Electronic World, Inc. v. Barefoot, COA01-1197.

• Decision Date: 15 October 2002
• Docket Number: No. COA01-1197.,COA01-1197.
• Court: North Carolina Court of Appeals
• Parties: ELECTRONIC WORLD, INC., Plaintiff, v. Rickey J. BAREFOOT, Katherine Barefoot, Mike Chandler and Tommy Chandler, Defendants.

570 S.E.2d 225

153 NC App. 387

ELECTRONIC WORLD, INC., Plaintiff, v. Rickey J. BAREFOOT, Katherine Barefoot, Mike Chandler and Tommy Chandler, Defendants.

No. COA01-1197.

Court of Appeals of North Carolina.

October 15, 2002.

Marshall, Williams & Gorham, L.L.P., by John L. Coble, Wilmington, for plaintiff appellant.

Ramos and Lewis, L.L.P., by Michael R. Ramos, Shallotte, for defendant appellees.

TIMMONS-GOODSON, Judge.

Electronic World, Inc. (hereinafter "plaintiff") appeals from summary judgment granted by the trial court in favor of Rickey Barefoot, Katherine Barefoot, Mike Chandler, and Tommy Chandler (hereinafter collectively, "defendants"). For the reasons stated herein, we reverse the judgment and remand this case to the trial court.

An examination of the pleadings, exhibits, and depositions filed in response to defendants' summary judgment motion, considered in the light most favorable to plaintiff, tends to show the following: In 1986, plaintiff entered into a lease with Frances Barefoot for the possession of certain real property located at 924 Jefferson Street, also known as U.S. Highway 74/76, in Whiteville, North Carolina. The terms of the lease ("1986 lease") included possession of a store named "Shorty's Convenient Mart" (hereinafter "Shorty's") located on the property. The property also included two underground gasoline storage tanks ("original gasoline tanks"). After acquiring possession of the property, plaintiff installed two additional underground gasoline tanks ("additional gasoline tanks"), attached gasoline pumps on the gasoline aisles, and acquired the necessary permits for the sale of gasoline at Shorty's. Plaintiff tendered rental payments to Frances Barefoot for the full term of the 1986 lease.

On or before 16 December 1996, Frances Barefoot transferred title of the property to her son, Rickey Barefoot ("Barefoot") and his wife, Katherine Barefoot (hereinafter collectively, "the Barefoots"), and on 16 December 1996, plaintiff and the Barefoots executed a lease ("1996 lease") of the property. Under the terms of the 1996 lease, plaintiff and the Barefoots agreed that the lease would begin 20 October 1996 and expire 19 October 2007. Plaintiff agreed to pay $425.00 per month for rental of the premises, with a gradual increase over the years of the lease.¹ The lease agreement contained the following description of the premises: "all that certain parcel of land together with improvements presently known as Shortie's [sic] Convenient Mart, located on U.S. 74/76 in Whiteville, Columbus County, North Carolina." During the lease negotiations, Rickey Barefoot and plaintiff discussed the fact that both the original and additional gasoline tanks required removal and/or replacement pursuant to state and federal law. Barefoot acknowledged that the tanks needed replacement and agreed to repave the parking lot once the replacement was completed.

Plaintiff thereafter continued to sell gasoline at Shorty's and tender rental payments to the Barefoots. In December of 1997, the Environmental Protection Agency ("EPA") informed plaintiff that it must remove or replace the original gasoline tanks. Raymond Banks Watts ("Watts"), the president of plaintiff corporation, informed Frances Barefoot that he would assist in removing the original gasoline tanks, but that she would have to hire someone for the removal if his equipment was inadequate. According to Watts, Rickey Barefoot informed both Watts and the environmental testing company hired for the job that he would "take care of" the costs for removing the tanks. Consequently, workers began excavating the original gasoline tanks on the property. After the initial excavation, however, Barefoot refused to contribute any further payments, forcing plaintiff to complete the removal at a cost of $5,455.12.

Later that year, Barefoot leased to Mike and Tommy Chandler (hereinafter collectively, "Chandler"), certain real property located at 926 Jefferson Street. Chandler then began operating a business known as "Bogue Motor Sales" on the property, which is adjacent to the property leased by plaintiff. After signing the Barefoot-Chandler lease, Barefoot asked Watts if he was interested in selling Shorty's to Chandler. Watts informed Barefoot that he would discuss the sale of Shorty's with Chandler. Subsequently, Mike Chandler approached Watts and offered to purchase Shorty's from plaintiff, but sales discussions quickly collapsed and Mike Chandler in turn informed Watts that "we really don't want the business, we just want the property."

After this incident, Watts witnessed Barefoot visiting the neighboring Chandler business on several occasions. On one such occasion, Barefoot invited Watts to the Chandler office in order to "resolve this." Watts refused, and shortly thereafter, Chandler began parking used vehicles on the property under which the additional gasoline tanks were located. Although Watts repeatedly asked Chandler to remove the vehicles from the property, Chandler refused to do so.

Because the vehicles obstructed plaintiff's access to the gasoline tanks, plaintiff allegedly was unable to replace them, as required by state and federal law. Plaintiff was thereby forced to discontinue its sale of gasoline at Shorty's. Chandler's customers then began using plaintiff's property as a parking lot— "even to the point of leaving [their] cars parked at [plaintiff's] gas pumps" while they visited and test-drove vehicles from Chandler's business. When Watts asked Barefoot to intervene and prevent Chandler from parking vehicles on the property, Barefoot became "hostile," cursed Watts, refused to acknowledge that plaintiff was entitled to possession of the gasoline tanks, and made no attempts to prevent Chandler from parking vehicles on plaintiff's property. Watts contacted law enforcement officers on several occasions regarding Chandler's increasingly hostile behavior towards plaintiff. For example, on one occasion, Tommy Chandler threatened to "slap [Watts'] head off."

After the dispute between plaintiff and Chandler arose, Barefoot surveyed the property. Barefoot then informed Watts that the land encompassing the gasoline tanks was part of the rental property covered in the Barefoot-Chandler lease. In 1999, after receiving a letter from the EPA, Chandler removed the cars from the land where the gasoline tanks were located. Barefoot did not, however, remove or replace the additional gasoline tanks as required by state and federal law. Subsequently, plaintiff hired a consultant to remove the additional gasoline tanks at a cost of $8,447.00.

On 16 February 2000, plaintiff filed a complaint against defendants alleging breach of lease, trespass, civil conspiracy, and unfair and deceptive trade practices. Plaintiff also sought recovery for monies allegedly due from Barefoot for removal of the original and additional gasoline tanks. On 18 May 2000, defendants filed their answer, in which they asserted four affirmative defenses, including, inter alia, that plaintiff's lease failed "to adequately describe the leased premises as required by the statute of frauds." Moreover, Chandler asserted a counterclaim against plaintiff for trespass.

On 8 February 2001, defendants filed a motion for summary judgment, which was heard by the trial court on 4 June 2001. Upon review of the pleadings, exhibits, depositions, and arguments of counsel, the trial court found that "the lease referred to in plaintiff's complaint and attached thereto and giving rise to plaintiff's claim is void in that the description contained in said lease is inadequate to support the actions of the plaintiff." The trial court therefore concluded that defendants were entitled to judgment as a matter of law and consequently granted defendants' motion for summary judgment. Plaintiff appeals.

The dispositive issues before this Court are whether the trial court erred in (1) concluding that the lease referenced in the complaint was void and (2) granting summary judgment in favor of defendants based on its conclusion that a lease rendered void by the statute of frauds bars any claims that arise in connection with the lease.

Summary judgment is appropriate when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." N.C. Gen.Stat. § 1A-1, Rule 56(c) (2001). The party moving for summary judgment has the burden of showing that either an essential element of the plaintiff's claim does not exist, or that plaintiff cannot produce evidence to support an essential element of the claim. Evans v. Appert, 91 N.C.App. 362, 365, 372 S.E.2d 94, 96, disc. review denied, 323 N.C. 623, 374 S.E.2d 584 (1988). In determining the propriety of summary judgment, all evidence is viewed in the light most favorable to the non-movant. See Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998)

.

Plaintiff contends that the trial court erred in concluding that the lease referenced in plaintiff's complaint was void because the description of the land conveyed was insufficient as a matter of law. We agree with plaintiff.

To be enforceable, a lease must meet the requirements of the statute of frauds. See N.C. Gen.Stat. § 22-2 (2001). Section 22-2 of the North Carolina General Statutes states that, "all ... leases and contracts for leasing lands exceeding in duration three years from the making thereof, 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." Id. "The writing must contain a description of the land to be conveyed, certain in itself, or capable or being rendered certain by reference to an external source referred to therein." House v. Stokes, 66 N.C.App. 636, 638, 311 S.E.2d 671, 673, cert. denied, 311 N.C. 755, 321...