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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1191


Filed: 7 August 2007



v .                         Burke County
                            No. 05 CVS 1405


    Appeal by defendant from order entered 17 May 2006 by Judge Yvonne Mims Evans in Burke County Superior Court. Heard in the Court of Appeals 25 April 2007.

    Byrd Byrd Ervin Whisnant & McMahon, P.A., by John W. Ervin, Jr., for plaintiff.

    Joseph C. Delk, III, for defendant.

    ELMORE, Judge.

    On 2 December 1999, Alton C. Woody (the deceased) and George A. Ruppe (plaintiff) entered into a stockholders' agreement (the agreement). The agreement stated, in pertinent part:
        Article I. Purchase Obligations Upon Death.
            Upon the death of a Stockholder, his estate shall sell and the surviving Stockholder shall purchase . . . the following shares which the deceased Stockholder owned at his death:
        (a) 41,020 shares of Ruppe & Woody Associates, Inc.;
        (b) 5,600 shares of Kings Mountain Hosiery, Inc.; and,
        (c) 214 shares of Ruppe Hosiery, Inc.

        Article V. Purchase Price.
            The amount to be paid under the terms of this Agreement for each share of the stock of each of the corporations to be transferred . . . shall be $1.00 per share. The Stockholders mutually acknowledge that the price of $1.00 per share is below the market value of said stock, but each Stockholder believes that it will be in the best interests of each of the corporations and his heirs that the stock . . . be transferred to the surviving Stockholder at a nominal price.
        Article X. General Provisions.
        Section 10.2. The shares are unique chattels and each party to this Agreement shall have the remedies which are available to him for the violation of any of the terms of this Agreement, including, but not limited to, the equitable remedy of specific performance.
        Section 10.5. This Agreement is binding upon and inures to the Stockholders and their respective heirs, personal representatives, successors and assigns, and the Stockholders by the signing herof direct their personal representatives to open theirs estates promptly in the courts of proper jurisdiction and to execute, procure and deliver all documents and estate and inheritance tax waivers, as shall be required to effectuate the purposes of this Agreement.

    Upon the deceased's death, plaintiff gave notice of his intent to purchase the shares as permitted by the agreement, and tendered the purchase price to the executrix of the estate, Patricia Ranae Woody (defendant). Defendant refused to execute the transfer, claiming that the transfer would be inequitable due to changed circumstances since the agreement's execution. In response, plaintiff brought suit, seeking specific performance under the agreement. Plaintiff moved for summary judgment, and the trialcourt granted the motion in an order entered 17 May 2006. It is from this order that defendant now appeals.
    Defendant's sole argument on appeal is that the trial court erred in granting summary judgment because there was a genuine issue of material fact. We disagree, and affirm the trial court's order.
    “The standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.” Papadopoulos v. State Capital Ins. Co., ___ N.C. App. ___, ___, 644 S.E.2d 256, 259 (2007) (quotations and citation omitted).
        This case principally required judicial construction of [a] contract[]. Contract interpretation depends in the first instance on the language of the instrument itself. When a written contract is free from ambiguity, its interpretation is a question of law for the court . . . . If, on the other hand, the contract is ambiguous, its interpretation usually requires a factual determination of the intent of the parties; on conflicting evidence of intent, the jury must resolve the issue. The effect of ambiguous language is ordinarily for the jury.

Citrini v. Goodwin, 68 N.C. App. 391, 394-95, 315 S.E.2d 354, 358 (1984) (citations omitted). Defendant suggests that the contract is ambiguous. However, the only argument that she offers in support of this contention is that in the six years since the deceased and plaintiff entered into the agreement, there has been a substantial change in the value of the shares and the companies, and that the change will have a significant effect on the deceased's heirs. While this may be true, the change in value inno way renders the agreement itself ambiguous. To the contrary, the agreement is abundantly clear: each party agreed to sell a controlling interest to the survivor on death; each party agreed that a nominal amount, less than the market value, should be paid for the shares; and each party agreed that specific performance would be available as a remedy.
    At most, defendant can show that the change brings the parties' intentions into question. Yet this, too, fails to aid defendant. “When a contract is in writing and free from any ambiguity which would require resort to extrinsic evidence, or the consideration of disputed fact, the intention of the parties is a question of law.” Anderson v. Anderson, 145 N.C. App. 453, 457, 550 S.E.2d 266, 269 (2001) (quotations, citations, and alterations omitted). Accordingly, there was no question of fact before the trial court; its grant of summary judgment was therefore appropriate.
    Judges HUNTER and GEER concur.
    Report per 30(e).

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