, 515 S.E.2d at 247.
As stated above, the Addendum to the Contract included a Cost
of Repair Contingency clause, which states:
9. COST OF REPAIR CONTINGENCY: If a
reasonable estimate of the total cost of
repairs required by Paragraph 12(b) and
Paragraph 12(c) of the Offer to Purchase and
Contract equals or exceeds $10,000.00, then
Buyer shall have the option to terminate this
Contract and all earnest monies shall be
returned to Buyer.
IN THE EVENT OF A CONFLICT BETWEEN THIS
ADDENDUM AND THE OFFER TO PURCHASE AND
CONTRACT, THIS ADDENDUM SHALL CONTROL.
(Emphasis supplied). On 8 or 9 September 2003, plaintiffs obtained an estimate from
McLean, a licensed North Carolina home inspector, and Fluhrer, a
structural engineer, that the estimated total cost of repairs
exceeded $10,000.00. On 9 September 2003, plaintiffs faxed, and
defendants received, a North Carolina Association of Realtors
standard form Termination of Contract and Release of Earnest
Money signed by plaintiffs. The form's cover sheet stated Buyer
had decided to terminate contract per additional provisions
addendum #9. On 9 September 2003, defendants placed their house
back on the market to accept back-up offers.
The Cost of Repair Contingency gave plaintiffs the
discretionary power to terminate the contract. See Midulla, 133
N.C. App. at 307, 515 S.E.2d at 245 (The buyer's contract to
purchase was contingent upon a review of covenants and
restrictions, the body of which are satisfactory to Buyer.); see
also Mezzanotte, 20 N.C. App. at 13, 200 S.E.2d at 412 (The buyer's
contract to purchase was contingent upon the buyer's ability to
secure a second mortgage from North Carolina National Bank on such
terms and conditions as are satisfactory to them in order to
finance the closing and to secure additional working capital.).
Plaintiffs also acted in a reasonable manner and in good faith
and fair play when they promptly arranged and received a home
inspection within the fourteen-day time frame stated in paragraph
12(b), even though the fourteen-day time period was not explicitly
stated in the Cost of Repair Contingency Addendum.
Both McLean, a licensed home inspector, and Fluhrer, a
structural engineer, notified plaintiffs within the fourteen-dayperiod that structural problems existed with the house, and
estimated repairs would exceed $10,000.00. Plaintiffs notified
Sewell, their broker, within the fourteen-day period that they
intended to terminate the Contract pursuant to the Cost of Repair
Contingency. Sewell notified Williams, defendants' broker, within
the fourteen-day period through telecopy that Buyer had decided to
terminate contract per additional provisions addendum #9.
Williams stated in her affidavit that [t]he house was put back on
the market on September 9, 2003 to take back-up offers.
Plaintiffs promptly and properly exercised their discretionary
right to cancel the contract after determining the estimated cost
of repairs within fourteen days, although they were not explicitly
required to do so under the Addendum. Plaintiffs promptly notified
Sewell, who notified Williams of plaintiffs' intent to terminate
the Contract pursuant to the Cost of Repair Contingency.
Plaintiffs promptly and properly terminated the Contract, which
defendants acknowledged by placing the house back on the market for
sale within fourteen days of the Contract. Plaintiffs are entitled
to the return of their earnest money deposited with defendants.
This assignment of error is overruled.
The contract was properly interpreted by the trial court as a
matter of law. Lane, 284 N.C. at 410, 200 S.E.2d at 624-25. The
trial court did not err by granting summary judgment in favor of
plaintiffs and properly ordering the $10,500.00 earnest money
deposit to be returned to plaintiffs. The trial court's order is
Judge STEPHENS concurs.
Judge STROUD dissents by separate opinion.
STROUD, Judge dissenting.
I conclude that there are genuine issues of material fact as
to whether plaintiffs provided adequate notice of termination of
the purchase contract and whether plaintiffs' termination of the
contract was based upon a reasonable estimate of the cost of
necessary repairs to the property. Accordingly, I would reverse
the trial court order granting summary judgment in favor of
plaintiffs and remand this case to Superior Court, Wake County for
trial. For this reason, I respectfully dissent.
Summary judgment is appropriate when 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 any material fact and that any party is entitled to a
judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c)
(2005). When considering a motion for summary judgment, the trial
judge must view the presented evidence in a light most favorable to
the nonmoving party, Dalton v. Camp
, 353 N.C. 647, 651, 548 S.E.2d
704, 707 (2001); thus, facts asserted by the nonmoving party are
presumed to be true, see e.g., Norfolk & W. Ry. Co. v. Werner
, 286 N.C. 89, 97, 209 S.E.2d 734, 738 (1974), and the
moving party carries the burden of proof to show that there is no
triable issue of fact, Boudreau v. Baughman
, 322 N.C. 331, 342, 368
S.E.2d 849, 858 (1988). On appeal, this Court conducts de novo
review of a trial court order granting summary judgment. See
Summey v. Barker
, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003).
Defendants present two questions for review by this Court:
(1) whether plaintiffs breached the purchase contract by failing to
provide defendants with a list of necessary repairs within fourteen
days of entering the contract and (2) whether plaintiffs breached
the purchase contract by terminating the contract based on an
unreasonable repair estimate. The trial court's order awarding
summary judgment to plaintiffs is appropriate only if the
pleadings, affidavits, and other evidence show as a matter of law
that plaintiffs' termination was permitted by the purchase
contract. Two clauses contained in the purchase contract govern my
analysis of these issues: (1) contract clause 12, titled Property
Disclosure and Inspections and (2) addendum clause 9, titled Cost
of Repair Contingency. The purchase contract entered into by the
parties was a standard form Offer to Purchase and Contract
jointly approved by the North Carolina Bar Association and the
North Carolina Association of Realtors.
Contract clause 12 defines plaintiffs' right to inspect the
property and provides in pertinent part that
[a]ny inspections shall be completed and
of necessary repairs shall be
given to Seller [defendants] on or before 14
days after acceptance
. . . . [I]f any repairs
are necessary, Seller [defendants] shall have
the option of completing them or refusing to
complete them. If Seller [defendants] elects
not to complete the repairs, then Buyer
[plaintiffs] shall have the option of
accepting the [p]roperty in its present
condition or terminating this contract, in
which case all earnest monies shall be
(Emphasis added.) Addendum clause 9 permits plaintiffs to choose
to terminate the contract and reclaim their earnest money [i]f a
of the total cost of repairs discovered
pursuant to the inspections permitted by contract clause 12
Because contract provisions should not be construed as
conflicting unless no other reasonable interpretation is possible,
International Paper Co. v. Corporex Constructors, Inc.
, 96 N.C.
App. 312, 316, 385 S.E.2d 553, 556 (1989), this Court must first
consider whether addendum clause 9 and contract clause 12 can be
reconciled. I conclude that these clauses may be read together
The plain language of addendum clause 9, expressly
incorporates contract clause 12; thus, addendum clause 9 also
requires the estimate of the total cost of repairs be provided to
defendants in writing . . . on or before 14 days after acceptance
of plaintiffs' offer to purchase. If the clauses were read
separately, then plaintiffs would be permitted to exercise an
option to terminate at any time
, even on the day of closing. This
alternative interpretation, which is advanced by plaintiffs, is
unsupported by the incorporation of contract clause 12 into
addendum clause 9 and results in illogical and unintended
consequences in the performance of the contract. The
interpretation of these clauses is of particular concern because
the Offer to Purchase and Contract at issue is a standard form
contract which is used extensively in North Carolina real estate
transactions. Although plaintiffs notified defendants' real estate agent by
fax that they had decided to terminate contract per additional
provisions addendum #9 within 14 days of acceptance, it is
undisputed that the fax did not state why plaintiffs were
terminating the contract, did not include a list of necessary
repairs, and did not contain an estimate of the cost of repairs.
Plaintiffs did not provide any further details of their decision to
terminate until after the 14 day period had passed. Considering
this evidence in the light most favorable to defendants, I would
hold that there is a question of material fact as to whether
plaintiffs provided adequate notice of termination pursuant to
contract clause 12 and addendum clause 9 of the Offer to Purchase
and Contract entered into by the parties.
As stated above, addendum clause 9 is a Cost of Repair
Contingency provision. The majority concludes that this clause
gave plaintiffs discretionary power to terminate the contract
subject only to a requirement that plaintiffs act in a
reasonable manner and in good faith, citing Mezzanotte v.
, 20 N.C. App. 11, 200 S.E.2d 410 (1973), cert. denied
N.C. 616, 201 S.E.2d 689 (1974) and Midulla v. Howard A. Cain Co.
133 N.C. App. 306, 515 S.E.2d 244 (1999) in support of its
decision. I find the contingency clauses at issue in Mezzanotte
dispositively different from addendum clause 9.
, the real estate contract provided [t]his
agreement is contingent upon parties of the second part [plaintiff]
being able to secure a second mortgage from North Carolina National
Bank on such terms and conditions as are satisfactory to them
inorder to finance the closing and to secure additional working
capital . . .. 20 N.C. App. at 13, 200 S.E.2d at 412 (alteration
in original) (emphasis added). In Midulla
, the real estate
contract provided that the plaintiffs' offer to purchase was
contingent upon [r]eview of [residential] covenants and
restrictions, the body of which are satisfactory
[plaintiffs]. 133 N.C. App. at 307, 515 S.E.2d at 245 (emphasis
added). In both Mezzanotte
, this Court determined that
the plaintiff buyers had discretionary power to terminate the
respective real estate contracts because they were not satisfied,
and the Court emphasized that an implied promise of good faith and
reasonable effort accompanies any discretionary option to
terminate a real estate contract that is contingent on one party's
(See footnote 1)
, 20 N.C. App. at 17, 200 S.E.2d at
, 133 N.C. App. at 309, 515 S.E.2d at 246.
In the case sub judice
, plaintiffs' option to terminate the
real estate contract is contingent on a reasonable estimate
total cost of repairs, not on an estimate that is satisfactory
(See footnote 2)
Although discretionary in the sense that plaintiffsmay choose to honor the purchase contract despite the existence of
necessary repairs in excess of $10,000, plaintiffs' right to
terminate the contract pursuant to addendum clause 9 is expressly
limited by the requirement that the estimated cost of repairs be
reasonable. This means that to prevail on summary judgment,
plaintiffs must show that they obtained a reasonable estimate of
the total cost of repairs in excess of $10,000.
Reasonableness is a quintessential jury question. See Radford
, 63 N.C. App. 501, 503, 305 S.E.2d 64, 65 (1983) (Since
the test is one of reasonableness, and depends upon the
circumstances of the particular case, it is a jury question except
in the clearest of cases.). North Carolina courts consistently
hold that reasonableness is a factual issue for the jury in many
different types of cases. See Marcus Bros. Textiles, Inc. v. Price
, 350 N.C. 214, 224, 513 S.E.2d 320, 327 (1999) (The
question of justifiable reliance in an action for negligent
misrepresentation is analogous to that of reasonable reliance in
fraud actions, where it is generally for the jury to decide whether
plaintiff relied upon the representations made by defendant.)(internal quotation omitted); State Props. LLC v. Ray
, 155 N.C.
App. 65, 73, 574 S.E.2d 180, 186 (2002) (In an action for fraud,
[t]he reasonableness of a party's reliance is a question for the
jury, unless the facts are so clear that they support only one
conclusion.); NationsBank of N.C., N.A. v. American Doubloon
, 125 N.C. App. 494, 499, 481 S.E.2d 387, 390 (1997) (The
commercial reasonableness of a bank's retention of collateral after
default on a loan is a jury question and does not readily lend
itself to summary judgment because reasonable minds may differ
over what is commercially reasonable.); Smith v. Martin
, 124 N.C.
App. 592, 600, 478 S.E.2d 228, 233 (1996) (The reasonableness of a
plaintiff's mitigation efforts in an action for wrongful
cancellation of a deed of trust depends upon the facts and
circumstances of the particular case and is a jury question except
in the clearest of cases.); Snead v. Holloman
, 101 N.C. App. 462,
467-68, 400 S.E.2d 91, 94 (1991) (The reasonableness of a
plaintiff's failure to follow medical advice in a negligence action
is a jury question that is relevant to the amount of damages the
plaintiff may recover.). However, by expressly determining that
[p]laintiffs acted in a reasonable manner and in good faith, the
majority removes this question from jury consideration and resolves
the issue as a matter of law. Considering the evidence presented
in the light most favorable to defendants, I would hold that there
is a genuine issue of material fact as to whether the repair
estimate obtained by plaintiffs was reasonable.
My decision is supported by the following evidence forecast by
defendants: (1) plaintiffs' initial estimate by McLean was basedupon a cursory inspection during which McLean did not even look at
the foundation under defendants' house; even so, McLean gave the
opinion that the foundation was settling and major repairs were
needed, (2) the crack McLean observed on the exterior of the home
was not an indication of settling at all but was actually a
superficial defect caused by water dripping into the stonework from
leaky gutters, (3) plaintiffs' estimate of $58,910.23 was not
credible when considering that defendants actually completed the
necessary repairs for $6,986.11, and, (4) plaintiffs had given
other reasons for wanting to terminate the contract that were
unrelated to the condition of the house. From this evidence, a
jury could find that plaintiffs' repair estimate was unreasonable.
For the reasons stated above, I would reverse the trial
court's order awarding summary judgment to plaintiffs and remand
this case to Superior Court, Wake County for trial. Accordingly,
I respectfully dissent.
, this Court reviewed a trial court's entry of
summary judgment against the sellers. 133 N.C. App. at 308, 515
S.E.2d at 245. Because the sellers did not offer any evidence of
bad faith on the part of the buyers, this Court affirmed the trial
court order; however, summary judgment
would have been
inappropriate in Mezzanotte
if the plaintiffs' affidavits had
contained factual allegations giving rise to a jury question of bad
faith, or, as in the case sub judice
, reasonableness. Id.
515 S.E.2d at 246.
, this Court reviewed a judgment entered
pursuant to N.C. Gen. Stat. § 1A-1, Rule 52 following a bench
trial. 20 N.C. App. at 14, 200 S.E.2d at 413. On appeal, this
Court considered whether the trial court's findings of fact were
supported by competent evidence and whether the court's findings offact supported its conclusions of law. See Hollerbach v.
, 90 N.C. App. 384, 387, 368 S.E.2d 413, 415 (1988) (The
standard by which we review the findings [of a trial court sitting
without a jury] is whether any competent evidence exists in the
record to support them.). This standard of review is
significantly different from the standard at issue in the case sub
, which requires this Court to determine whether there is a
genuine issue of material fact for jury consideration. Moreover,
the plaintiff buyers filed an action to enforce
contract for sale, and defendant sellers argued that the purchase
contract was illusory because the contingency was based on
plaintiffs' satisfaction. 20 N.C. App. at 16-17, 200 S.E.2d at
414. Here, the issue is whether plaintiffs breached the contract,
not whether the contract itself is supported by adequate
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