Opinion
No. COA04-988
Filed 19 April 2005 This case not for publication
Appeal by defendant from judgment filed 22 March 2004 by Judge A. Robinson Hassell in Guilford County District Court. Heard in the Court of Appeals 9 March 2005.
Smith, James, Rowlett Cohen, L.L.P., by Norman B. Smith, for plaintiff. The Law Office of James B. Weeks, by James B. Weeks, for defendant.
Guilford County No. 03 CVD 10117.
Nabil Hanhan (defendant) appeals a judgment filed 22 March 2004, granting an order of possession in favor of Kermatollah Lashani (plaintiff).
On 14 November 2002, plaintiff purchased real estate from Henry M. Taylor, Jr., and Roger G. Taylor. The property, located at the corner of High Point Road and Florida Street in Greensboro, North Carolina, was a small shopping center and consisted of buildings labeled as 2615, 2436, and 2438. Defendant had lease hold rights with respect to buildings 2436 and 2438, arising out of a lease entered into on 16 June 1998 between defendant as lessee and Henry M. Taylor, Jr., and Roger G. Taylor as lessors. Pertinent provisions of the lease included: (a) all notices to lessee be addressed to him at 2436 Florida Street, Greensboro, North Carolina, 27403; (b) the lease ends on 28 February 2003, subject to options for two five-year lease renewals with rent and terms to be negotiated, the options being exercisable in writing at least 90 days prior to the expiration of the lease agreement; and, (c) the lessee shall not assign or sublet the premises without written consent of the lessors.
On 9 October 2002, Henry M. Taylor, Jr., and Roger G. Taylor authorized defendant to sublease the property subject to payment of back rents and legal fees, which defendant paid. Subsequently, defendant sold the convenience store business located at building 2436 to Jayshree Shah, and in the same instrument assigned his leasehold interest in the 16 June 1998 lease agreement to Jayshree Shah "for lease of the premises currently occupied by the business." The convenience store in building 2436 and the storage building 2438 had been used together and occupied by the same business.
On 14 November 2002, Henry M. Taylor, Jr., sent a letter to defendant, addressed to him in care of the Atlantis Cafe, 3035 High Point Road, Greensboro, North Carolina, 27403, stating as of that date, the real property had been purchased by plaintiff and that all future communications concerning the property should be with plaintiff, setting out plaintiff's name, address and telephone numbers.
Defendant had requested Henry M. Taylor, Jr., mail notices to defendant at the Atlantis Cafe address, rather than the address set out in the lease agreement.
On 27 November 2002, defendant mailed to Henry M. Taylor, Jr., a notification that he was exercising his option to renew the lease on buildings 2436 and 2438. Defendant collected rent from Jayshree Shah and remitted the rent to plaintiff for approximately two months in the latter part of 2002. Later the parties agreed that Jayshree Shah would pay rent directly to plaintiff.
Defendant continued to occupy the storage building, which is identified in the lease agreement as building 2438. Defendant failed and refused to pay plaintiff any rent for building 2438, and claimed he had no obligation to do so.
On 8 August 2003, plaintiff filed a complaint and summons instituting this action against defendant in the small claims court of the Guilford County District Court Division. Plaintiff sought summary ejectment as relief. On 25 August 2003, a magistrate heard the case and entered an order of summary ejectment in favor of plaintiff, ordering that defendant be removed from the premises and that plaintiff be put in possession thereof. Defendant made proper notice of appeal to the district court.
The case came for hearing de novo during the 9 March 2004 non-jury civil session of Guilford County District Court with the Honorable A. Robinson Hassell presiding. On 19 March 2004, the trial court entered judgment granting plaintiff possession of the premises, and ordering defendant to vacate immediately.
Defendant filed timely notice of appeal to this Court.
The issues on appeal are whether the trial court erred by granting an order of possession: (I) on the ground that defendant's effort to exercise the lease extension option by timely mailing notice to the prior landlord was of no legal effect; and (II) without making findings of fact as to why it granted an order of possession for building 2438, when the complaint was for building 2436.
I
Defendant first argues the trial court erred when it granted an order of possession on the ground that defendant's effort to exercise the lease extension option by timely mailing notice to the prior landlord was of no legal effect.
Our Court has previously held in the context of a non-jury trial, "the weight, credibility, and convincing force of [the] evidence is for the trial court, who is in the best position to observe the witnesses and make such determinations." Freeman v. Freeman, 155 N.C. App. 603, 608, 573 S.E.2d 708, 712 (2002), disc. rev. denied, 357 N.C. 250, 582 S.E.2d 32 (2003) (citing Upchurch v. Upchurch, 128 N.C. App. 461, 495 S.E.2d 738 (1998)).
The lease agreement in question, that of 16 June 1998, was between defendant as lessee and Henry M. Taylor, Jr., and Roger G. Taylor as lessors. The lease agreement required that all notices to lessee should be sent to defendant at 2436 Florida Street, the address of the convenience store. Defendant gave verbal notice to Henry M. Taylor, Jr., and Roger G. Taylor prior to 14 November 2002, that he wanted notices regarding the lease agreement addressed to him at the Atlantis Cafe, 3035 High Point Road, Greensboro, North Carolina, rather than to the address specified in the lease agreement.
The court found that on 14 November 2002, Henry M. Taylor, Jr. sent a letter to defendant, addressed to him in care of the Atlantis Cafe, 3035 High Point Road, Greensboro, N.C., 27403, in a sealed envelope with first class mail affixed, which Henry M. Taylor, Jr. deposited in a receptacle for outgoing mail maintained by the United States Postal Service in High Point, North Carolina, stating that as of that date the real property had been purchased by plaintiff. The letter directed that, "All rents and correspondence relating to this property will be directed to: Keramatollah Lashini [sic] PO Box #49634 Greensboro N.C. 27419 cell #706 3098 business #852 3555." The trial court further found that defendant received this letter in a timely manner.
Defendant's protestations that he did not receive the letter notifying him of purchase of the property by plaintiff, were not determined to be credible by the trial court. As stated previously, the trial court was the sole judge of the credibility of defendant's trial testimony. Freeman, 155 N.C. App. at 608, 573 S.E.2d at 712. Further, the trial court's determination that defendant's testimony was not credible, when he said he did not receive the letter, must not be disturbed on appeal unless based only on incompetent evidence. DOT v. Bollinger, 121 N.C. App. 606, 611, 468 S.E.2d 796, 798 (1996) (stating any inconsistency in the testimony is a matter to be resolved by the trial court in its findings of fact, and the findings of fact will not be reversed unless based only on incompetent evidence).
The trial court's finding in this regard is supported by:
(1) a legal presumption that when an envelope is addressed to a person at a specified address and mailed to him, sealed, with first class postage affixed, and deposited in a receptacle for outgoing mail maintained by the United States Postal Service, the mail is timely received by the recipient ( In the Matter of Terry, 317 N.C. 132, 343 S.E.2d 923, 925 (1986)); and
(2) an admission by defendant that is inconsistent with his claimed non-receipt of the letter.
The admitted fact that is wholly inconsistent with defendant's testimony, as set forth in defendant's own brief, is "Mr. Hanhan collected rent from Mrs. Shah and remitted to Mr. Lashani for approximately two months in the latter part of 2002." Defendant could not possibly have been collecting rent from Jayshree Shah and remitting it to plaintiff, without knowing that plaintiff had become the owner of the property. Once defendant became aware that the real estate had been conveyed, and once he was told to direct all correspondence relating to the property to plaintiff, it became his obligation to send his notice of lease renewal to plaintiff, rather than to Henry M. Taylor, Jr., and Roger G. Taylor. Pearce v. Gay, 263 N.C. 449, 139 S.E.2d 567, 569 (1965).
Moreover, defendant's verbal directive to Henry M. Taylor, Jr., and Roger G. Taylor that the address for sending notice to him was to be changed from 2436 Florida Street to 3035 High Point Road, was fully effective, since any written agreement can be modified by the parties orally. Whitehurst v. FCX Fruit Vegetable Service, Inc., 224 N.C. 628, 636, 32 S.E.2d 34, 39 (1944); H.M. Wade Mfg. Co. v. Lefkowitz, 204 N.C. 449, 453, 168 S.E. 517, 519 (1933).
Based on the foregoing, we conclude the notification by Henry M. Taylor, Jr., and Roger G. Taylor to defendant of plaintiff having succeeded to the rights of defendant's lessors, was fully effective; and, therefore, defendant's later attempt to extend his leasehold rights by giving notification to the Taylors, rather than to plaintiff, was ineffective.
The Court will refrain from addressing the remaining grounds for granting plaintiff an order of possession, as sufficient evidence has been presented to support at least one ground for possession. Shore v. Brown, 324 N.C. 427, 429, 378 S.E.2d 778, 779 (1989) (stating even if the trial court's legal conclusion on an alternative ground was erroneous, the judgment must be affirmed when sustainable on another ground). This assignment of error is overruled.
II
Defendant next argues the trial court erred when it granted an order of possession, without making findings of fact as to why it granted an order of possession for building 2438, when the complaint was for building 2436.
In Canady v. Creech, 288 N.C. 354, 356, 218 S.E.2d 383, 385 (1975), our Supreme Court stated that obvious clerical errors which could not mislead any interested party were not prejudicial. Here, the complaint sought possession of building 2436. This was a clerical error. The source of this error was the lease agreement of 16 June 1998 which identified the end building where the convenience store was located as building 2438 and the middle building which was used for storage purposes as building 2436. However, it was generally agreed by the witnesses at trial that the storage building, which is the subject of the ejectment action, was building 2438. Accordingly, the court was correct in its finding of fact no. 9, that the building in question was referred to in the lease agreement as building 2436, but was generally referred to in the testimony of the parties as building 2438; and was further correct in ordering defendant to vacate "the premises variously described by the parties as building 2436 and 2438."
Affirmed.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).