Nesbit v. Cribbs, No. COA09-886 (N.C. App. 3/16/2010), COA09-886.

CourtCourt of Appeal of North Carolina (US)
PartiesCARL E. NESBIT, JR. and wife, TINA NESBIT, Plaintiffs, v. WILLIAM L. CRIBBS and wife, DIANE CRIBBS, Defendants.
Docket NumberNo. COA09-886.,COA09-886.
Decision Date16 March 2010

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Unpublished Opinion

CARL E. NESBIT, JR. and wife, TINA NESBIT, Plaintiffs,
WILLIAM L. CRIBBS and wife, DIANE CRIBBS, Defendants.
No. COA09-886.
Court of Appeals of North Carolina.
Filed: March 16, 2010.
This case not for publication

Macon County No. 07 CVD 199.

Appeal by Defendants from orders entered 15 September 2008 and 6 April 2009 by Judges Bradley B. Letts and Richlyn D. Holt, respectively, in Macon County District Court. Heard in the Court of Appeals 1 December 2009.

Collins & Hensley, P.A., by Joseph M. Collins, for PlaintiffA-ppellees.

Coward, Hicks & Siler, P.A., by William H. Coward, for Defendant-Appellants.


William L. Cribbs and Diane Cribbs (Defendants) appeal from: (1) the 15 September 2008 order granting partial summary judgment in favor of Carl E. Nesbit, Jr. and Tina Nesbit (Plaintiffs), determining as a matter of law that the lease contained in the written document between the parties is terminable at will by either party and (2) the order entered 6 April 2009 following a

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bench trial granting judgment for Plaintiffs and dismissing Defendants' counterclaims. For the following reasons, we affirm in part and reverse and remand in part.

Plaintiffs and Defendant William L. Cribbs entered into a written agreement (Agreement) dated 1 September 1996 for the purchase by Plaintiffs of approximately one acre of land and a mobile home located at 41 May Drive in the Iolta Community of Franklin, North Carolina. The Agreement set forth that the principal amount of the purchase would be $26,500.00 and specified the monthly payment terms of the seller-financed sale. Included in the Agreement was a provision that Plaintiffs would lease the front portion of the property to Defendant Cribbs for the sum of $1.00 per year "indefinitely."

As of 3 September 1996, the date on which Plaintiffs and Defendant Cribbs executed the contract, said Defendant was the owner of 1.17 acres located at 44 McCall Circle in Franklin, North Carolina. Defendant Cribbs had entered into an "Offer to Purchase and Contract" with William and Gertrude Lopanik for the sale of certain real property said to be located at 44 McCall Circle, Franklin, Macon County, North Carolina. The purchase price was $18,500.00. On 31 October 1995, Defendant Cribbs received a general warranty deed for 1.17 acres, said deed being recorded in Deed Book C-21, at Page 942 of the Macon County Land Registry. A survey map prepared by Sprinkle Surveying, P.A. on 8 July 2006 depicts the location and boundaries of the property between McCall Circle and May Drive in Franklin Township, Macon County, North

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Carolina. This real property was the only property owned by Defendant Cribbs in the vicinity of May Drive, Franklin, North Carolina at the time the Agreement was executed.

At the time the parties signed the Agreement, the mobile home which Plaintiffs intended to purchase was situated on the property to the north. Plaintiff Carl E. Nesbit, Jr. and Defendant Cribbs had walked the property prior to executing the Agreement and marked the dividing line between the front portion, which Plaintiffs were to lease to Defendant Cribbs, and the back portion of the property. Plaintiffs moved onto the property within one month of signing the Agreement and continued to pay monthly payments to Defendant Cribbs for approximately ten years thereafter.

Since the parties entered into the Agreement, Defendants have moved two mobile homes upon the front portion of the property, shown as Lot 2 of the Sprinkle Surveying plat, and have maintained control, rents, and leases of said mobile homes. The mobile homes have remained on the property throughout the pendency of this action. On 18 June 1998, Defendant Cribbs forwarded a check to Plaintiffs in the sum of $2.00, representing payment for the lease on the front portion of the property from September 1996 until September 1998. On 21 June 1999, Defendant Cribbs forwarded another check to Plaintiffs in the sum of $25.00 for lease payments through October 2024.

Prior to signing the Agreement, and thereafter, Defendant Cribbs had made preparations with respect to the front portion of the property so that he could place mobile homes on it and lease

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them to third parties. On or about 6 February 1996, Defendant Cribbs paid West Plumbing for the preparation of water lines on the property, and on 12 July 1996, he made an application to Macon County for septic systems for two mobile homes to be placed on the property. At the time Defendant Cribbs applied for the septic tanks, he received three separate 911 addresses. These addresses were provided on or about 12 June 1996 and were for: 41 May Drive, 15 May Drive, and 349 McCall Circle. However, at no time prior to or after the execution of the Agreement between the parties was the property surveyed out specifically to denote such 911 change.

On 12 August 1996, Defendant Cribbs had obtained two improvement permits for two mobile homes, which he intended to place on the property. On 15 August 1996, a mobile home was moved onto the property with the address of 15 May Drive, and Defendant Cribbs obtained a building permit for said address the next day. As of August 1996, the underground water lines to the mobile home locations on the front portion of the property were completed. On 2 September 1996, a subsurface sewerage permit was obtained from Macon County by Defendant Cribbs, and on or about 4 September 1996, the septic system was installed. Both Plaintiffs and Defendants understood and agreed, and continue to agree, that the mobile homes on the front portion of the property are the sole property of Defendants and that Defendants have the right and ability to remove the same from the property at their will.

In 2006, Defendants erected, or caused to be erected, a metal fence upon the division line establishing the front portion of the

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property. Defendants had the property surveyed by Sprinkle Surveying, as mentioned above, to show the location of the division line.

When Plaintiffs tendered final payment, they made demand upon Defendants for a warranty deed, which Defendants refused to deliver. On 5 April 2007, Plaintiffs filed a declaratory judgment action against Defendants, seeking a determination of the property to be conveyed and of the lease provisions of the Agreement. Further, Plaintiffs sought an order that Defendants tender to them a deed for the property. On 30 April 2008, Plaintiffs moved for partial summary judgment on the grounds that the word "indefinitely" in the lease-back provision converted that portion of the Agreement into a tenancy at will. At the hearing for partial summary judgment, the trial court ruled that the lease was for an indefinite term and, thus, terminable at will as a matter of law. Defendants gave notice of appeal, and both parties filed briefs, but Defendants subsequently dismissed their appeal before a hearing was had on the matter. Following a bench trial at the 2 March 2009 term of Macon County District Court, the trial court entered judgment in favor of Plaintiffs on 6 April 2009. The trial court ordered that the Agreement at issue is a contract for the purchase of 1.17 acres, located at 41 May Drive, Franklin, Macon County, North Carolina, as described in the deed from William and Gertrude Lopanik. The court also adjudged that the purchase price for 1.17 acres was $26,500.00 and that said sum had been paid or tendered in full from Plaintiffs to Defendants. Additionally, the

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trial court concluded that the lease for the front portion of the property consisted of 0.554 acre, the same being designated as Lot 2 on the survey plat by Sprinkle Surveying. Finally, the trial court dismissed Defendants' claims and awarded Plaintiffs specific performance, ordering Defendants to execute and deliver to them a warranty deed. Defendants appeal.

I. Duration of the Lease

Defendants challenge the trial court's ruling that the lease-back provision in the Agreement does not specify a determinate length of time and thus, as a matter of law, the lease is terminable at will by either party. They contend the trial court erred in granting Plaintiffs' pre-trial Motion for Partial Summary Judgment on the grounds that (1) there is a genuine issue of material fact as to the term of the parties' lease and (2) the court attempted to convert the lease provision to a tenancy at will instead of a periodic tenancy.

A. Standard of Review

We review the trial court's granting of partial summary judgment under a well-established standard: "Our standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 523-24, 649 S.E.2d 382, 385 (2007)); see also N.C. Gen. Stat.

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§ 1A-1, Rule 56(c) (2009). "A `genuine issue' is one that can be maintained by substantial evidence." Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). "In ruling on a motion for summary judgment, `the court may consider the pleadings, depositions, admissions, affidavits, answers to interrogatories, oral testimony and documentary materials,'" Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004) (quoting Dendy v. Watkins, 288 N.C. 447, 452, 219 S.E.2d 214, 217 (1975)), and "`the trial judge must view the presented evidence in a light most favorable to the nonmoving party.'" Will of Jones, 362 N.C. at 573, 669 S.E.2d at 576 (quoting Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001)). "If the movant demonstrates the absence of a genuine issue of material fact, the burden shifts to the nonmovant to present specific facts which establish the presence of a genuine factual dispute for trial[,]" and "[i]f...

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