DeTorre v. Shell Oil Co., 8610SC828

• Decision Date: 03 March 1987
• Docket Number: No. 8610SC828,8610SC828
• Citation: 353 S.E.2d 269,84 N.C.App. 501
• Parties: Peggy Lynn DeTORRE and Husband, James B.W. DeTorre, and Raymond W. Allen v. SHELL OIL COMPANY and Quality Oil Company.
• Court: North Carolina Court of Appeals

Page 269

353 S.E.2d 269

84 N.C.App. 501

Peggy Lynn DeTORRE and Husband, James B.W. DeTorre, and Raymond W. Allen v. SHELL OIL COMPANY and Quality Oil Company.

No. 8610SC828.

Court of Appeals of North Carolina.

March 3, 1987.

Newsom, Graham, Hedrick, Bryson & Kennon by Charles F. Carpenter, Durham, for plaintiffs-appellants.

Petree Stockton & Robinson by Leon E. Porter, Jr., and R. Rand Tucker, Winston-Salem, for defendants-appellees.

JOHNSON, Judge.

Plaintiffs' only Assignment of Error challenges the trial court's granting of defendants' motion for judgment on the pleadings pursuant to Rule 12(c). At issue is whether the trial court properly granted defendants' motion as a matter of law. We find no error.

Our scope of review of a Rule 12(c) motion is to determine whether granting the motion was proper or in error. A motion for judgment on the pleadings, or a Rule 12(c) motion, is proper when all the material allegations of fact are admitted on the pleadings and only questions of law remain. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). The movant must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. Cathy's Boutique v. Winston-Salem Joint Venture, 72 N.C.App. 641, 642-43, 325 S.E.2d 283, 284 (1985). Because judgment on the pleadings is a summary procedure and the judgment is final, the movant is held to a strict standard and must show that no material issue of fact exists. Ragsdale v. Kennedy, supra, 286 N.C. at 137, 209 S.E.2d at 499.

Plaintiffs argue that defendants wilfully breached the lease agreement by "removing and destroying the existing structures and pavement on said leasehold." Defendants admit as much in their answer. Plaintiffs incorporated a copy of the lease agreement into the complaint by reference, thereby making the lease part of the pleadings for purposes of Rule 12(c). The trial court properly looked at the lease to see if the terms were plain and unambiguous when deciding defendants' motion. When language of a contract is plain and unambiguous its construction is a matter of law for the court. Wright v. Auto Sales, Inc., 72 N.C.App. 449, 453, 325 S.E.2d 493, 496 (1985.)

We find the language of the lease to be unambiguous. Under paragraph five (5) of the lease, defendants may construct on the premises an automobile service station and any additional buildings they desire, and may make any alterations to the premises and buildings they desire. Furthermore, defendants may use the premises for any lawful purpose. Plaintiffs have not alleged that defendants' use of the premises is for an illegal purpose, or that defendants have failed to pay rent. Defendants' removal of the buildings and pavement was clearly within their right under the lease to "alter" the premises and buildings thereon. We hold that, taken in the light most favorable to plaintiffs, the pleadings do not raise a genuine issue of fact as to whether defendants' removing and destroying buildings and pavement on the lease premises constitutes a breach of that lease agreement.

Plaintiff further alleges that the buildings originally constructed by defendants after taking possession became fixtures, and that plaintiffs as lessors have acquired an interest in such fixtures; defendant, therefore, cannot remove these fixtures without breaching the lease agreement, and whether defendants' actions constitute a breach is a genuine issue of material fact sufficient to survive a Rule 12(c) dismissal. We disagree.

This Court said in Ilderton Oil Co. v. Riggs, 13 N.C.App. 547, 551, 186 S.E.2d 691, 694 (1972) that:

The general rule is that any erection, even by the tenant, for the better enjoyment of the land becomes part of the land; but if it be purely for the exercise of a trade ... it belongs to the tenant, and may be severed during the term.

(Quoting Pemberton v. King, 13 N.C. 376 (1828-30)). Following Ilderton, the gas station and other buildings constructed by defendants in the case sub judice, being only for the exercise of trade, belong to the defendants and may be severed during the lease term. Furthermore, the lease did not require that any improvements be constructed on the vacant premises. This is simply a ground lease. If the plaintiffs had...