Robertson v. Hartman, 8722DC691
| Decision Date | 17 May 1988 |
| Docket Number | No. 8722DC691,8722DC691 |
| Citation | 90 N.C.App. 250,368 S.E.2d 199 |
| Parties | Viola Newman ROBERTSON v. Jimmy David HARTMAN and wife, Patsy L. Hartman. |
| Court | North Carolina Court of Appeals |
Greeson, Page and Grace by Michael R. Greeson, Jr., Winston-Salem, for plaintiff-appellant.
J. Calvin Cunningham, Lexington, for defendants-appellees.
Plaintiff filed this civil action on 22 September 1986 seeking specific performance of a contract reduced to writing on 8 May 1986, in which she agreed to sell and defendants agreed to purchase a certain tract of real property. She also sought damages for the alleged malicious damage to her real property. As an alternative remedy, plaintiff sought the difference between the contract price and the future resale price. Plaintiff appeals from an entry of summary judgment for defendants.
The agreement entered by and between the parties states the following in its entirety:
This agreement by and between Viola Newman Robertson (divorced) and Jimmy David Hartman and wife, Patsy L. Hartman, is for the sale of Lot # 9, Midway Acres, for the sale price of NINE THOUSAND TWO HUNDRED FIFTY AND NO/100 DOLLARS ($9,250.00). A deposit of FIVE HUNDRED DOLLARS ($500.00) is received by Viola Robertson this date as a deposit until such time as the deed can be prepared and the title can be searched. The balance of the sale price of EIGHT THOUSAND SEVEN HUNDRED FIFTY AND NO/100 ($8,750.00) shall be paid at the time of the deed delivery. In the event the sale is not completed because of title irregularities, the said deposit shall be returned. (Emphasis added).
This the 8th day of May, 1986.
s/VIOLA NEWMAN ROBERTSON (SEAL)
Viola Newman Robertson
s/JIM DAVID HARTMAN (SEAL)
Jimmy David Hartman
s/PATSY L. HARTMAN (SEAL)
Prepared in duplicate Pursuant to the agreement, defendants gave plaintiff a check in the amount of $500.00 on 8 May 1986 as earnest money; completion of the sale pending preparation of the deed and a title search free of "title irregularities." At defendants' direction, Ted S. Royster, Jr., Attorney-at-Law rendered a title opinion to them on 15 May 1986. The opinion provided that the placement of a mobile home on the lot in question would be in violation of restrictive covenants contained in the deed.
The first covenant, which appears at paragraph four in the deed states in pertinent part: "[n]o residence shall be erected or allowed to remain on said Lot with less than 1300 square feet of floor space on the first floor, exclusive of porches, garages or other outbuildings, whether or not attached to the residence." The second covenant, appearing at paragraph seven states in pertinent part: "[n]o trailer, basement, tent, shack, garage, barn or other outbuilding [shall be] erected on this lot or shall be at any time used as a residence temporarily or permanently."
Upon learning of the existence of the restrictive covenants, defendants stopped payment on the check deposited with plaintiff and have refused to purchase the lot. They contend that the contract to purchase the lot was conditional upon their ability to place a mobile home upon the premises, and the existence of the restrictive covenants which prohibited the placement constitutes a "title irregularity" as contemplated by the agreement.
On 12 November 1986, defendants filed a motion for summary judgment, and on 25 March 1987 their motion was granted. From this order plaintiff appeals.
Plaintiff brings forth one Assignment of Error and argues that the court committed reversible error in granting defendants' motion for summary judgment, because the evidence, when considered in the light most favorable to the non-movant, raises a genuine issue of material fact as to whether the restrictive covenants were equivalent to a "title irregularity." We agree and reverse, as we are convinced of the existence of genuine issues of material fact yet to be decided.
The purpose of a summary judgment motion is to foreclose the need for a trial when, based upon the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are to be decided. Loy v. Lorm Corp., 52 N.C.App. 428, 278 S.E.2d...
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