Wolfe v. Villines , 169 N.C. App. 483 ( 2005 )

HUNTER, Judge.

Aliene Villines, Mildred Jefferies, James William Currie, Inez Corbett, and Ozie M. Currie (“defendants”) appeal from an order entered 11 December 2003 granting partial summary judgment to Kenneth W. Wolfe (“plaintiff’) in an action for specific performance of a land sale agreement. Defendants raise two assignments of error, contending there were genuine issues of material fact as to: (1) whether the description of the property in the land sale agreement was sufficient to satisfy the statute of frauds, and (2) whether the land sale agreement was terminated due to plaintiffs failure to complete the agreement’s requirements prior to the closing date. As we find there was a material issue of fact as to the description of the property, we reverse the grant of summary judgment.

On 6 December 2001, plaintiff and defendants entered into an Offer to Purchase and Contract (“Offer”) a plot of land belonging to defendants that was adjacent to plaintiff’s property. The Offer described the plot to be purchased as “+ or - 25ac to be determined by a survey for property behind Mr. Wolfe’s Property, to run to the first field[,]” and stated that it was a portion of the property listed in tax map 21, Lot 23, in Person County. The Offer did not specify who was responsible for obtaining the survey, but did provide that the buyer would pay for the cost. The Offer stated that the purchase price for the property was $2,200.00 per acre and that the closing should take place on or before 31 January 2002, and was signed by all parties.

A surveyor, Neil Hamlett (“Hamlett”) was hired to survey the property by Tommy Bowes (“Bowes”), the real estate agent for both parties. Hamlett discovered that a house existed on the proposed plot and was instructed by Bowes to cut out the portion of the property containing the house from the surveyed land. Due to inclement weather, Hamlett did not return to complete the survey until March 2002. He was informed by defendants at that time to not complete the survey, as the time for closing had expired. Hamlett reported that three possible tracts could be surveyed in the given area, of 15.9 acres, 16.9 acres, or 20.8 acres, respectively.

Plaintiff filed a complaint seeking specific performance of the contract on 9 July 2003, alleging that defendants had repudiated the Offer by refusing to allow the land to be surveyed. Defendants counterclaimed that the Offer was unenforceable as it violated the statute of frauds and the required survey was not completed before closing. Both parties moved for summary judgment. On 11 December 2003, the trial court entered an order denying defendants’ motion and partially granting plaintiffs motion for summary judgment, ordering specific performance of the contract. Defendants appeal from this order.

I.

We first address whether the appeal from the trial court’s 11 December 2003 order entitled partial summary judgment is timely. Ordinarily, a partial summary judgment, because it does not completely dispose of the case, is interlocutory, and cannot be immediately appealed. See Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). Here however, the trial court’s order fully disposed of the case by ordering specific performance of the land contract, and retained jurisdiction only in the event that good title to the property in question could not be conveyed. Indeed, plaintiff, the appellee in this case, notes in his brief that “it is apparent . . . that the order is, in fact, not a partial summary judgment because no further parties or claims are unresolved.” (Emphasis omitted.) Despite its title of partial summary judgment, the order appears to not be interlocutory, as it resolves all claims raised to the court, and review of the matter would therefore be neither fragmentary nor premature.

The dissent contends that a question remains, however, as to whether the order is final or interlocutory, as the trial court did not certify this appeal pursuant to N.C.R. Civ. R 54(b) and did retain jurisdiction for a limited purpose. We therefore, in the interest of judicial economy, and to prevent manifest injustice to both parties as a complete and final remedy has been ordered by the trial court, elect pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to treat plaintiff’s appeal as a petition for a writ of certiorari and grant the petition. See N.C.R. App. P. 2, Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 79, 404 S.E.2d 176, 177 (1991).

II.

Defendants contend that the trial court erred in finding there was no genuine issue of material fact as to whether the legal description of the property in the Offer was insufficient to meet the statute of frauds.¹ We agree.

We first note the appropriate standard of review. Summary judgment is properly granted “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003).

Our statute of frauds requires that contracts to convey land “shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” N.C. Gen. Stat. § 22-2 (2003). The Supreme Court of North Carolina has held that:

A valid contract to convey land, therefore, must contain expressly or by necessary implication all the essential features of an agreement to sell, one of which is a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source designated therein.

Kidd v. Early, 289 N.C. 343, 353, 222 S.E.2d 392, 400 (1976).

An agreement for the sale of land violates the statute of frauds as a matter of law if it is patently ambiguous, that is, if “it leaves the subject of the contract, the land, in a state of absolute uncertainty and refers to nothing extrinsic by which the land might be identified with certainty.” House v. Stokes, 66 N.C. App. 636, 638, 311 S.E.2d 671, 673 (1984). However a description is latently ambiguous if “it is insufficient, by itself, to identify the land, but refers to something external by which identification might be made.” Id. at 638, 311 S.E.2d at 674.

In Kidd v. Early, the Court found that the inclusion of a requirement of a survey to determine the precise boundaries of a parcel, in a contract for purchase of a portion of land from a larger tract, saved the description from patent ambiguity. Kidd, 289 N.C. at 356, 222 S.E.2d at 402. Although the option in Kidd required the seller to furnish the survey, the Court in Kidd relied on cases from a number of jurisdictions which also permitted the buyer to control the survey. Id. at 354-56, 222 S.E.2d at 401-02.

Here, the description in the Offer identified the parcel generally through a tax map designation and as the Lessie Bradsher Estate located behind plaintiffs property. Although the tract identified encompassed more than twenty-five acres, the description further specified that the exact amount of + or - 25 acres would be determined by a survey of the property. Thus, as the contract provided an extrinsic means for identification of the precise property to be sold, we find the description was latently, rather than patently, ambiguous and therefore did not violate the statute of frauds as a matter of law.

A latently ambiguous description requires admission of extrinsic evidence to explain or refute the identification of the land in question, and thus creates a potential issue of material fact which must be determined before the trial court can conclude as a matter of law that the statute of frauds has been met. See House, 66 N.C. App. at 639, 311 S.E.2d at 674. Here, Hamlett’s affidavit showed the surveyor was directed by Bowes to discard a portion of the parcel after buildings were discovered upon it, and further directed to move the northern line of the property. These directions resulted in the production of three potential surveys of the property to be conveyed under the contract. Unlike in Byrd v. Freeman, 252 N.C. 724, 727-28, 114 S.E.2d 715, 718-19 (1960), where two different survey results were produced but the evidence showed the parties mutually agreed on one of the surveys, here, a material issue of fact remained as to which of the proposed descriptions, if any, reflected the true intention of the parties. Although we note that the purpose of the statute of frauds is to “guard against fraudulent claims supported by perjured testimony” rather than to allow “defendants to evade an obligation based on a contract fairly and admittedly made[,]” House, 66 N.C. App. at 641, 311 S.E.2d at 675, sufficient extrinsic evidence must be adduced to identify the parcel of land intended to be conveyed by the parties and remove the latent ambiguity in the contractual description for it to be enforceable. As there exists an issue of material fact as to both the precise parcel to be conveyed, as a result of the discovery of the buildings, and as to whether the contract is void for latent ambiguity in the description, we therefore reverse the trial court’s grant of summary judgment.

The dissent contends that although the evidence presented to the trial court indicated the surveyor had determined three possible tracts of land could be drawn from the general land description, the trial court properly acted in equity to reform the contract and order defendants to convey the smallest of the three parcels. Such actions in equity by the trial court at the summary judgment stage of adjudication are not permissible when issues of material fact exist. In Dettor v. BHI Property Co., 324 N.C. 518, 379 S.E.2d 851 (1989), our Supreme Court considered another disputed land contract. In Dettor, a contract for the sale of land included a description of the property to be sold as “ ‘± 12 acres and highlighted in yellow on Exhibit A attached hereto’ ” and further that “ ‘[t]he property shall be surveyed by a North Carolina Registered Surveyor at the expense of the Sellers .... Property is to have approximately 12 acres as shown on “Exhibit A” attached hereto.’ ” Id. at 519-20, 379 S.E.2d at 852. The survey conducted revealed that the property contained 12.365 acres, however, after closing, a mistake in the calculations was discovered which showed the property actually contained 17.147 acres. Id. at 520, 379 S.E.2d at 852. An action was brought for reformation of the deed and for specific performance to pay for the excess acreage. Both parties moved for summary judgment. Id. at 520-21, 379 S.E.2d at 852. The trial court granted partial summary judgment on the grounds the contract was consummated under a mutual mistake of fact,² but declined to award specific performance as inequitable. Id. at 521, 379 S.E.2d at 852. The trial court instead created a unique remedy, described as a “reformation ‘in effect,’ ” which appointed “a triumvirate of commissioners to designate 4.782 acres to be carved out of the disputed tract and reconveyed to plaintiffs.” Id. The Supreme Court overturned a decision by this Court affirming the trial court, on the grounds that when an issue of material fact as to the acreage intended to be transferred by the parties existed, the question must be resolved by the fact finder, and a grant of summary judgment was inappropriate. Dettor, 324 N.C. at 522-23, 379 S.E.2d at 853.

Similarly here, a question of material fact was created by the discovery of unknown improvements on the property, resulting in a latent ambiguity in the land description. The trial court improperly concluded that no material issue of fact existed, yet selected one of three surveys presented to the court as the remedy. As a question of material fact existed, we find the trial court erred in reforming the contract at the summary judgment stage.

III.

Defendants next contend there was a genuine issue of material fact as to whether the Offer was terminated due to plaintiff’s failure to complete the Offer’s requirements, including a survey of the parcel of property, prior to the closing date. We disagree.

In Taylor v. Bailey, 34 N.C. App. 290, 237 S.E.2d 918 (1977), this Court noted that when the only reference to time in the contract was as to a proposed closing date, and the conditions included a survey and title opinion of the property, time was not of essence to the agreement and upheld the finding that the failure to settle by the stated date did not vitiate the contract. See Taylor, 34 N.C. App. at 293-94, 237 S.E.2d at 920. In Taylor, a surveyor was hired in a timely fashion, but a problem with the title was discovered which delayed closing. Id. at 294, 237 S.E.2d at 920. The Court affirmed the order of specific performance of the contract however, as there was no evidence that “ ‘plaintiff tarried or delayed: . . and . . . stood ready, willing and able to complete the terms and conditions of said contract[.]’ ” Id. at 294-95, 237 S.E.2d at 921 (citation omitted).

Here, the Offer, like in Taylor, stated closing should occur “on or before 1-31-2002,” but included the condition of a survey paid for by plaintiff. As time was not of the essence in the contract, the failure to complete the required survey and close by 31 January 2002 does not vitiate the contract. The question rather is one of the reasonableness of the time to complete the contract. See Fletcher v. Jones, 314 N.C. 389, 393, 333 S.E.2d 731, 734 (1985). “What is a ‘reasonable time’ in which delivery must be made is generally a mixed question of law and fact, and, therefore, for the jury, but when the facts are simple and admitted, and only one inference can be drawn, it is a question of law.” Colt v. Kimball, 190 N.C. 169, 174, 129 S.E. 406, 409 (1925).

Evidence presented in the affidavits of Bowes and Hamlett show that the surveyor was hired in a timely fashion in December 2001 by the agent of both parties, that a problem arose with the survey when the presence of a building was discovered within the given parameters, and that as the Offer specified the contract was for land only, the surveyor was instructed by the agent to return to resurvey the property without the building. Further, Hamlett states in his corrected affidavit on 17 November 2003 that he was delayed from returning to complete the survey until March 2002 as a result of the changes, and was told at that time not to complete the survey by defendants. As there is no evidence that plaintiff “delayed or tarried” in completion of the contract, or other disputed material fact, the trial court properly found the delay of a few weeks in completion of the survey was not unreasonable as a matter of law.

As we find that a material issue of fact exists as to the land description, we therefore reverse the trial court’s grant of summary judgment.

Reversed.

Judge LEVINSON concurs. Judge TYSON dissents in a separate opinion.

1 . Defendants fail to provide a statement of the grounds for appellate review, as required by N.C.R. App. P. 28(b)(4), as to whether this matter appealed constitutes a final judgment which is properly before this Court. Violation of this rule subjects defendants’ appeal to dismissal. See State v. Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780, 780 (1982). However, as noted supra, we deem it appropriate to consider this appeal on its merits pursuant to N.C.R. App. P. 2.

2 . We note that the order appealed in Dettor was also entitled Partial Summary Judgment, but was considered by both this Court and our Supreme Court.