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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
NORTH CAROLINA COURT OF APPEALS
Filed: 07 August 2007
LARRY L. LEONARD,
d/b/a L & M ENTERPRISE,
04 CVS 3559
BETTY C. TANT,
Appeal by defendant from judgment entered 29 March 2006 by
Judge Russell J. Lanier, Jr. in Onslow County Superior Court.
Heard in the Court of Appeals 12 April 2007.
Smith Debnam Narron Wyche Saintsing & Myers, L.L.P., by W.
Thurston Debnam, Jr. And Thomas R. Lenfestey, III, for
Nick Galifianakis & Associates, by Nick Galifianakis and David
Krall, for defendant-appellant.
On 28 August 2003, William T. Tant and wife, Betty C. Tant
(defendant) entered into a written agreement to sell a lot
located in Topsail Beach, North Carolina, to Larry L. Leonard
(plaintiff), doing business as L & M Enterprise for a purchase
price of $151,000.00. The Tants refused to convey the property,
and plaintiff filed this action on 16 November 2004 seeking
specific performance of the agreement. An answer was filed denying
that plaintiff was entitled to specific performance, and asserting
counterclaims for fraudulent misrepresentation, trespass, unfairand deceptive trade practices, intentional or negligent infliction
of emotional distress and abuse of process.
On 8 April 2005, William T. Tant died. Since the property was
titled to the Tants as tenants by the entireties, the action
proceeded against Mrs. Tant as the sole defendant. The case came
on for trial before a jury at the 27 March 2006 session of Civil
Superior Court for Onslow County. At the close of all the evidence
each party moved for a directed verdict. Defendant's motion for a
directed verdict was denied. Plaintiff's motion for a directed
verdict was granted and defendant was ordered to convey the lot to
the plaintiff. Defendant dismissed her counterclaims, without
prejudice, and gave notice of appeal.
I. Standard of Review
In this matter, defendant moved for a directed verdict
pursuant to N.C. R. Civ. Pro. 50(a) at the close of plaintiff's
evidence. This motion was denied (T. Pp. 134-136).
Upon a motion for a directed verdict, pursuant
to N.C.G.S. § 1A-1, Rule 50 (1983), the
evidence must be considered in the light most
favorable to the non-moving party, resolving
all conflicts in his favor, and giving him the
benefit of all reasonable inferences flowing
from the evidence in his favor. The question
presented by a motion for a directed verdict
is whether the evidence is sufficient to
entitle the non-movant to have a jury decide
the issue in question. Moreover, if there is
conflicting testimony that permits different
inferences, one of which is favorable to the
non-moving party, a directed verdict in favor
of the party with the burden of proof is
United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661-62, 370
S.E.2d 375, 387 (1988) (citations omitted).
II. Tender of Purchase Price
In her first argument, defendant contends that the trial court
erred in granting a directed verdict in favor of plaintiff and
should have submitted the issue of whether plaintiff had tendered
the purchase price to defendant to the jury. We disagree.
Defendant argues that the case of Development Corp. v.
Woodall, 21 N.C. App. 567, 205 S.E.2d 592 (1974), requires that in
order for a buyer to obtain the remedy of specific performance,
there must first be an actual tender and demand made by plaintiff
to defendant. It is uncontroverted that plaintiff never made an
actual tender of the purchase price to defendant. Rather, the
evidence was that plaintiff and his attorney contacted the
defendant and her now deceased husband on numerous occasions,
attempting to schedule a closing. On 14 January 2004, defendant
expressed her frustration, advising that her husband was dragging
his feet and was not feeling well. As a result of this
conversation, plaintiff's attorney wrote to defendant and her
husband on 19 January 2004 stating that plaintiff would like to
close as soon as possible. Would you please advise us . . . at
your earliest convenience?
The Agreement for Purchase and Sale of Real Property executed
by all parties in this matter specified that the purchase price of
the property was $151,000.00, paid by $1,000.00 earnest money at
the time of the execution of the contract, and the balance due at
closing pursuant to Section 10 of the agreement. Woodall
acknowledges that [e]quity can only compel the performance of acontract in the precise terms agreed on. Woodall, 21 N.C. App. at
570, 205 S.E.2d at 595 (citations omitted). Under the terms of the
agreement, the balance of the purchase price was to be paid at
The most recent case dealing with the sufficiency of a tender
required to compel specific performance of a real estate contract
is Curran v. Barefoot, __ N.C. App. __, 645 S.E.2d 187 (2007). In
upholding a decree of specific performance, this Court relied upon
language from the Supreme Court case of Munchak Corp. v. Caldwell,
301 N.C. 689, 273 S.E.2d 281 (1981), which held:
The remedy of specific performance is
available to compel a party to do precisely
what he ought to have done without being
coerced by the court. The party claiming the
right to specific performance must show the
existence of a valid contract, its terms, and
either full performance on his part or that he
is ready, willing and able to perform.
Id. at 694, 273 S.E.2d at 285 (citations omitted).
In this case it was undisputed that there was a valid contract
between the parties and that plaintiff was at all times ready,
willing and able to perform. Since the contract required full
payment at closing, plaintiff was not required to actually tender
the purchase price until that time. All of the evidence presented
was that despite repeated requests, defendant refused to schedule
We hold that under the facts of this case, plaintiff was
entitled to specific performance under Curran v. Barefoot, __ N.C.
App. __, 645 S.E.2d 187 (2007), and that an actual tender was not
required. This argument is without merit.
III. Consideration for Amendment to Agreement
In her second argument, defendant contends that the trial
court erred in granting a directed verdict in favor of plaintiff
because the 28 September 2003 amendment to the contract was not
supported by additional consideration.
The original agreement was entered into on 29 August 2003, and
called for a closing to take place within 30 days. The agreement
did not contain a time is of the essence provision. On 28
September 2003, the parties modified the closing provision of the
contract to state that the closing would take place on 1 November
2003. This was the only modification to the agreement, and was
initialed on the original agreement by all parties.
Defendant argues that any modification of an agreement must
possess all of the elements necessary to form a contract, including
consideration, citing Tile and Marble Co. v. Construction Co., 16
N.C.App. 740, 193 S.E.2d 338 (1972). While this is a correct
statement of the law, it in no manner controls the outcome of this
case. Since the agreement did not contain a time is of the
essence provision, the date selected for the closing is viewed
only as an approximation of what the parties regarded as a
reasonable time under the circumstances of the sale. Fletcher v.
Jones, 314 N.C. 389, 393-4, 333 S.E.2d 731, 735 (1985). Therefore,
the validity or invalidity of the amendment extending the closing
date from 28 September 2003 until 1 November 2003 is not
determinative of any controlling issue in this case. Rather, the
amendment can only be considered in determining what the partiesregarded as a reasonable time for closing. This argument is
III: Directed Verdict, Breach of Contract
In her third argument, defendant contends that the trial court
erred in granting a directed verdict in favor of plaintiff because
the question of whether the defendant breached the contract should
have been submitted to the jury. We disagree.
Defendant makes a series of arguments in support of this
contention: (1) plaintiff knew defendant was not represented by
counsel in the matter, and it was therefore incumbent upon
defendant's counsel to prepare a deed and tender it to defendant
for execution; (2) plaintiff was aware of Mr. Tant's health
problems, that defendant and Mr. Tant may not have been able to
travel, and that plaintiff's attorney should have prepared a deed
and mailed it to the Tants; (3) plaintiff failed to establish a
closing date, and did not attempt to perform under the contract
within a reasonable time.
Paragraph 10 of the Agreement reads:
Section 10. Closing: The Closing shall consist
of the execution and delivery by Seller to
Buyer of a General Warranty Deed and other
documents customarily executed by a seller in
similar transactions, including without
limitation, an owner's affidavit, lien waiver
forms and a non-foreign affidavit and the
payment by Buyer to Seller of the Purchase
Price in accordance with the terms of the
Purchase Price. At Closing, the Earnest Money
shall be applied as part of the Purchase Price
or as otherwise provided in Section 1(b)(i)
The Closing shall be held at the office of
Buyer's attorney or such other place as the
parties hereto may mutually agree. . . .
At trial, plaintiff's attorney testified that a seller could use
their own attorney or buyer's attorney to prepare the seller's
documents as set forth in paragraph 10 of the agreement.
In her brief, defendant cites to a treatise on North Carolina
real estate law to establish that plaintiff's attorney had a duty
to prepare a deed for defendant and tender it to her for execution.
We note that this treatise was not submitted at trial. An
appellant court will not consider evidence on appeal that was not
submitted at trial.
Horton v. New South Ins. Co., 122 N.C. App.
265, 268, 468 S.E.2d 856, 858 (1996) (citing N.C.R. App. P. 9(a)
(stating that review is limited to the record and transcript));
Duke University v. Bishop, 131 N.C. App. 545, 547, 507 S.E.2d 904,
If this were to be allowed, then appeals would never
end, with the parties constantly dredging up new evidence for the
appellate court to review. Our review is limited to evidence
presented at trial.
All of the evidence presented at trial was that under the
terms of the agreement, it was incumbent upon defendant as the
seller to execute and deliver a deed for the property to plaintiff.
While defendant certainly could have used plaintiff's attorney to
prepare the seller's documents, it was the duty of defendant, and
not plaintiff, to make these arrangements.
In support of her contention that plaintiff's counsel had a
duty to prepare a deed and mail it to her, since she and her
husband were unable to travel, she again cites to a treatise on
real estate law. As discussed above, we decline to allow defendantto present evidence for the first time on appeal. In addition, the
explicit terms of the agreement control this issue. Closing was to
take place at the office of plaintiff's attorney or at a place
agreed upon by the parties. There was no evidence that defendant
or her husband ever agreed to a closing, and none that there was an
agreement for a closing location other than the office of
Finally, defendant argues that plaintiff failed to establish
a closing date within a reasonable time. The evidence at trial was
that plaintiff made numerous calls to defendant and her husband
attempting to set up a closing. Plaintiff's attorney was told on
14 January 2004 that she was frustrated that her husband was
dragging his feet and was not feeling well. The attorney sent a
letter on 19 January 2004, reaffirming plaintiff's desire to close
as soon as possible and requesting defendant to contact them at
their earliest convenience. Subsequently, on 15 April 2004, Mr.
Tant advised plaintiff that he no longer wanted to sell the
property, since he had a better offer.
We find defendant's argument unpersuasive. When the delay in
closing was due to the actions of defendant, she cannot now
complain that the plaintiff failed to close within a reasonable
time. This assignment of error is without merit.
IV: Directed Verdict, Proper Execution
In her fourth assignment of error, defendant contends that the
trial court erred in granting a directed verdict in favor ofplaintiff because there was a jury question as to whether the
plaintiff properly executed the agreement. We disagree.
Defendant argues that on the agreement there appears at the
place for buyer's signature: L & M ENTERPRISES/L.LEONARD, GENERAL
PARTNER in printing rather than cursive writing; that this does
not constitute a proper signature; and that the agreement is void
under the statute of frauds. N.C. Gen. Stat. . 22-2 (2007)
requires that a contract to convey real estate must be in writing
and signed by the party to be charged therewith[.] Id. There is
no question that the parties sought to be charged are Mr. and Mrs.
Tant, and that they both executed the agreement. Thus, the
agreement complied with the statute of frauds. This argument is
Defendant has failed to argue her remaining assignment of
error and it is deemed abandoned. N.C. R. App. P. 28(b)(6) (2007).
For the foregoing reasons, we hold that the trial court
properly granted plaintiff's motion for a directed verdict at the
close of all of the evidence.
Judge BRYANT concurs.
Judge LEVINSON concurs in result prior to 7 July 2007.
Report per Rule 30(e).
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