Harrington v. Perry , 103 N.C. App. 376 ( 1991 )

406 S.E.2d 1 (1991) 103 N.C. App. 376

Rebecca Smith HARRINGTON
v.
Sherrill R. PERRY.

No. 9015DC985.

Court of Appeals of North Carolina.

July 2, 1991.

Abernathy, Roberson & Huffman by G. Wayne Abernathy, Graham, for plaintiff-appellee.

Edmundson & Burnette by R. Gene Edmundson and J. Thomas Burnette, Oxford, for defendant-appellant.

WYNN, Judge.

In 1978, the plaintiff and defendant executed a separation agreement which contained the following language:

Husband shall pay to wife one-fourth (¼) of any net recovery to him after attorney's fees from any monies received by him as a result of potential malpractice claims arising from the treatment of his leg.

Defendant's medical malpractice claim was settled in April, 1988 for $50,000.00. From this settlement, defendant received $30,000.00 after payment of $20,000.00 in attorney's fees. Following the defendant's refusal to pay her under the above provision, plaintiff instituted this action. The defendant answered admitting the execution of the separation agreement, but, averring that his net recovery from the settlement of the malpractice action had resulted in a negative balance, thereby entitling the plaintiff to no recovery.

Thereafter, plaintiff moved for summary judgment which was granted by the trial court. From that order, defendant appealed.

I

The standard of review for a motion for summary judgment requires that all pleadings, affidavits, answers to interrogatories and other materials offered be viewed in the light most favorable to the party against whom summary judgment is sought. Durham v. Vine, 40 N.C.App. 564, 566, 253 S.E.2d 316, 318 (1979). Summary judgment is properly granted where there is no genuine issue of material fact to be decided and the movant is entitled to a judgment as a matter of law. Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101 (1970).

The defendant contends that summary judgment was erroneously granted in this case for two reasons: (1) There existed a genuine issue of material fact concerning the intent of the parties as to the meaning of the phrase "net recovery after attorney's fees" and (2) Plaintiff did not forecast sufficient evidence to have been entitled to judgment as a matter of law.

The defendant argues that the phrase "net recovery after attorney's fees" is ambiguous. As such, he maintains that the trial court should have found that there existed a genuine issue of fact as to what the parties intended by the use of that phrase. "Questions relating to the construction and effect of separation agreements between a husband and wife are ordinarily determined by the same rules which govern the interpretation of contracts generally. Whenever a court is called upon to interpret a contract its primary purpose is to ascertain the intentions of the parties at the moment of its execution." Lane v. Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624 (1973) (citations omitted). However, "[w]here a contract is unambiguous, its construction is a matter of law for the court to determine." Bicycle Transit Authority, Inc. v. Bell, 314 N.C. 219, 333 S.E.2d 299 (1985).

The separation agreement here specifically sets forth that the plaintiff would recover one-fourth of the "net recovery after attorney's fee". We find that phrase to be quite clear, despite the contention of the defendant that the phrase by import meant that other expenses must be deducted to reach the net recovery. Generally, such other out-of-pocket expenses would be deducted from the gross proceeds as part of the determination of the net recovery. But where as here, the parties have expressly set out the deductible item from the gross proceeds, there is no further room for interpretation of the intent of the parties. Since this provision is unambiguous, its construction is a matter of law. It follows that the trial court properly found that there were no genuine issues of fact in this case.

Defendant also contends that even if the facts are undisputed, the trial court erred by concluding that plaintiff was entitled to summary judgment as a matter of law. See, Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C.App. 497, 296 S.E.2d 843 (1982), disc, review denied, 307 N.C. 576, 299 S.E.2d 646 (1983). He argues that plaintiff's evidence which consisted of the pleadings and the separation agreement was insufficient, especially since defendant testified as to the meaning of the separation agreement clause in question.

In an action for breach of contract, plaintiff must prove that a contract existed, the specific provisions breached, the facts constituting the breach and the amount of damages resulting to plaintiff from such breach. Cantrell v. Woodhill Enters., Inc., 273 N.C. 490, 497, 160 S.E.2d 476, 481 (1968) (citations omitted). In the case at bar, plaintiff's complaint alleges and defendant's answer admits the execution of the separation agreement which contained the provision that the defendant would pay the plaintiff one-fourth of the net recovery after attorney's fees. Defendant provided plaintiff with a copy of the release of a malpractice case which states that the case was settled for $50,000.00; copies of the checks show that defendant paid $20,000.00 in attorney's fees. Further, plaintiff's complaint alleges a claim for damages in the amount of $7,500.00 which represented one-fourth of the $30,000.00 received by the defendant. Clearly, plaintiff's evidence was sufficient to show a breach of contract. This assignment of error is without merit.

Defendant's next argument that the trial court should have made findings of facts to support the summary judgment is without merit. In fact, it is well-established that such findings are inadvisable, and if the trial court did make such findings, they would be disregarded on appeal. Hyde Ins. Agency v. Dixie Leasing Corp., 26 N.C.App. 138, 215 S.E.2d 162 (1975).

Having concluded that summary judgment was properly granted, we need not address the merits of defendant's other assignment of error.

For the foregoing reasons, the decision of the trial judge is

Affirmed.

COZORT and ORR, JJ., concur.