Mosely v. WAM, INC.

• Decision Date: 21 December 2004
• Docket Number: No. COA03-1554.,COA03-1554.
• Citation: 167 NC App. 594,606 S.E.2d 140
• Parties: Frances C. MOSELY v. WAM, INC., David J. Wilson, Beth H. Wilson, Edwin L. Yancey, Jill J. Yancey, Kenneth B. Meyer, and Elizabeth B. Meyer, jointly and severally; J.M. N.C. State, Inc., successor in interest to Wam, Inc., Edwin L. Yancey, Jill J. Yancey, Kenneth B. Meyer, and Elizabeth B. Meyer v. American Food Corporation, Marcus K. Gurganus, Chrysanthe Georges f/k/a Chrysanthe Gurganus, Ernest T. Gurganus, and Maria M. Gurganus.
• Court: North Carolina Court of Appeals

606 S.E.2d 140

167 NC App. 594

Frances C. MOSELY v. WAM, INC., David J. Wilson, Beth H. Wilson, Edwin L. Yancey, Jill J. Yancey, Kenneth B. Meyer, and Elizabeth B. Meyer, jointly and severally;

J.M. N.C. State, Inc., successor in interest to Wam, Inc., Edwin L. Yancey, Jill J. Yancey, Kenneth B. Meyer, and Elizabeth B. Meyer v. American Food Corporation, Marcus K. Gurganus, Chrysanthe Georges f/k/a Chrysanthe Gurganus, Ernest T. Gurganus, and Maria M. Gurganus.

No. COA03-1554.

Court of Appeals of North Carolina.

December 21, 2004.

Younce Hopper Vtipil & Bradford, by Kevin P. Hopper, and Nicholls & Crampton, by Kevin Sink, Raleigh, for Third-Party Defendants-Appellants.

Faison & Gillespie, by Michael R. Ortiz and John-Paul Schick, Durham, for Third-Party Plaintiffs-Appellees. WYNN, Judge.

Third-Party Defendants (American Food Corporation, Marcus K. Gurganus, Chrysanthe Georges f/k/a/ Chrysanthe Gurganus, Ernest T. Gurganus, and Maria M. Gurganus) (hereinafter collectively referred to as "American Food Corporation"), appeal from an order granting summary judgment in favor of Third-Party Plaintiffs (J.M. N.C. State, Inc., successor in interest to WAM, Inc., David J. Wilson, Beth H. Wilson, Edwin L. Yancey, Jill L. Yancey, Kenneth B. Meyer, and Elizabeth B. Meyer) (hereinafter collectively referred to as "J.M. N.C. State"). After careful review, we affirm.

In 1997, pursuant to an assignment, J.M. N.C. State operated a Jersey Mike's submarine sandwich shop on premises leased under a commercial contract with Plaintiff Frances C. Mosely. During that year, J.M. N.C. State began negotiations with American Food Corporation, for the sale of the Jersey Mike's franchise. As a result, on 2 January 1998, the parties signed and entered into a Purchase and Sale Agreement which set forth the terms and conditions of the sale. Additionally, American Food Corporation paid a purchase price of $255,000 to assume the disputed lease and purchase the Jersey Mike's franchise, as well as all of the inventory, furniture, fixtures, and equipment at the store. To facilitate the agreement, the parties entered into an Assignment, Modification, and Assumption of Lease ("Assignment Agreement").

Although the Assignment Agreement had a signature block for Mosely (the landlord) to sign, this never occurred. In fact, Mosely indicated that she only became aware of the written Assignment ten months after it was executed. In the meantime, American Food Corporation occupied the premises, operated the Jersey Mike's franchise, and paid all monthly rent payments directly to Mosely, who made no objection to the payments during this time.

In 1999, American Food Corporation sold the Jersey Mike's franchise to Jeffrey A. Warren. This sale was for the same assets and purchase price as the transaction between J.M. N.C. State and American Foods Corporation. Although the record fails to show that Mosely approved this transaction and assignment, it does show that she accepted, without objection, monthly rent payments from Warren. Warren stated in his affidavit that American Food Corporation affirmatively represented at the time of the sale that he would be getting a four-year lease, not a month-to-month tenancy. Warren operated the store until 2001, when he closed it prompting Mosely to bring this action for the unpaid rent due under the lease against J.M. N.C. State who thereafter, filed an Amended Answer, Motions, and Third-Party Complaint, which impleaded and sought indemnification from American Food Corporation.

On 1 February 2002, Moseley voluntarily dismissed, with prejudice, three of the Plaintiffs — WAM, Inc., David Wilson, and Beth Wilson. On 10 September 2002, the trial court awarded an entry of default judgment against two of the Third-Party Defendants — Ernest and Maria Gurganus. On 28 March 2003, the trial court granted summary judgment against American Food Corporation. From that judgment, American Food Corporation appealed.

"[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C.App. 729, 733, 504 S.E.2d 574, 577 (1998). Also, the evidence presented by the parties must be viewed in the light most favorable to the non-movant. Id. The court should grant summary judgment 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) (2003).

The initial burden of establishing that there is no issue of material fact lies with the movant, but once this burden is satisfied, the burden then switches to the non-movant to show a genuine issue of material fact. Thompson v. First Citizens Bank & Trust Co., 151 N.C.App. 704, 706, 567 S.E.2d 184, 187 (2002). "An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action." Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). Once the movant meets this burden, the non-movant must "produce a forecast of evidence" demonstrating specific facts, as opposed to allegations, establishing at least a prima facie case at trial. Thompson, 151 N.C.App. at 706, 567 S.E.2d at 187.

In this appeal, American Food Corporation argues that the trial court erred in granting summary judgment for J.M. N.C. State, and contends that the evidence raised a genuine issue of material fact regarding the assignment of the lease from J.M. N.C. State to American Food Corporation. We disagree.

Under the general rules of contract construction, where an agreement is clear and unambiguous, no genuine issue of material fact exists and summary judgment is appropriate. Corbin v. Langdon, 23 N.C.App. 21, 27, 208 S.E.2d 251, 255 (1974). In contrast, an ambiguity exists in a contract if the "`language of the [contract] is fairly and reasonably susceptible to either of the constructions asserted by the parties.'" Taha v. Thompson, 120 N.C.App. 697, 701, 463 S.E.2d 553, 556 (1995) (citation omitted). Also, all contemporaneously executed written instruments between the parties, relating to the subject matter of the contract, are to be construed together in determining what was undertaken. Yates v. Brown, 275 N.C. 634, 640, 170 S.E.2d 477, 482 (1969). American Food Corporation argues that the Assignment Agreement is ambiguous as to whether it requested or required Mosely to sign the Assignment. The Assignment Agreement states, "WHEREAS, J.M. N.C. State, Inc. has requested that Frances C. Moseley join in this assignment to express her consent to the same ... I Consent. [Blank signature block of Frances C. Moseley]." In construing a contract neither party can obtain an interpretation contrary to the express language of a contract by the assertion that it does not truly express his intent. Fidelity & Cas. Co. of N.Y. v. Nello L. Teer Co., 250 N.C. 547, 550, 109 S.E.2d 171, 173 (1959). The Assignment Agreement provision states that J.M. N.C. State "requested" Mosely's signature. "Requested" is defined as "[t]o express a desire for; ask for." THE AMERICAN HERITAGE COLLEGE DICTIONARY 1160 (3d ed.1997). If Mosely's signature was necessary for the Assignment Agreement to be effective, the Assignment Agreement could have contained the term "required," "necessitate," or "mandatory." Since the Assignment Agreement is unambiguous on the face of the document, this Court must interpret the document as written. Martin v. Vance, 133 N.C.App. 116, 121, 514 S.E.2d 306, 309 (1999). We hold that the Assignment Agreement did not require Mosely's signature to be effective. Therefore, we conclude there was a valid assignment.

American Food Corporation also argues that while it and the other parties signed the Assignment Agreement, they did not intend to be bound by the Assignment Agreement on 2 January 1998, but only on a later date if Mosely signed it. American Food Corporation argues that their lack of assent to the Assignment Agreement makes it not binding on them. We disagree.

Before a valid contract can exist, there must be mutual agreement between the parties as to the terms of the contract. Walker v. Goodson Farms, Inc., 90 N.C.App. 478, 486, 369 S.E.2d 122, 126 (1988). Where there is no mutual agreement, there is no contract. If a question arises concerning a party's assent to a written instrument, the court must first examine the written instrument to ascertain the intention of the parties. Routh v. Snap-On Tools Corp., 108 N.C.App. 268, 273, 423 S.E.2d 791, 795 (1992).

Here, the Assignment Agreement provides:

American Food Corporation agrees to assume all the obligations of J.M. N.C. State, Inc. as the same were guaranteed by Edwin L. Yancey, Jr. and Jill J. Yancey, and, Kenneth D. Meyer and Elizabeth B. Meyer. The obligations of American Food Corporation, including obligations related to payment of attorney fees, are hereby guaranteed jointly and severally by Marcus K.

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