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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.
HAROLD LANE PARKER, Plaintiff, v. DOUGLAS GLOSSON, Defendant
Filed: 20 March 2007
Vendor and Purchaser--standard form agreement for purchase and sale of real property--
signed by one of two named sellers_invalidity
A standard form agreement for the purchase and sale of real property was not a valid
contract where it was signed by only one of the two named sellers, and language in the agreement
providing that it shall become an enforceable contract when a fully executed copy has been
communicated to both parties demonstrates that the parties did not intend to have a valid
contract until it was signed by all parties.
Judge TYSON dissenting.
Appeal by plaintiff from order entered 20 February 2006 by
Judge Larry G. Ford in Superior Court, Davidson County. Heard in
the Court of Appeals 24 January 2007.
Eric C. Morgan, P.A., by Eric C. Morgan, and L. G. Gordon,
Jr., P.A., by L.G. Gordon, Jr. for plaintiff-appellant.
Biesecker, Tripp, Sink & Fritts, L.L.P., by Joe E. Biesecker
and Christopher Alan Raines, for defendant-appellee.
This is a breach of contract action concerning a standard form
Agreement for Purchase and Sale of Real Property (Agreement) that
is signed by only one of two named sellers. The dispositive
question before this Court is whether there is a valid contract
between the buyer and the signing seller. Because the Agreement
expressly provides that it shall become an enforceable contract
when a fully executed copy has been communicated to both parties,
but one party has not signed the Agreement, we conclude that there
is no valid contract.
Plaintiff Harold Parker filed a civil complaint against
defendant Douglas Glosson in Superior Court, Davidson County on 4
January 2006. In the complaint, plaintiff alleged that defendant
breached a contract to sell thirty-six acres of real property,
including a truck shop, warehouse, and offices, located in
Lexington, N.C. Plaintiff further alleged that he made demand for
[c]losing on the [p]roperty and offered to tender the closing
price, but that defendant ignored his requests. In his prayer for
relief, plaintiff sought specific performance and, alternatively,
Plaintiff attached a copy of the Agreement to his complaint,
labeling the document Exhibit A. Clause thirteen of the
Agreement provides: This Agreement shall become an enforceable
when a fully executed
copy has been communicated to both
parties. (Emphasis added.) Although the Agreement names Douglas
Sandy Glosson as the sellers of the disputed property,
only Douglas Glosson has signed the document. Plaintiff's
complaint alleged that Douglas Glosson is the owner of the
property and the remaining allegations contained therein do not
mention Sandy Glosson.
On 3 February 2006, defendant filed a motion to dismiss
plaintiff's complaint for failure to state a claim upon which
relief can be granted pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6). Judge Larry G. Ford heard defendant's motion on 20February 2006, at which time defendant argued that no valid
contract existed between the parties because the Agreement, on its
face, shows that the parties did not intend to be bound by a
contractual relationship until both sellers and the buyer signed
the document. Plaintiff responded that the Agreement satisfies the
statute of frauds and that there are many outstanding questions of
fact concerning Sandy Glosson and her interest in the property that
make dismissal improper.
On 21 February 2006, Judge Ford entered an order dismissing
plaintiff's complaint. In his order, Judge Ford concluded that
the complaint fails to state a claim upon which the relief prayed
in the complaint can be granted because there is no valid
contract. Plaintiff appealed.
II. Standard of Review
This Court reviews dismissal of a complaint pursuant to N.C.
Gen. Stat. § 1A-1, Rule 12(b)(6), de novo
. Acosta v. Byrum
N.C. App. 562, 638 S.E.2d 246 (2006). The word 'de novo
fresh or anew; for a second time, In re Reassignment of Hayes
N.C. 616, 622, 135 S.E.2d 645, 649 (1964), and an appeal de novo
is an appeal in which the appellate court uses the trial court's
record but reviews the evidence and law without deference to the
trial court's rulings, Black's Law Dictionary
94 (7th ed. 1999).
Thus, we consider the parties' pleadings, together with the
transcript of the parties' argument below, to determine whether
defendant met the applicable burden of proof. To prevail on a Rule 12(b)(6) motion to dismiss, the defendant
must show that as a matter of law, the allegations of the
complaint, treated as true, are sufficient to state a claim upon
which relief may be granted under some legal theory, whether
properly labeled or not. Harris v. NCNB Nat'l Bank
, 85 N.C. App.
669, 670, 355 S.E.2d 838, 840 (1987). The complaint must allege
the substantive elements of a legally recognized claim and must
give sufficient notice of the events which produced the claim to
enable the adverse party to prepare for trial. People's Sec. Life
Ins. Co. v. Hooks
, 322 N.C. 216, 218, 367 S.E.2d 647, 648-49
(1988). If a complaint disclos[es] . . . [a] fact which will
necessarily defeat the plaintiff's claim, then it will be
dismissed. Forbis v. Honeycutt
, 301 N.C. 699, 701, 273 S.E.2d 240,
241 (1980). Documents attached as exhibits to the complaint and
incorporated therein by reference are properly considered when
ruling on a 12(b)(6) motion. Woolard v. Davenport
, 166 N.C. App.
129, 133-34, 601 S.E.2d 319, 322 (2004).
III. Contract Formation
The elements of a claim for breach of contract are (1)
existence of a valid contract and (2) breach of the terms of that
contract. Poor v. Hill
, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843
(2000). No contract is formed without an agreement to which at
least two parties manifest an intent to be bound. Croom v.
Goldsboro Lumber Co., Inc.
, 182 N.C. 217, 220, 108 S.E. 735, 737
(1921) (mutual assent is an essential element of every contract);
see also Kirby v. Stokes Cty. Bd. of Educ.
, 230 N.C. 619, 626, 55S.E.2d 322, 327 (1949) (A contract is an agreement between two or
more persons or parties [based] on sufficient consideration to do
or refrain from doing a particular act.). In law, this agreement
is commonly called mutual assent and is customarily described as a
meeting of the minds. See Charles Holmes Mach. Co. v. Chalkley
143 N.C. 181, 183, 55 S.E. 524, 525 (1906) (The first and most
essential element of an agreement is the consent of the parties, an
, or meeting of two minds in one and the same
intention, and until the moment arrives when the minds of the
parties are thus drawn together, the contract is not complete, so
as to be legally enforceable.).
There is no meeting of the minds, and, therefore, no contract,
when in the contemplation of both parties . . . something remains
to be done to establish contract relations. Fed. Reserve Bank v.
Neuse Mfg. Co. Inc.
, 213 N.C. 489, 493, 196 S.E. 848, 850 (1938).
This rule has been described as too well established to require
the citation of authority. Id.
Thus, if negotiating parties
impose a condition precedent on the effectiveness of their
agreement, no contract is formed until the condition is met.
Likewise, when negotiating parties make it clear that they do not
intend to be bound by a contract until a formal written agreement
is executed, no contract exists until that time. Hilliard v.
, 81 N.C. App. 404, 409, 344 S.E.2d 589, 592 (1986)
(Whichard, J., concurring and stating the majority holding)
(concluding because [t]he uncontroverted forecast of evidence . .
. establishes that defendant manifested an intent that the allegedagreement was not to be binding unless his wife became a party by
agreeing to it, and that his wife refused to sign and become a
party . . . . I would hold that the plaintiffs cannot enforce the
(See footnote 1)
; see also Burgin v. Owen
, 181 N.C. App. 511,
___ S.E.2d ___ (filed Feb. 6, 2007) (affirming the trial court
order which granted the defendant's Rule 12(b)(6) motion to dismiss
plaintiff's complaint alleging breach of contract and specific
performance because (1) N.C. Gen. Stat. § 39-13.6(a) (2005)
provides that a husband may not convey real property held as
tenancy by the entirety without his wife's signature, and (2) the
defendant's wife did not sign the Offer to Purchase and Contract).
Here, clause 13 of the Agreement for Purchase and Sale of Real
Property [the Agreement] expressly provides [t]his [a]greement
shall become an enforceable contract
when a fully executed
been communicated to both parties. (Emphasis added.) From this
language, we conclude that the sellers did not intend to sell, andthe buyer did not intend to buy, until the Agreement was signed by
all parties. The parties identified as Seller[s] at the top of
the first page of the Agreement are Douglas Glosson and Sandy
Glosson; however, only Douglas Glosson has signed on the Seller
signature lines at the end of the Agreement.
(See footnote 2)
Glosson has not signed the Agreement, the Agreement is not fully
executed and, therefore, no contract has been formed between the
parties as a matter of law.
The reason for holding the instrument
void is that it was intended that all the
parties should execute it and that each
executes it on the implied condition that it
is to be executed by the others, and,
therefore, that until executed by all it is
inchoate and incomplete and never takes effect
as a valid contract
, and this is especially
true where the agreement expressly provides or
its manifest intent is, that it is not to be
binding until signed
, 81 N.C. App. at 409, 344 S.E.2d at 591 (Whichard, J.
concurring) (internal quotation omitted) (emphasis added).
In reaching this result, we take the word execute to mean
sign, which is a familiar usage of this term at law and which is
the apparent meaning of the term in context. See Black's Law
589 (7th ed. 1999) (defining execute as a verb which
means [t]o make [a legal document] valid by signing); Harris v.
, 298 N.C. 555, 558, 259 S.E.2d 239, 241 (1979) (In
construing contracts ordinary words are given their ordinary
meaning unless it is apparent that the words were used in a specialsense.). For example, in Hilliard v. Thompson
, this Court
repeatedly used the term execute to refer to the signing of a
real estate contract. 81 N.C. App. at 408-09, 344 S.E.2d at 591-
Although we agree with plaintiff that a contract to sell or
convey an interest in real property is enforceable
if the essential
terms of the parties' agreement are evidenced in writing and that
writing is signed by the party to be charged, see
N.C. Gen. Stat.
§ 22-2 (2005) (contracts concerning interests in real property must
be in writing); Durham Consol. Land & Improvement Co. v. Guthrie
116 N.C. 381, 384, 21 S.E. 952, 953 (1895) (explaining that if A
contracts in writing to sell a tract of land to B, whose promise to
pay is not in writing, A would be bound to perform, but B would
not, if he saw proper to avail himself of the statute [of
frauds]), the issue sub judice
is one of contract formation, not
contract enforceability. Although plaintiff asserts that there are
outstanding questions of fact concerning Sandy Glosson's identity
and interest in the disputed property, plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief. Dixon v. Stuart
, 85 N.C. App. 338, 340, 354 S.E.2d 757,
758 (1987). The complaint disclos[es] . . . [a] fact which will
necessarily defeat plaintiff's claim for breach of contract.
Forbis v. Honeycutt
, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981).
The dispositive fact is that Sandy Glosson has not executed the
For the reasons stated above, we affirm the trial court order
granting defendant's motion to dismiss pursuant to N.C. Gen. Stat.
§ 1A-1, Rule 12(b)(6).
Judge STEPHENS concurs.
Judge TYSON dissents by separate opinion.
TYSON, Judge, dissenting.
The majority's opinion concludes no contract was formed
between Harold Lane Parker (plaintiff) and Douglas Glosson
(defendant) because Sandy Glosson (Sandy) did not execute the
agreement. The majority's opinion erroneously affirms the trial
court's order granting defendant's Rule 12(b)(6) motion to dismiss
plaintiff's breach of contract claim. I vote to reverse the trial
court's order. I respectfully dissent.
On 16 March 2005, plaintiff and defendant entered into a
written agreement for the purchase and sale of real property
located in Lexington, North Carolina. Plaintiff and defendant
signed a standard form Agreement for Purchase and Sale of Real
Property, approved by the North Carolina Association of Realtors.
Undisputed evidence shows the agreement: (1) did not include
plaintiff's name in the blank space as Buyer on its first page;
(2) listed defendant and Sandy as Seller; (3) included adescription of the property; (4) provided the purchase price; (5)
was signed by plaintiff as Buyer and defendant as Seller ; and
(6) was not signed by Sandy.
On 4 January 2006, plaintiff filed a complaint against
defendant alleging breach of the agreement to sell and convey the
real property. The agreement between the parties was attached to
and incorporated by reference into the complaint. Plaintiff sought
specific performance of the agreement or, in the alternative,
damages for defendant's breach of contract. Defendant did not
answer plaintiff's complaint. On 3 February 2006, defendant moved
to dismiss the complaint pursuant to N.C. Gen. Stat. § 1A-1, Rule
12(b)(6) on the ground that the complaint on its face fail[ed] to
show a claim upon which relief c[ould] be granted.
On 20 February 2006, a hearing was conducted on defendant's
motion to dismiss. Defendant asserted the lack of an enforceable
contract with plaintiff and argued the complaint must be dismissed
because: (1) the Buyer line on the first page of the agreement
was left blank and (2) Sandy did not execute or sign the agreement.
The trial court concluded there [was] no valid contract on 21
February 2006 and granted defendant's motion to dismiss. Plaintiff
Plaintiff argues the trial court erred by concluding there
[was] no valid contract and granting defendant's motion to dismiss
pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).
III. Standard of Review
Our Supreme Court has stated:
The test on a motion to dismiss for failure to
state a claim upon which relief can be granted
is whether the pleading is legally sufficient.
A complaint may be dismissed on motion filed
under Rule 12(b)(6) if it is clearly without
merit; such lack of merit may consist of an
absence of law to support a claim of the sort
made, absence of fact sufficient to make a
good claim, or the disclosure of some fact
which will necessarily defeat the claim. For
the purpose of a motion to dismiss, the
allegations of the complaint are treated as
true. A complaint is sufficient to withstand
a motion to dismiss where no insurmountable
bar to recovery on the claim alleged appears
on the face of the complaint and where
allegations contained therein are sufficient
to give a defendant notice of the nature and
basis of plaintiffs' claim so as to enable him
to answer and prepare for trial.
Forbis v. Honeycutt, 301 N.C. 699, 701, 273 S.E.2d 240, 241 (1981)
(internal citations omitted) (emphasis supplied).
This Court has stated, A complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that
plaintiff could prove no set of facts in support of his claim which
would entitle him to relief. In analyzing the sufficiency of the
complaint, the complaint must be liberally construed. Dixon v.
Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987) (internal
IV. Motion to Dismiss
The elements of breach of contract are (1) the existence of
a valid contract and (2) breach of the terms of the contract.
Long v. Long, 160 N.C. App. 664, 668, 588 S.E.2d 1, 4 (2003)
(citation omitted). Plaintiff's complaint alleged [plaintiff] and
[defendant] entered into a written agreement (Contract) for thepurchase and sale of the Property. Plaintiff also alleged
defendant stated he was going to 'back out' of the Contract and
would not sell the Property to [plaintiff] and that plaintiff had
tendered performance to close the transaction. Plaintiff alleged
a valid breach of contract claim. Id.
A. Statute of Frauds
Plaintiff argues the trial court improperly relied upon the
statute of frauds in reaching its decision. The majority's opinion
wholly fails to address this argument. The trial court committed
reversible error by relying on the statute of frauds upon
defendant's motion to dismiss.
At the hearing, defendant asserted no valid contract existed
between the parties and argued the complaint must be dismissed
because: (1) the Buyer line on the first page of the agreement
was left blank and (2) Sandy did not execute or sign the agreement.
During the hearing, plaintiff's counsel asked to provide the trial
court a case analyzing the statute of frauds. Although the trial
court responded the statute of frauds was not the whole reason I
made the decision to grant defendant's motion to dismiss, the
transcript shows the trial court granted defendant's motion based
in part upon a violation of the statute of frauds. N.C. Gen. Stat.
§ 22-2 (2005). The trial court stated:
[The statute of frauds is] not the whole
reason I made the decision. A lot of other
reasons I made the decision what [defendant's
counsel] said there. It wasn't just that.
That's not the whole reason. That
technicality -- we are dealing with lots of
technicalities here, but I think I'm going to
grant the 12(b)(6) motion and I think I'mcorrect. Maybe I'm not, that's why the roads
are paved between here and Raleigh.
This Court addressed similar facts in Brooks Distributing Co.
v. Pugh, 91 N.C. App. 715, 373 S.E.2d 300, rev'd per curiam, 324
N.C. 326, 378 S.E.2d 31 (1989). In Brooks, the trial court
dismissed a complaint that alleged breach of contract. 91 N.C.
App. at 717, 373 S.E.2d at 302. The trial court dismissed on the
ground that the statute of frauds required all the essential
elements of a covenant not to compete to be in writing. Id. This
Court affirmed the trial court's decision in part and reversed in
part on other matters, with Judge Cozort dissenting in part. Id.
at 722, 373 S.E.2d at 305.
Our Supreme Court reversed and adopted the rationale of Judge
Cozort's dissenting opinion which stated in relevant part:
It is inappropriate to consider, for purposes
of a motion under 12(b)(6), whether the
contract fails to comport with the statute of
frauds, because the defense that the statute
of frauds bars enforcement of a contract is an
affirmative defense that can only be raised by
answer or reply.
Id. at 723-24, 373 S.E.2d at 305 (internal citation and quotation
omitted) (emphasis supplied).
The statute of frauds is an affirmative defense that can only
be raised by answer or reply and cannot sustain any legal basis to
grant defendant's Rule 12(b)(6) motion to dismiss. Id.; N.C. Gen.
Stat. § 1A-1, Rule 8(c) (2005). Defendant failed to raise the
statute of frauds by answer or reply. This defense was not
properly before the trial court upon defendant's Rule 12(b)(6)
motion to dismiss. Id. The trial court erred by consideringdefendant's statute of frauds defense in ruling, in part, on
defendant's Rule 12(b)(6) motion to dismiss. I vote to reverse the
trial court's order granting defendant's motion to dismiss on this
B. Contract Formation
Alternatively, the majority's opinion holds plaintiff's
complaint discloses a dispositive fact that will defeat his claim
for breach of contract. The majority's opinion states Sandy's
failure to execute the agreement is dispositive in determining
whether a contract existed between plaintiff and defendant. I
In reaching their conclusion, the majority's opinion relies on
section thirteen of the agreement which states, This Agreement
shall become an enforceable contract when a fully executed copy has
been communicated to both parties. Here, the agreement was
executed by plaintiff as Buyer and defendant as Seller. Both
parties, the buyer and seller, executed the agreement. Sandy's
failure to execute the agreement is not dispositive in determining
whether a contract existed between plaintiff and defendant.
As noted above, a contract for the sale of real property must
satisfy the statute of frauds. N.C. Gen. Stat. § 22-2. The
All contracts to sell or convey any lands,
tenements or hereditaments, or any interest in
or concerning them, and all leases and
contracts for leasing land for the purpose of
digging for gold or other minerals, or for
mining generally, of whatever duration; and
all other leases and contracts for leasing
lands exceeding in duration three years fromthe making thereof, shall be void unless said
contract, or some memorandum or note thereof,
be put in writing and signed by the party to
be charged therewith, or by some other person
by him thereto lawfully authorized.
Long standing precedents hold that only the party to be
charged is required to sign the agreement in order for the
contract to be enforceable against him. Id. Our Supreme Court has
In various decisions construing the statute,
it is held that the party to be charged is the
one against whom relief is sought; and if the
contract is sufficient to bind him, he can be
proceeded against though the other could not
be held, because as to him the statute is not
sufficiently complied with. As expressed in
Mizell, Jr., v. Burnett, 49 N.C. 249: Under
the statute of frauds, a contract in writing
to sell land, signed by the vendor, is good
against him, although the correlative
obligation to pay the price is not in writing
and cannot be enforced against the purchaser.
Lewis v. Murray, 177 N.C. 17, 20, 97 S.E. 750, 751 (1919).
An agent of the party to be charged may also sign the
contract for the sale of land, and the contract will be enforceable
against the principal whether present or not. Blacknall v. Parish,
59 N.C. 70, 72-73 (1860); see also N.C. Gen. Stat. § 22-2 (or by
some other person by him thereto lawfully authorized). Parol
evidence may be used to prove the agent's authority to sign.
Wellman v. Horn, 157 N.C. 170, 172-73, 72 S.E. 1010, 1011 (1911);
see also Lewis v. Allred, 249 N.C. 486, 489, 106 S.E.2d 689, 692
(1959) ([A]uthority of an agent to sell the lands of another may
be shown aliunde or by parol.). Here, Sandy's failure to execute the agreement does not render
the agreement per se unenforceable and cannot sustain the trial
court's grant of defendant's motion to dismiss. Sandy is not a
party to this action. Sandy's status and the nature of his or
her interest, if any, is not disclosed in the complaint, in the
agreement, or in the record on appeal.
Defendant is the Seller in this transaction and his
signature, as Seller, appears at the end of the agreement. Only
the party to be charged is required to sign the agreement for it
to be enforceable. N.C. Gen. Stat. § 22-2. [T]he party to be
charged is the one against whom relief is sought. Lewis, 177 N.C.
at 20, 97 S.E. at 751. Defendant does not dispute he signed the
agreement as Seller in this transaction. Defendant is the party
to be charged. Id. Plaintiff is seeking relief only from the
named defendant. N.C. Gen. Stat. § 22-2; Lewis, 177 N.C. at 20, 97
S.E. at 751. The fact that Sandy did not execute or sign the
agreement does not render the agreement per se unenforceable
Also, no evidence in the record reveals Sandy's identity,
status, or interest in the property. Defendant may have signed the
agreement as an agent for Sandy. If so, this fact may be proven by
parol evidence. Wellman, 157 N.C. at 172-73, 72 S.E. at 1011.
There was no requirement that plaintiff must also allege the
contract was executed by Sandy through an agent. See Reichler v.
Tillman, 21 N.C. App. 38, 41, 203 S.E.2d 68, 71 (1974) (There wasno necessity that plaintiffs allege that the contract was executed
by the feme defendant through an agent.).
A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that plaintiff could prove no
set of facts in support of his claim which would entitle him to
relief. Dixon, 85 N.C. App. at 340, 354 S.E.2d at 758. Plaintiff
should be provided the opportunity to prove defendant also signed
as agent for Sandy.
Even if defendant was not Sandy's agent, plaintiff may enforce
the contract against defendant to the extent of defendant's
interest in the property. See James A. Webster, Jr., Webster's
Real Estate Law in North Carolina § 7-6, at 195 (Patrick K. Hetrick
& James B. McLaughlin, Jr. eds., 5th ed. 1999) (Each tenant in
common may convey, lease, or mortgage his interest in the common
Defendant seeks to excuse his own non-performance and breach
by purporting to assert the third party rights, if any, of Sandy,
who is not identified nor joined as a party in plaintiff's
complaint. See Holmes v. Godwin, 69 N.C. 467, 470 (1873) (In
general, jus tertii [the rights of a third party] cannot be set up
as a defense by the defendant, unless he can in some way connect
himself with the third party.).
The majority's opinion erroneously holds Sandy's failure to
execute the agreement, when Sandy is not a party to this action, is
dispositive in dismissing plaintiff's complaint against defendant. The trial court's order granting defendant's 12(b)(6) motion to
dismiss should be reversed.
Plaintiff properly alleged a claim for breach of contract by
defendant in the complaint. Defendant's statute of frauds defense
and no other affirmative or statutory defenses were properly before
the trial court upon his Rule 12(b)(6) motion to dismiss. Brooks
, 91 N.C. App. at 723-24, 373 S.E.2d at 305.
Alternatively, I disagree with the majority's conclusion that
Sandy's purported failure to execute the agreement is dispositive
in dismissing plaintiff's allegations that a contract exists and
that defendant breached by failing to perform. Only defendant as
the party to be charged was required to execute or sign the
agreement under the statute of frauds. N.C. Gen. Stat. § 22-2;
, 177 N.C. at 20, 97 S.E. at 751. No evidence in the record
reveals Sandy's identity or interest in the property. Plaintiff
alleged defendant signed the agreement as seller. Plaintiff is
entitled to performance or damages to the extent of defendant's
interest in the property.
The trial court erred by granting defendant's Rule 12(b)(6)
motion to dismiss. I vote to reverse and respectfully dissent.
Although Judge Whichard's opinion in Hilliard
is titled as
a concurring opinion, Judge Johnson joined in Judge Whichard's
concurrence. 81 N.C. App. at 404, 344 S.E.2d at 589. Therefore,
the majority holding is actually contained in Judge Whichard's
concurrence. See, e.g., Maraman v. Cooper Steel Fabricators
N.C. 482, 483, 562 S.E.2d 420, 421 (2002) (affirming the Court of
Appeals' opinion in part and reversing the Court of Appeals'
opinion in part because a portion of the majority opinion was
erroneously designated a dissent, while a portion of the dissent
was found in what purported to be the majority opinion); Jones v.
Asheville Radiological Group, P.A.
, 350 N.C. 654, 655, 517 S.E.2d
380, 380 (1999) (remanding for modification of the Court of
Appeals' opinion because the majority holding is found within an
opinion authored by Judge Green titled 'concurrence and dissent);
Knight Pub. Co., Inc. v. Chase Manhattan Bank, N.A.
, 351 N.C. 98,
98, 530 S.E.2d 54, 54 (1999) (remanding for modification of the
Court of Appeals' opinion because the majority holding . . . is
found in Judge Walker's concurring in part and dissenting in part
No party is identified as the Buyer. An illegible
signature, alleged to be the signature of Harold Parker, is written
on the Buyer signature line at the end of the document.
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