Alchemy Communications Corp. v. Preston Development Co. , 148 N.C. App. 219 ( 2002 )

TYSON, Judge,

concurring in the result.

I agree with the majority’s decision that plaintiff Alchemy did not breach its lease merely by changing the radio station’s call letters. I write separately because the lease does not contain a latent ambiguity that would permit extrinsic evidence or testimony. I would construe the lease within its four corners.

The trial court based its interpretation upon the “four corners” of the lease, and found that the lease did not contain ambiguity. Accordingly, extrinsic evidence should not have been allowed to explain the terms of the unambiguous lease.

If a writing is unambiguous, “all prior and contemporaneous negotiations . . . are deemed merged in the written agreement .... [P]arol testimony ... 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.” Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953) (citations omitted). Trial courts that do not specifically find an ambiguity in a fully integrated writing, should refrain from smuggling extrinsic matters into evidence to explain the document.

I agree with the majority that “the Court should reject an interpretation of the terms of a lease which would be unreasonable or unequal if this can be done consistently with the tenor of the agreement.” I do not agree, however, that the lease, construed as a whole, is ambiguous. “An ambiguity exists where the language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties.” Glover v. First Union National Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993) (citing St. Paul Fire & Marine Ins. v. Freeman-White Assoc., 322 N.C. 77, 366 S.E.2d 480 (1988) (emphasis supplied)).

Here, the plain language of the lease allows the lessee and its assignees to use the premises to operate and maintain a radio station including transmitter and transmission towers “for any and all uses which are ancillary to the use of this property for . . . radio transmission purposes.” The parties remain bound to the terms of the lease regardless of how valuable the land containing the premises later becomes. Defendant landlord, as successor-in-interest to Adelphi Realty Company, purchased the land subject to the lease in this action. Mosely & Mosely Builders, Inc. v. Landin Ltd., 97 N.C. App. 511, 525, 389 S.E.2d 576, 584 (1990).

I concur in the result.