Price v. Horn , 30 N.C. App. 10 ( 1976 )

226 S.E.2d 165 (1976) 30 N.C. App. 10

Mrs. Mary Sue PRICE, Administratrix d/b/n/c/t/a of the Estate of Basil C. Horn
v.
Sevil HORN and Nell Horn.

No. 7529SC852.

Court of Appeals of North Carolina.

July 7, 1976. Certiorari Denied August 24, 1976.

Hamrick, Bowen & Nanney by Fred D. Hamrick, Jr., Rutherfordton, for plaintiff-appellee.

Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for defendant-appellants.

Certiorari Denied by Supreme Court August 24, 1976.

MORRIS, Judge.

Defendants, maintaining that the trial court erred in granting plaintiff's motion for summary judgment, essentially contend that plaintiff Mary Sue Price, in failing to convey to defendant Sevil Horn the 14-acre tract surveyed off by Sevil Horn, breached a contractual condition precedent, relieving defendant Sevil Horn of any liability and accountability for his nonpayment of certain extra tax obligations charged against the decedent's estate. We disagree.

The consent judgment is a contractual agreement and "[i]ts meaning is to be gathered from the terms used therein, and the judgment should not be extended beyond the clear import of such terms. . . ." 47 Am.Jur.2d, Judgments, § 1085, p. 142. Also see: 47 Am.Jur.2d, Judgments, § 1082; 5 Strong, N.C. Index 2d, Judgments, §§ 8, 10; Sawyer v. Sawyer, 4 N.C.App. 594, 167 S.E.2d 471 (1969). However, to interpret the nature and import of the consent judgment more precisely, courts are not bound by the "four corners" of the instrument itself. The agreement, usually reflecting the intricate course of events surrounding the particular litigation, also should ". . . be interpreted in the light of the controversy and the purposes intended to be accomplished by it." 5 Strong, N.C.Index 2d, Judgments, § 10, p. 22.

We have, therefore, reviewed the operative provisions of this consent judgment in terms of contractual analysis and construction, and we cannot find any condition precedent to defendant Sevil Horn's personal responsibility for the interest and penalty payments assessed against the decedent's estate. To have recognized a condition precedent would have required liberal construction and the broadest of critical readings and, as noted by Judge Parker in Financial Services v. Capitol Funds, 23 N.C. App. 377, 386, 209 S.E.2d 423, 429 (1974), aff'd 288 N.C. 122, 217 S.E.2d 551 (1975), "[c]onditions precedent are not favored in the law and provisions of a contract will not be construed as conditions precedent in the absence of language plainly requiring such construction." Neither the actual terms of this consent judgment nor the overall context indicates any pre-condition to defendant's duty to pay the tax obligations, and we are not prepared to supply so important a term in the absence of at least a modicum of plain and unequivocal language indicating that such a condition precedent was intended. We hold, therefore, defendants' position on this question to be without merit.

Defendants also argue that the trial court, by improperly disposing of the case by summary judgment, denied them the right to a trial on the issues raised in their counterclaim. We, again, find no merit to this contention.

Defendants failed to present any documentation or evidence in opposition to plaintiff's motions. ". . . [A]n adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." G.S. 1A-1, Rule 56(e); also see Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970). Our study of the record results in the conclusion that the entry of summary judgment for plaintiff was appropriate under all the circumstances of this case. It should be noted that defendants' claim for $25,000 damages was not disposed of in the trial court's entry of judgment, and defendants' cause of action for money damages has not been prejudiced or resolved. On the other hand, the court-ordered survey of a 14-acre tract was not improper and merely served to expedite the resolution of the determination of what land plaintiff was obligated to convey to defendants under the consent judgment, the terms of which, as to this land, were so vague that a court-ordered survey would be, in all probability, the only means of resolving the interpretation of the phrase "To Be Surveyed". See G.S. 1A-1, Rule 70. Cf: Elliott v. Burton, 19 N.C.App. 291, 198 S.E.2d 489 (1973). Plaintiff has, at all times, admitted that she is obligated to convey to defendant 14 acres of land. Once the trial court determined that there was no genuine issue of material fact with respect to defendant Sevil Horn's duties under the consent judgment, it simply and properly went forward to require plaintiff's conveyance of a 14-acre tract and further provided that, pursuant to the consent judgment, the administratrix, acting as commissioner, could sell the property to satisfy the defendant Sevil Horn's debt due to the respective governmental revenue agencies.

Affirmed.

VAUGHN and CLARK, JJ., concur.