Opinion
No. COA13–64.
2013-07-16
Eric BENNETT, Plaintiff–Appellant, v. Dolly HOUSE, Defendant–Appellee.
Meier Law Group PLLC, by Daniel Meier and Peter Johnston, for Plaintiff–Appellant. Vann & Sheridan, L.L.P., by James A. Beck II and Paul Sheridan, for Defendant–Appellee.
Appeal by Plaintiff from order entered 31 August 2012 by Judge Shannon Joseph in Superior Court, Wake County. Heard in the Court of Appeals 21 May 2013. Meier Law Group PLLC, by Daniel Meier and Peter Johnston, for Plaintiff–Appellant. Vann & Sheridan, L.L.P., by James A. Beck II and Paul Sheridan, for Defendant–Appellee.
McGEE, Judge.
Eric Bennett (Plaintiff) and Dolly House (Defendant) entered into an agreement (the agreement) on 22 October 2010. The agreement was for the purchase of Defendant's interest in House Boney LLC (House Boney). According to Plaintiff, “[t]he only asset of House Boney ... is a parcel of real property located on Poole Road [.]” Plaintiff contends that he was “ready, willing, and able to close on the deal, but Defendant ha [d] refused[.]” Plaintiff filed a complaint on 13 June 2011, alleging, inter alia, that Defendant had breached the agreement, and requested specific performance. Defendant answered on 13 July 2011, denying Plaintiff's claims. Defendant moved for summary judgment on 17 August 2012. On 28 August 2012, Plaintiff filed his own motion for summary judgment, along with a “Motion In Opposition To Defendant's Motion For Summary Judgment.” This matter was heard on 29 August 2012 and, in an order entered 31 August 2012, the trial court granted Defendant's motion for summary judgment, and denied Plaintiff's motion for summary judgment. Plaintiff appeals.
Plaintiff argues the trial court erred in granting summary judgment in favor of Defendant and in failing to grant summary judgment in favor of Plaintiff. We disagree.
“Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.’ “ In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (citation omitted).
The 22 October 2010 agreement, in its entirety, follows:
Proposal to Purchase House Ownership Interest In Poole Road
Pursuant to this proposal, as of October 22, 2010, Eric A. Bennett (the “Buyer”) hereby offers to purchase, and Dolly House (the “Seller”) hereby accepts such purchase by Eric A. Bennett, in its entirety, of her Interest in House Boney LLC, as set out below.
• Purchase Price of $135,000 for House Interest In Poole Road (37.5% share), as follows:
• $60,000 cash, plus
• $75,000 promissory note financed by Mrs. House
• Note details:
• 4.5% annual interest rate
• Payable monthly over a 10–year term
• Monthly payments of $770.29
• Total payments against note: $92,434.80
• Other conditions:
• Mrs. House removed from liability for BB & T loan
• Consent of BB & T to the above
• Mrs. House removed from liability for Moody Loan
• The parties to jointly prepare and execute all necessary documentation as required to effectuate the purchase
• Sale of Playground Property to House Boney LLC, as set out below.
Purchase of House Ownership Interest In Playground Property by House Boney LLC
• Mrs. Dolly House to sell, and House Boney LLC to purchase, Playground Property
• Purchase Price: Mrs. House's equity in the property plus assumption of the BB & T loan
• Method of Payment: Payment for Mrs. House's equity to be financed by Mrs. House through promissory note
• Note details for House Equity In Playground Property:
• 10–year Term
• 4.5% annual interest rate
• Example monthly payment: If equity is $35,000, then the monthly payment would be $362.73, for a total over the Term of $43,527.60
• Other Conditions:
• Mrs. House to provide documentation of the current BB & T loan and verification of her equity in the Playground Property
• Sale of Playground Property to occur synchronously with sale of House ownership Interest in Poole Road
• The parties to jointly prepare and execute all necessary documentation as required to effectuate the purchase
WITNESS the hands of the parties the day and year first above written.
This agreement was signed by Plaintiff and Defendant. Because this agreement involved the sale of real property, the statute of frauds applied to this transaction. Patterson v. Strickland, 133 N.C.App. 510, 518, 515 S.E.2d 915, 920 (1999). In Brooks v. Hackney, 329 N.C. 166, 404 S.E.2d 854 (1991) (citations omitted), our Supreme Court stated:
The statute of frauds, G.S. 22–2, provides that “All contracts to sell or convey any lands ... 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 [.]” ... [The contract] must contain expressly or by necessary implication the essential features of an agreement to sell. It must contain a description of the land, the subject-matter of the contract, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers. If the description is sufficiently definite for the court, with the aid of extrinsic evidence, to apply the description to the exact property intended to be sold, it is enough.
The most specific and precise descriptions require some proof to complete the indentification [sic] of the property. More general descriptions require more. The only requisite in evaluating the written contract, as to the certainty of the thing described, is that there be no patent ambiguity in the description. There is a patent ambiguity when the terms of the writing leave[ ] the subject of the contract, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified with certainty.
If the description set forth in the writing is uncertain in itself to locate the property, and refers to nothing extrinsic by which such uncertainty may be resolved, such ambiguity is said to be “patently” ambiguous. Parol evidence is not admitted to explain the patently ambiguous description. In such case, the contract is held to be void.
Whether the ambiguity is a patent ambiguity is a question of law to be decided by the court.
Id. at 170–71, 404 S.E.2d at 857–58. Parol evidence is not allowed “to remove a patent ambiguity since to do so would not be a use of such evidence to fit the description to the land but a use of such evidence to create a description by adding to the words of the instrument.” Id. at 172, 404 S.E.2d at 858 (citation omitted).
In Brooks, our Supreme Court held the following language to be patently ambiguous, rendering the purported contract for the sale of real property void:
Beginning at a stone at Johnson Buckner's corner at Plainfield Church to a stone Burlow Johnson's corner due east. Thence north to Amick Andrews corner. Thence with the Whitehead line. Thence straight to road that goes by Plainfield Church and with the road to the church to include 25 acres in all.
Id. at 168, 404 S.E.2d at 856. The above language was patently ambiguous because the “last boundary line [was] therefore subject to a number of constructions, each with significant variations. The writings at issue here do not refer to anything extrinsic from which the description can be made more certain[.]” Id. at 172, 404 S.E.2d at 858.
In an unpublished opinion, this Court discussed why it held that language used in a purported contract for the sale of land was patently ambiguous:
Here, the writing merely states that “Vaughn Auto Supply has been sold to Mr & Mrs Ronald Hankins and I have no claim to any assets.... “ There is no specific reference to any real estate at all. “Vaughn Auto Supply” refers to a business, and even with the reference to “assets,” there is no indication in the writing whether the business owned any real estate. Although the reference to “assets” could suggest that any unidentified real estate owned by Vaughn Auto Supply now belonged to Mr. and Mrs. Hankins, the writing does not specifically refer to any extrinsic evidence that would clarify the ambiguity. Any extrinsic evidence would not be fitting the description in the writing to the land, but rather would be creating a description of property not otherwise mentioned in the writing. Therefore, the writing is insufficient to comply with statute of frauds.
Hankins v. Bartlett, ––– N.C.App. ––––, 731 S.E.2d 275, 2012 WL 3570799 *4 (2012) (unpublished). This language is similar in relevant respects to the agreement language in the present case, and we adopt the reasoning in Hankins. Pursuant to the agreement, Plaintiff was to purchase Defendant's “interest in House Boney LLC[,]” which was a business, not a parcel of real property. The agreement includes a list of Defendant's “interest[s]” in House Boney, including the “House Interest in Poole Road[.]” Nowhere in the agreement is “Poole Road” defined, nor is there any clarification of what is meant by “Poole Road.” Nowhere in the agreement is it made clear that the offer to purchase is for real property.
The trial court would have to refer to extrinsic evidence to even determine if the sale of real property was contemplated under the agreement. As in Hankins: “Any extrinsic evidence would not be fitting the description in the writing to the land, but rather would be creating a description of property not otherwise mentioned in the writing.” Hankins, ––– N.C.App. ––––, 731 S.E.2d 275, 2012 WL 3570799 at *4;see also Brooks, 329 N.C. at 172, 404 S.E.2d at 858. There is no description of real property in the agreement, and this lack of description creates a patent ambiguity. Therefore, as to any purported contract for the sale of real property, the agreement is void. Brooks, 329 N.C. at 171, 404 S.E.2d at 858.
The trial court properly granted summary judgment in favor of Defendant and properly denied Plaintiff's motion for summary judgment.
Affirmed. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).