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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.
NORTH CAROLINA COURT OF APPEALS
Filed: 6 November 2007
FAIRVIEW DEVELOPERS, INC., and
J.C.H. HOLDINGS, LLC,
No. 04 CVS 1916
Appeal by plaintiffs from order entered 4 May 2006 by Judge
Susan C. Taylor in Union County Superior Court. Heard in the Court
of Appeals 10 October 2007.
Goodwin & Hinson, P.A., by Matthew B. Smith, for plaintiffs-
James, McElroy & Diehl, P.A., by Richard B. Fennell and
Preston O. Odom, III, for defendant-appellee.
Fairview Developers, Inc. (Fairview) and J.C.H. Holdings,
LLC (J.C.H.) (collectively, plaintiffs) appeal from order
entered denying their motion for partial summary judgment and
granting Mickey Miller's (defendant) motion for summary judgment.
J.C.H. entered into an offer to purchase and contract with
defendant on 20 February 2004. J.C.H. agreed to purchase
approximately twenty-four acres of real property situated in Union
County, North Carolina. An addendum to the contract granted J.C.H.the right to inspect or conduct surveys on the property within
ninety days from the acceptance date of the contract (the
examination period). The addendum to the contract also granted
J.C.H. the option to extend the examination period for up to sixty
additional days by paying a $2,500.00 non-refundable deposit for
the first thirty day extension and a $5,000.00 non-refundable
deposit for the second thirty day extension. The addendum to the
contract stated, [c]losing will occur on or before 30 days after
the removal of the last contingency. . . . Time is of the essence
as to the terms of this contract. (Emphasis supplied).
On 20 May 2004, the last day of the initial ninety day
examination period, J.C.H. assigned its contract rights to
Fairview. Fairview exercised the option to extend the examination
period for sixty additional days. The examination period was
extended until 19 July 2004. Neither J.C.H. nor Fairview voiced or
communicated to defendant any concerns or raised any issues
regarding the property during the initial or extended examination
periods. After executing the assignment of the contract,
plaintiffs discovered they would be required to install
approximately 3,000 additional feet of sewer line above what they
had originally estimated to service their development.
On 19 August 2004, defendant contacted James Roese (Roese),
member-manager of J.C.H., to discuss the closing she expected to
occur the following day. Roese told defendant about the additional
sewer extension and costs and informed her Fairview would need an
additional thirty days to close on the property. Defendant continuously stated that she was ready, willing, and
able to close on the property immediately. Defendant did not
consent to Roese's requested additional delay and repeatedly told
him she had to consult with her attorney to ascertain her options
if closing did not occur.
On 31 August 2004, J.C.H. released $10,000.00 earnest money to
defendant by placing a check in her mailbox. Plaintiffs asserted
the release of the earnest money served as notification of a
release of their contingencies and proposed a closing for 30
September 2004. On 1 September 2004, defendant sent a letter to
J.C.H. declaring the contract null and void. J.C.H., through
counsel, informed defendant that: (1) she had accepted the
$10,000.00 earnest money after the time to close had expired; (2)
there was no firm closing date set in the contract; and (3) J.C.H.
intended to close on the property on 30 September 2004. Defendant
did not appear at the 30 September 2004 closing.
Plaintiffs instituted an action on 4 October 2004, seeking
specific performance of the contract, or in the alternative,
damages for breach of contract. Plaintiffs moved for partial
summary judgment based upon the assertion that defendant had waived
the time is of the essence provision in the contract.
Plaintiffs' motion was denied. Defendant moved for summary
judgment on all claims. The trial court granted defendant's motion
for summary judgment. Plaintiffs appeal.
Plaintiffs argue the trial court erred by: (1) granting
defendant's motion for summary judgment on all claims and (2)
denying their motion for partial summary judgment on the issue of
whether defendant had waived the time is of the essence provision
in the contract.
III. Motion for Summary Judgment
Plaintiffs argue the trial court erred in granting defendant's
motion for summary judgment on all claims. We disagree.
A. 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). We review
an order allowing summary judgment de novo. Summey v. Barker, 357
N.C. 492, 496, 586 S.E.2d 247, 249 (2003). If the granting of
summary judgment can be sustained on any grounds, it should be
affirmed on appeal. Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d
778, 779 (1989).
B. Contract Interpretation
Plaintiffs argue the language of the contract is ambiguous and
its interpretation is a question of fact for a jury. We disagree.
North Carolina law requires a court to interpret a contract by
examining its language for indications of the parties' intent at
the moment of execution. State v. Phillip Morris USA Inc., 359
N.C. 763, 773, 618 S.E.2d 219, 225 (2005). The intention of the
parties must be gathered and viewed from the four corners of the
instrument. Jones v. Realty Co., 226 N.C. 303, 305, 37 S.E.2d 906,
907 (1946) (This intention is to be gathered from the entire
instrument, viewing it from its four corners.). [I]f only one
reasonable interpretation exists, the courts must enforce the
contract as written; they may not, under the guise of construing an
ambiguous term, rewrite the contract or impose liabilities on the
parties not bargained for and found therein. Woods v. Nationwide
Mutual Ins. Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978).
Plaintiffs argue the language in the contract is susceptible
to multiple interpretations and that the last contingencies werenot removed until plaintiffs waived them and requested a closing
date. Defendant argues, and we agree, that any contingency had to
be asserted, waived, or removed during the initial or extended
The contract permits plaintiffs, as buyers, to terminate the
agreement if, prior to the expiration of the examination period,
buyer determines that the property is unsuitable for any reason
and gives written notice to the seller. (Emphasis supplied). Upon
giving such notice, the parties agreed the contract, shall
terminate and Buyer will receive a full return of the Earnest
Money. The contract and its addendum also unambiguously state,
[c]losing will occur on or before 30 days after the removal of the
last contingency. The contingencies of the contract were listed
as, liens, encumbrances, or other conditions such as sewer, water,
or other governmental moratoriums having an effect on said
property. (Emphasis supplied).
Plaintiffs exercised the option to extend the examination
period to its maximum length of sixty additional days by paying
defendant a non-refundable deposit of $7,500.00. Plaintiffs had
until 19 July 2004 to identify any contingency that may affect
closing and to decide whether to close on the property or to
terminate the contract. By plaintiffs failure to raise or
communicate any issue during the initial or extended examination
periods, the contract established a firm closing date of 18 August
2004, thirty days after 19 July 2004. To assert any vendee rightsunder the contract, plaintiffs were required to complete the
closing or terminate the contract on or before this date.
Since plaintiffs failed to close within the contract's
designated time period, their contractual rights in the property
terminated. The contract language is plain and unambiguous on its
face and will be enforced as written as a matter of law. Cleland
v. Children's Home, 64 N.C. App. 153, 156, 306 S.E.2d 587, 589
(1983). The trial court properly granted defendant's motion for
summary judgment. This assignment of error is overruled.
Plaintiffs also argue defendant waived the contract's time is
of the essence clause through her subsequent actions on and after
18 August 2004. We disagree.
This Court has stated:
Waiver is always based upon an express or
implied agreement. There must always be an
intention to relinquish a right, advantage or
benefit. The intention to waive may be
expressed or implied from acts or conduct that
naturally leads the other party to believe
that the right has been intentionally given
Patterson v. Patterson, 137 N.C. App. 653, 667, 529 S.E.2d 484,
492, disc. rev. denied, 352 N.C. 591, 544 S.E.2d 783 (2000).
There can be no waiver unless it is intended by one party and so
understood by the other, or unless one party has acted so as to
mislead the other. Klein v. Avemco Ins. Co., 289 N.C. 63, 68, 220
S.E.2d 595, 599 (1975) (internal citation omitted).
Defendant communicated with plaintiffs on 19 August 2004 and
agreed to close on 20 August 2004, two days after the closingshould have occurred. Defendant's waiver, if any, is limited to
the two additional days she allowed for the closing to occur.
Defendant did not waive the time is of the essence clause.
Plaintiffs argue defendant's acceptance of the earnest money
and her subsequent refusal to close waived her right to terminate
the contract. We disagree.
Defendant never agreed to plaintiffs' demand that closing be
further extended to occur on 30 September 2004. Defendant was
entitled to release and delivery of the earnest money under the
terms of the contract. The contract specifically stated, [i]n the
event this offer is accepted and Buyer breaches this contract, then
the earnest money shall be forfeited, but such forfeiture shall not
affect any other remedies available to seller for such breach.
Plaintiffs' examination period expired without any notice of
objection to defendant and plaintiffs failed to timely close on the
property. Defendant was entitled to the release of the earnest
money deposit under the terms of the contract.
The contract contained a specific provision stating, [t]ime
is of the essence as to the terms of this contract. This clause
clearly and unambiguously indicates that a definitive time to close
was a vital and essential term to the contract.
It is well established that [a] party may waive a contract
right by an intentional and voluntary relinquishment. McNally v.
Allstate Ins. Co., 142 N.C. App. 680, 683, 544 S.E.2d 807, 809,
disc. rev. denied, 353 N.C. 728, 552 S.E.2d 163 (2001). Waiver by
implication is not looked upon with favor by the court. ChemicalBank v. Belk, 41 N.C. App. 356, 366, 255 S.E.2d 421, 428, cert.
denied, 298 N.C. 293, 259 S.E.2d 299 (1979). Here, defendant
neither intentionally nor implicitly waived the time is of the
essence clause in the contract nor agreed to extend the closing
date until 30 September 2004. The trial court properly denied
plaintiffs' motion for partial summary judgment. This assignment
of error is overruled.
The trial court properly granted defendant's motion for
summary judgment on all claims and denied plaintiffs' motion for
partial summary judgment. The language of the contract was clear
and unambiguous and was properly interpreted as a matter of law.
Defendant did not intentionally or implicitly waive the time is of
the essence clause in the contract. The trial court properly
found no genuine issues of material fact existed and that defendant
was entitled to judgment as a matter of law on all issues. The
trial court's order is affirmed.
Judges MCGEE and ELMORE concur.
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