Town of West Jefferson v. Edwards

• Decision Date: 07 May 1985
• Docket Number: No. 8423SC618,8423SC618
• Citation: 74 N.C.App. 377,329 S.E.2d 407
• Court: North Carolina Court of Appeals
• Parties: The TOWN OF WEST JEFFERSON v. Lenna H. EDWARDS, Ronald C. Edwards, James L. Poindexter, and Ellen C. Poindexter.

Page 407

329 S.E.2d 407

74 N.C.App. 377

The TOWN OF WEST JEFFERSON v. Lenna H. EDWARDS, Ronald C. Edwards, James L. Poindexter, and Ellen C. Poindexter.

No. 8423SC618.

Court of Appeals of North Carolina.

May 7, 1985.

Vannoy & Reeves by Jimmy D. Reeves, West Jefferson, for plaintiff-appellee.

Petree, Stockton, Robinson, Vaughn, Glaze & Maready by Dudley Humphrey and Rodrick J. Enns, Winston-Salem, for defendants-appellants.

PARKER, Judge.

The question before this court is whether plaintiff is entitled to summary judgment as a matter of law.

General Statute 1A-1, Rule 56(c) provides that summary judgment shall be rendered "if 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." The moving party has the burden of clearly establishing the lack of any triable issue of fact; his papers are carefully scrutinized while those of the nonmoving party are indulgently regarded. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). This burden may be met by proving that the opposing party either cannot produce evidence to support an essential element of his or her claim or cannot surmount an affirmative defense which would bar the claim. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981). If the moving party meets this burden, the opposing party must either assume the burden of showing that a genuine issue of material fact exists or provide an excuse for not so doing. Moore v. Fieldcrest Mills, Inc., supra. Summary judgment forces the nonmoving party to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. Id.

The first question before us is whether defendants' evidence regarding execution of the 1981 Agreement, which they contend presents a genuine issue of material fact as to the nature of the contract, would be admissible at trial. For the reasons set forth in this opinion we find that this evidence would be barred by the parol evidence rule.

Parol testimony of prior or contemporaneous negotiations inconsistent with a written contract, or which tends to substitute a new or different contract for the one evidenced by the writing, is incompetent. Craig v. Kessing, 297 N.C. 32, 253 S.E.2d 264 (1979). As our Supreme Court explained in Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953):

A contract not required to be in writing may be partly written and partly oral. However, where the parties have deliberately put their engagements in writing in such terms as import a legal obligation free of uncertainty, it is presumed the writing was intended by the parties to represent all their engagements as to the elements dealt with in the writing. Accordingly, all prior and contemporaneous negotiations in respect to those elements are deemed merged in the written agreement. And the rule is that, in the absence of fraud or mistake or allegation thereof, parol testimony of prior or contemporaneous negotiations or conversations inconsistent with the writing, or which tend to substitute a new and different contract from the one evidenced by the writing, is incompetent.

Defendants' first argument is that the 1981 Agreement was never intended to be a valid, binding contract. The 1981 Agreement is as follows:

AGREEMENT

NORTH CAROLINA

ASHE COUNTY

This Agreement, dated as of the 30 day of September, 1981, by and between THE TOWN OF WEST JEFFERSON, a municipal corporation organized and existing under and by virtue of the laws of the State of North Carolina, hereinafter referred to as "Town"; and LENNA H. EDWARDS and JAMES L. POINDEXTER, hereinafter referred to as "Edwards-Poindexter";

WITNESSETH:

WHEREAS, Edwards-Poindexter desires to develop for commercial shopping purposes that certain tract of land containing approximately 12.9 acres, located in West Jefferson Township, Ashe County, North Carolina, approximately .5 mile South of the municipal limits of the Town, and being a portion of that land fully described in that certain deed of record in the Ashe County Public Registry in Book 130, at pages 1827-1831; and being those certain lands adjacent to that approximate 9.05 acres of land which is being developed by Ingles Market, Incorporated, for a location for a shopping center to be known as Ashemont Shopping Center; and

WHEREAS, the Town desires to provide water and sewer service to said lands to be developed once said area has been annexed by the Town; and

WHEREAS, the Town has obtained an Urban Development Action Grant ("UDAG") from the Department of Housing and Urban Development, the terms of which required the Town and Edwards-Poindexter to enter into an agreement with provisions which are consistent with the grant.

NOW, THEREFORE, for good, sufficient and valuable considerations, the receipt of which is hereby acknowledged, the parties hereby covenant and agree as follows:

1. The Town agrees to use the sum of approximately $333,350 of the UDAG funds to install an eight inch (8"') water and eight inch (8"') sewer service (of approximately 5200 linear feet of water line and 3300 linear feet of sewer line) to the aforesaid property of Edwards-Poindexter.

2. In consideration of the Town extending water and sewer service to the aforesaid property belonging Edwards-Poindexter, Edwards-Poindexter agrees to pay to the Town the sum of Six Thousand Four Hundred ($6,400) Dollars for each acre developed which will be served by sewer service up to a total payment by Edwards-Poindexter to the Town of Thirty-Six Thousand ($36,000) Dollars. All payments shall be made upon the execution of leases or upon sales of all or portions of the approximately 12.9 acres of land owned by Edwards-Poindexter.

3. In addition to the payments required in Paragraph 2 above, Edwards-Poindexter shall pay to the Town the normal sewer tap fees.

4. Edwards-Poindexter agrees to pay the cost of extending water and sewer service from any portion of Edwards-Poindexter site to the main water and sewer lines which the Town agrees to place at a point on the edge of the land being developed for the Ashemont Shopping Center.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the day and year first above written.

TOWN OF WEST JEFFERSON

by: s/ Virginia H. Myers (SEAL)

ATTEST:

s/ PAUL E. TAYLOR, JR.

s/ LENNA H. EDWARDS (SEAL)

s/ RONALD C. EDWARDS (SEAL)

s/ JAMES L. POINDEXTER (SEAL)

s/ ELLEN C. POINDEXTER (SEAL)

NORTH CAROLINA

ASHE COUNTY

Defendants contend that they had an oral understanding with plaintiff that plaintiff would install water and sewer lines to the 12.9 acres, and defendants would incur no expenses. According to defendants, when plaintiff discovered that to obtain the HUD grant they would need the developers' promise to contribute to the cost, plaintiff asked defendants to sign the agreement with the intention that it would not be binding.

The apparent mutual assent of the parties to a contract must be gathered from the language of the contract; an undisclosed intention is immaterial in the absence of mistake or fraud, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. Howell v. Smith, 258 N.C. 150, 128 S.E.2d 144 (1962); Salvation Army v. Welfare, 63 N.C.App. 156, 303 S.E.2d 658 (1983), review denied 311 N.C. 306, 317 S.E.2d 682 (1984). Thus, to introduce their extrinsic evidence of intent, defendants would have to allege either fraud or mistake. Defendants allege neither; instead they rely on Borden, Inc. v. Brower, 284 N.C. 54, 199 S.E.2d 414 (1973), to support their argument that parol evidence should be admitted to show the intent of the parties, even when, as in the instant case, the agreement is unambiguous.

In Borden, plaintiff sought to recover the balance due on a promissory note. Our Supreme Court, reversing summary judgment for plaintiff, observed that since promissory notes are often intended only as a partial integration of the agreement between the parties, parol evidence as between the parties may be admissible if it is not in direct contradiction with the terms of the note.

Unlike Borden, the instant case does not involve a promissory note, and the more liberal rules generally followed in promissory note cases are not applicable. We decline to allow parol evidence to explain the parties' intent in the instant case where the contract is in clear and unambiguous terms, and defendant has not alleged fraud or mistake.

Defendants' second argument is that parol evidence should be admissible to prove that the 1981 Agreement, which is absolute on its face, was...