Curran v. Barefoot

• Decision Date: 05 June 2007
• Docket Number: No. COA06-1102.,COA06-1102.
• Court: North Carolina Court of Appeals
• Parties: Thomas L. CURRAN and wife, Josephine Curran, Plaintiffs, v. Robert M. BAREFOOT, as Trustee for Robert M. Barefoot Revocable Trust, Defendant.

645 S.E.2d 187

Thomas L. CURRAN and wife, Josephine Curran, Plaintiffs, v. Robert M. BAREFOOT, as Trustee for Robert M. Barefoot Revocable Trust, Defendant.

No. COA06-1102.

Court of Appeals of North Carolina.

June 5, 2007.

Appeal by defendant from judgment entered 30 December 2005 and order entered 13 February 2006 by Judge Edwin G. Wilson, Jr., in Montgomery County Superior Court. Heard in the Court of Appeals 24 April 2007.

Stanley W. West, Southern Pines, for plaintiffs-appellees.

Mack Sperling and David L. Neal, Greensboro, for defendant-appellant.

TYSON, Judge.

Robert M. Barefoot, as trustee for the Robert M. Barefoot Revocable Trust, ("defendant") appeals from judgment entered which ordered defendant to specifically perform a contract to convey real and personal property to Thomas L. Curran and Josephine Curran (collectively "plaintiffs"). Defendant also appeals from order entered denying his Rule 59 motion for a new trial and Rule 60(b) motion for relief from judgment. We affirm in part, reverse in part, and remand.

I. Background

Defendant owns a house ("the lake house") on Lake Tillery in Mt. Gilead, North Carolina. On 19 November 2003, plaintiffs and defendant executed an Offer to Purchase and Contract ("the contract"). Defendant agreed to convey the lake house to plaintiffs. An addendum accompanying the contract listed certain items of personal property defendant agreed to convey with the lake house: (1) "[a]ll furniture, linens, window treatments, appliances, pictures, towels, flatware, dishes, and all other items currently in the [lake] house" except "clothes and personal items;" (2) "[o]ne antique wardrobe located in an upstairs bedroom;" (3) "[o]ne small table located in [the] downstairs hallway;" and (4) "[a]ll watercraft and accessories." Defendant refused to tender and convey on the scheduled closing date.

On 29 January 2004, plaintiffs filed suit against defendant seeking specific performance of the contract. After a bench trial, the trial court found and concluded as a matter of law: (1) an enforceable contract existed between plaintiffs and defendant; (2) the contract should be reformed to correct draftsman's errors and mutual mistakes of the parties; (3) defendant repudiated the contract in late December 2003, refused to close the transaction, and breached the contract; (4) the subject real property is unique such that money damages are not an adequate remedy; and (5) plaintiffs are entitled to specific performance of their contract with defendant for conveyance of the subject real property and the associated personal property listed in the addendum, including watercraft. The trial court entered judgment on 30 December 2005.

On 9 January 2006, defendant moved for relief from the trial court's 30 December 2005 judgment, or alternatively for a new trial. The trial court denied defendant's motions on 13 February 2006. Defendant appeals from the judgment and this order.

II. Issues

Defendant argues the trial court erred by granting plaintiffs specific performance of the contract because: (1) there was no evidence plaintiffs were ready, willing, and able to consummate the transaction; (2) the contract was unclear, incomplete, inconsistent, and ambiguous; and (3) specific performance is not an appropriate remedy for contracts involving personal property. Defendant also argues the trial court erred by denying his Rule 60(b) motion for relief from judgment and asserts it does not own the three watercraft ordered to be transferred to plaintiffs.

III. Specific Performance

A. Standard of Review

"The standard of review on appeal from a judgment entered after a non-jury trial is `whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment.'" Cartin v. Harrison, 151 N.C.App. 697, 699, 567 S.E.2d 174, 176 (quoting Sessler v. Marsh, 144 N.C.App. 623, 628, 551 S.E.2d 160, 163, disc. rev. denied, 354 N.C. 365, 556 S.E.2d 577 (2001)), disc. rev. denied, 356 N.C. 434, 572 S.E.2d 428 (2002).

"The trial court's findings of fact are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary." Resort Realty of the Outer Banks, Inc. v. Brandt, 163 N.C.App. 114, 116, 593 S.E.2d 404, 408, appeal dismissed and disc. rev. denied, 358 N.C. 236, 595 S.E.2d 154 (2004). "When competent evidence supports the trial court's findings of fact and the findings of fact support its conclusions of law, the judgment should be affirmed in the absence of an error of law." Id. The trial court's conclusions of law drawn from the findings of fact are reviewable de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).

B. Ready, Willing, and Able

Defendant argues the trial court erred by granting plaintiffs specific performance of the contract and asserts no evidence shows plaintiffs were ready, willing, and able to consummate the transaction. Defendant also argues the evidence shows plaintiffs were not ready, willing, and able to consummate the transaction after it repudiated the contract. We disagree.

Our Supreme Court has stated:

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.

Munchak Corp. v. Caldwell, 301 N.C. 689, 694, 273 S.E.2d 281, 285 (1981) (internal quotation and citations omitted). This Court has stated:

Plaintiff's offer to perform does not have to be shown where defendant refused to honor or repudiates the contract. . . . As long as plaintiff is able, ready, and willing to perform the conditions of the contract remaining to be performed, he will not be barred from relief[.]

Mizell v. Greensboro Jaycees, 105 N.C.App. 284, 289, 412 S.E.2d 904, 908 (1992) (internal citations and quotation omitted).

The contract set the closing date as 31 December 2003. On 23 December 2003, defendant's counsel, J. Nathan Duggins, III, Esq., sent a letter to defendant's real estate agent David Whitley ("Whitley"). The letter stated, "[T]he Offer to Purchase and Contract . . . dated November 19, 2003 is terminated[.] . . . [Defendant] will not appear at any closing with regard to [the lake house][.]" Plaintiffs learned of the existence of this letter which repudiated the contract on 29 December 2003.

In its judgment, the trial court found as fact:

9. Prior to being advised of the letter from Defendant's attorney of 12/23/2003, the Plaintiffs were proceeding towards closing and could have closed either on 12/31/2003 or within a reasonable time thereafter.

10. At all relevant times, Plaintiffs continue to be ready, willing, and able to close on (sic) purchase of the subject real estate and related personal property, on reasonable notice to do so.

Although defendant assigned error to these findings of fact, they "are binding on appeal as long as competent evidence supports them, despite the existence of evidence to the contrary." Resort Realty of the Outer Banks, Inc., 163 N.C.App. at 116, 593 S.E.2d at 408.

Competent evidence supports the trial court's findings of fact. Thomas L. Curran ("Thomas") testified in early December 2003, plaintiffs contracted for a home inspection and an appraisal to be performed on the lake house. Plaintiffs also met with defendant and discussed which items of furniture and other personal property defendant wanted to leave or remove prior to closing.

Plaintiffs also presented the testimony of Francis Poutier ("Poutier"), their mortgage broker. Poutier qualified as an expert witness and testified: (1) Thomas contacted him on 8 December 2003 about obtaining a mortgage loan to purchase the lake house by the end of the year; (2) after receiving information back from lenders, it did not appear there would be a problem getting a mortgage loan approved; (3) plaintiffs obtained a loan commitment letter with certain contingencies from Washington Mutual on 16 December 2003; (4) plaintiffs declined the Washington Mutual loan; (5) he began the process of obtaining a mortgage loan from Alterna Mortgage; and (6) if plaintiffs had telephoned him at the end of 2003 and stated the closing was on for approximately the first week of January 2004, Alterna was "on board for a closing."

On 23 December 2003, Poutier wrote a letter to Whitley, defendant's real estate agent. The letter stated:

[Plaintiffs] are in the process of being approved for a mortgage loan for the purchase of [the lake house].

Currently the lender is clearing several stipulations for final approval. Current anticipated closing date remains 31 December 2003. However, due to the holiday schedules, and unanticipated work loads at the underwriting level, please anticipate possible slippage in closing to on or about 6 January, 2004. Please understand best efforts are being made to maintain contract schedule.

Competent evidence supports the trial court's finding that plaintiffs were ready, willing, and able to close on the purchase of the lake house upon reasonable notice even after defendant's repudiation.

The contract between the parties does not contain a time-is-of-the-essence clause. "It is well settled that absent a time-is-of-the-essence clause, North Carolina law `generally allows the parties [to a realty purchase agreement] a reasonable time after the date set for closing to complete performance.'" Dishner Developers, Inc. v. Brown, 145 N.C.App. 375, 378, 549 S.E.2d 904, 906 (quoting Fletcher v. Jones, 314 N.C. 389, 393, 333 S.E.2d 731, 734 (1985)), aff'd, 354 N.C. 569, 557 S.E.2d 528 (2001). Competent evidence shows plaintiffs were financially able to close the transaction on or within a reasonable time after the scheduled 31 December 2003 closing date. This...