B. ELLIOTT ENTERPRISE, INC.,
Plaintiff,
v
.
Forsyth County
No. 05 CVS 1323
JOHN MARK MITCHELL,
Defendant.
Parrish, Smith & Ramsey, LLP, by Steven D. Smith, for
plaintiff-appellant.
Hendrick & Bryant, LLP, by Matthew H. Bryant and Kenneth C.
Otis, III, for defendant-appellee.
JACKSON, Judge.
On 13 March 2002, Bryan Elliott (“Elliott”), president of B.
Elliott Enterprise, Inc. (“plaintiff”), and John Mark Mitchell
(“defendant”) entered into a contract pursuant to which plaintiff
agreed (1) to purchase real property and construct a home for
defendant on that property, and (2) that the price for these
actions would be “costs plus $10.00 per sq. ft. with the total cost
not to exceed $500,000 including lot, unless approved by
[d]efendant.” Over the course of the next year, plaintiff
constructed the home on the purchased property. In February 2003,Elliott, on behalf of plaintiff, informed defendant that the cost
to complete the home now would be close to $600,000.00. Defendant
agreed to the higher amount, and subsequently was qualified for a
loan for the higher amount. In late March, or early April 2003,
Elliott, on behalf of plaintiff, notified defendant that the cost
to complete the home now would be $712,000.00, minus the $10,000.00
that defendant already had paid. Defendant refused to pay this new
amount, and the parties then agreed that plaintiff would attempt to
sell the home to someone else.
Plaintiff eventually sold the home for $760,000.00 in July
2004. On 25 February 2005, plaintiff filed the instant action
against defendant alleging claims for breach of contract and
anticipatory repudiation of a contract, defamation, and tortious
interference with a contract. On 2 May 2005, defendant filed his
answer, which included a motion to dismiss, and numerous
affirmative defenses. Defendant filed a motion for summary
judgement on all of plaintiff's claims on 26 January 2006, which
the trial court granted on 16 February 2006. Plaintiff appeals
from the dismissal with prejudice of all of its claims. Additional
facts relevant to the instant appeal will be discussed below as
needed.
The order from which plaintiff appeals grants defendant
summary judgment on each of plaintiff's claims. However, on
appeal, plaintiff presents arguments regarding only the breach of
contract claim and does not mention the defamation or tortious
interference with contract claims. Therefore, plaintiff's appealof summary judgment on the defamation and tortious interference
with contract claims are deemed abandoned. See N.C. R. App. P.
10(a) (2006) (“[T]he scope of review on appeal is confined to a
consideration of those assignments of error set out in the record
on appeal in accordance with this Rule 10.”); N.C. R. App. P.
28(b)(6) (2006) (“Assignments of error not set out in the
appellant's brief, or in support of which no reason or argument is
stated or authority cited, will be taken as abandoned.”).
“'We review the trial court's grant of summary judgment de
novo.'” Johnson v. Wornom, 167 N.C. App. 789, 791, 606 S.E.2d 372,
374 (quoting White v. Consolidated Planning, Inc., 166 N.C. App.
283, 296, 603 S.E.2d 147, 157 (2004)), disc. review denied, 359
N.C. 411, 612 S.E.2d 321 (2005).
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.” “A party moving for summary
judgment may prevail if it meets the burden
(1) of proving an essential element of the
opposing party's claim is nonexistent, or (2)
of showing through discovery that the opposing
party cannot produce evidence to support an
essential element of his or her claim.” “If
the moving party satisfies its burden of
proof, then the burden shifts to the
non-moving party to 'set forth specific facts
showing that there is a genuine issue for
trial,'” or, alternatively, must produce an
excuse for not doing so. “The nonmoving party
'may not rest upon the mere allegations of his
pleadings.'” Thus where, “the moving party by
affidavit or otherwise presents materials in
support of his motion, it becomes incumbent
upon the opposing party to take affirmative
steps to defend his position by proof of his
own. If he rests upon the mere allegations ordenial of his pleading, he does so at the risk
of having judgment entered against him.”
Wall v. Fry, 162 N.C. App. 73, 76-77, 590 S.E.2d 283, 285 (2004)
(internal citations omitted).
Here, both parties agree that they entered into a contract on
13 March 2002, pursuant to which plaintiff would purchase real
property and construct a home for defendant on that property, and
that the price for these actions would be “costs plus $10.00 per
sq. ft. with the total cost not to exceed $500,000 including lot,
unless approved by [defendant].” Both parties also agree that the
original contract specifically provided that:
5. This is a turn-key job and all work and
expense of any sort relative to the
construction, including building permits
shall be paid by the Contractor. The
Contractor will provide Contractor's
Liability Insurance, Builder's Risk
Insurance, and Workman's Compensation
Insurance on the project.
. . . .
12. The Contractor will be entitled to
additional compensation for services
requested that are not covered by the
plans and specifications attached hereto,
and for costs and expenses incurred by
the Contractor as a result of changes
made by the Buyer. The Buyer reserves
the right to order work changes in the
nature of additions, deletions, or
modifications to the plans and
specifications or, drawings without
invalidating this contract, but the Buyer
agrees to make corresponding adjustments
and to pay for any additional costs for
the work performed and to make
corresponding adjustments at any time
before completion of the contract. All
work order changes shall be in writing,
signed by Buyer and Contractor, and shallspecify the adjustment, if any, to the
contract price.
The evidence presented by both parties indicated that
following the signing of the original contract, defendant made
changes to the layout of the planned home, and added windows and
doors to the specifications. Both parties testified in their
depositions that these changes occurred very early in the process,
and that they were made prior to the concrete footings of the house
being poured. At no time did plaintiff provide defendant with any
written work order change, much less any written work order change
specifying what effect the changes would have on the contracted for
price of $500,000.00.
Defendant testified that he was aware that the cost of the
completed home could go above the $500,000.00 contract price, but
that he and Elliott discussed that the price could not go any
higher than $550,000.00. In January 2003, Elliott realized that
the cost to finish the home was going to be more than $100,000.00
over the contract price, and at that point the home was only half
way completed. In February 2003, Elliott provided defendant with
numbers indicating that the cost of the home would be close to
$600,000.00. In response, defendant obtained a letter from his
bank that stated that he was qualified for a loan up to
$600,000.00. Both parties tend to agree that this effectively
modified their original contract, and that they now had a contract
for $600,000.00.
Some time after the modification to their original agreement,
defendant made changes to the screened-in porch that was plannedfor the home. Following this change, in late March or early April
2003, Elliott notified defendant that the cost of the home would
now total $712,000.00, minus the $10,000.00 which defendant already
had paid. Defendant rejected plaintiff's attempt to modify the
contract, and informed plaintiff that he could possibly pay
$680,000.00, but that in order to be qualified by his bank for the
new amount, he would need a new signed contract. Plaintiff and
defendant did not enter into a new signed contract, and in fact,
plaintiff specifically rejected defendant's offer of $680,000.00 by
not signing a new contract. Elliott testified that he would not
have signed a contract for a new contract price of $680,000.00.
During his deposition, Elliott testified that at all times he
had the ability to re-estimate the cost of the job and to obtain
written change orders from defendant. He stated that he does not
know what effect the particular changes made by defendant had on
the final cost of the job, but that the majority of the changes
occurred before major work on the project started, and before the
footings were poured. Elliott testified that he had the ability to
stop the project and make sure the parties agreed upon a price
above the initial $500,000.00. However, Elliott did not do this
until six months after the initial contract was signed, and until
the home was half-way finished. Moreover, plaintiff attempted to
change the price of the contract on two separate occasions without
providing defendant with any written change orders specifying the
adjustment to the contract price, as was required by the parties'
original contract. “In the making of a contract[,] it is essential that the
parties thereto assent to the same thing in the same sense, and
their minds must meet as to all the terms.” Sides v. Tidwell, 216
N.C. 480, 483, 5 S.E.2d 316, 318 (1939). Thus,
“'[i]n order to constitute a valid . . .
agreement, the parties must express themselves
in such terms that it can be ascertained to a
reasonable degree of certainty what they mean.
And if an agreement [is] so vague and
indefinite that it is not possible to collect
from it the full intent of the parties[,] it
is void[.]'”
Holder v. Mortgage Co., 214 N.C. 128, 133, 198 S.E. 589, 591-92
(1938) (citation omitted). “'Where the language of a contract is
plain and unambiguous, the construction of the agreement is a
matter of law; and the court may not ignore or delete any of its
provisions, nor insert words into it, but must construe the
contract as written, in the light of the undisputed evidence as to
the custom, usage, and meaning of its terms.'” Hemric v. Groce,
169 N.C. App. 69, 76, 609 S.E.2d 276, 282 (citation omitted), cert.
denied, 359 N.C. 631, 616 S.E.2d 234 (2005).
“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) (citing Jackson v. Carolina Hardwood Co., 120 N.C. App. 870,
871, 463 S.E.2d 571, 572 (1995)). Not all breaches of a contract
constitute an actionable claim. A breach will only be considered
actionable if it is material in nature, and is “one that
substantially defeats the purpose of the agreement or goes to the
very heart of the agreement, or can be characterized as asubstantial failure to perform.” Long v. Long, 160 N.C. App. 664,
668, 588 S.E.2d 1, 4 (2003) (citing Fletcher v. Fletcher, 123 N.C.
App. 744, 752, 474 S.E.2d 802, 807-08 (1996)).
In the instant case, the parties readily agree that they
modified their original contract with respect to the price term;
however, there was no evidence presented that either party agreed
to a waiver of the requirement calling for written change orders
specifying adjustments to the contract price as a result of changes
made to the plans. At no time during the process did plaintiff
provide any written change orders to defendant. When plaintiff
informed defendant that it could not perform the contract for the
modified contract price of $600,000.00, this constituted a breach
of the parties' contract. Plaintiff's attempt to modify the
contract again by offering a new price of $712,000.00 was rejected
by defendant, and plaintiff's refusal to abide by the modified
contract constituted a breach.
As there was no genuine issue of material fact in dispute as
to whether or not plaintiff had breached the parties' contract, the
trial court acted properly in granting summary judgment in favor of
defendant. Plaintiff's assignment of error is overruled.
Affirmed.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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