Peoples Serv. Drug Stores v. MAYFAIR, NV

274 S.E.2d 365 (1981)

PEOPLES SERVICE DRUG STORES, INCORPORATED
v.
MAYFAIR, N. V. (MICORA, N. V.), KING INVESTORS, LTD. and Consolidated Theatres, Inc.

No. 8017SC450.

Court of Appeals of North Carolina.

February 3, 1981.

Hudson, Petree, Stockton, Stockton & Robinson by Dudley Humphrey and Jackson N. Steele, Winston-Salem, for plaintiff-appellant.

Midgette, Page & Higgins by Keith D. Lembo, Chapel Hill, for defendant-appellees Mayfair, N. V. (Micora, N. V.) and King Investors, Ltd.

Berry, Bledsoe, Hogewood & Edwards by Mark B. Edwards and John V. McIntosh, Charlotte, for defendant-appellees Consolidated Theatres, Inc.

MORRIS, Chief Judge.

Initially, we note that plaintiff's assignments of error, which are noted in the record, fail to call to the court's attention portions of the record that form the basis of its contentions. Rule 10(c), N.C.Rules App. Proc., requires that all assignments of error should be followed by a listing of the exceptions on which they are based, and that these exceptions should be identified by the pages of the record at which they appear. Exceptions not listed properly should be deemed abandoned. No exceptions appear in the body of this record. Furthermore, only plaintiff's first assignment of error contains an exception with a page reference. We are aware that the plaintiff's assignments of error, except the first, refer to findings of fact which plaintiff contends the court erroneously failed to make. However, plaintiff should have excepted to the court's findings of fact and placed those which it contends the court should have found in the record. As the record stands, there is nothing contained therein to call our notice to plaintiff's contentions.

Under the authority of Rule 2, N.C. Rules of App.Proc., we may suspend the requirements of the Rules of Appellate Procedure to prevent manifest injustice to a party, or to expedite decision in the public interest. We deem it appropriate to so suspend the rules in this instance. By doing so we do not intend to encourage in the bar a laxity in compliance with the Rules of Appellate Procedure.

Plaintiff maintains that there was uncontradicted evidence before the court which conclusively established that by striking out the legend on the site plan contemporaneously with the execution of the lease, the landlord, Mr. Longiotti, intended to grant to plaintiff the unrestricted right to approve or disapprove of any expansion of the shopping center. This would apply particularly to any expansion into the common areas as shown by the site plan. Plaintiff contends that the court was obligated to find these facts because of the testimony of Mr. Kane and Mr. Longiotti as to their intent when entering into this agreement, as evidenced by their deletion of the site plan.

Apparently, the trial court's reason for excluding the evidence of the intent of the parties to the lease from its findings of fact was that it concluded that the lease embodied all of the agreements between the parties with respect to the premises.

Plaintiff contends that the lease and site plan contain ambiguities as to its rights with respect to future expansion. Therefore, the court should have considered the evidence of the parties' intent and found facts consistent with that evidence. Plaintiff argues that this evidence conclusively establishes the rights of the parties to the lease which are in controversy. Plaintiff asserts that the court erred by not making findings of fact based on the parol evidence. Therefore, the court's conclusions of law should be reversed.

North Carolina adheres to the parol evidence rule. This rule encourages stability in written contracts. The parol evidence rule is applicable to leases in much the same manner as it is to contracts. See Stewart v. Thrower, 212 N.C. 541, 193 S.E. 701 (1937); Furniture Leasing v. Horne, 29 N.C.App. 400, 224 S.E.2d 305 (1976). In general, the parol evidence rule prohibits the admission of evidence to vary, add to, or contradict a written instrument. See Robbins v. Trading Post, 253 N.C. 474, 117 S.E.2d 438 (1960); Gas Co. v. Day, 249 N.C. 482, 106 S.E.2d 678 (1959). Plaintiff contends that in spite of the parol evidence rule the oral evidence of the parties' intentions should have been considered by the court in this instance, because the written lease was ambiguous as to the rights of the parties with regard to the pertinent issue.

[W]here 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 these elements are deemed merged in the written agreement. And the rule is that, in the absence of fraud or mistake or allegations 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. (Citations omitted and emphasis added.)

Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953).

We do not think there is any ambiguity in this lease, with regard to the issue of whether the landlord must get plaintiff's consent to alter the configuration of the parking lot in order to accommodate the proposed theatre expansion. The last two paragraphs of paragraph 21 of plaintiff's form lease state:

Landlord agrees and covenants that during the term of this lease it will retain the size of, and (at its expense) maintain in good order and repair, and free from ice, snow and debris, the common areas (parking areas, service areas, sidewalks, circulation areas, and means of ingress and egress) in the Shopping Center, as shown on Exhibit A, and will provide adequate lighting (including the electricity therefor) for said common areas.

In the event of future development or expansion of the Shopping Center, Landlord agrees that it will maintain the same ratio of parking space to leasable area as is provided herein.

The plain import of these passages is that the landlord may alter the configuration of the parking areas of the shopping center, but in so doing it must maintain the original "size" of the parking lot. It must retain the "size" of the parking areas by maintaining the proper ratio of parking space to leasable area. The lease is silent with regard to whether the landlord must have the plaintiff's consent before making any changes. Therefore, such consent is not a prerequisite to alterations the landlord might make in the common areas. The landlord did not agree to retain the shape or configuration of the parking areas, but only their "size". The second paragraph of the quoted terms contemplates the future expansion of the shopping center, but it only requires that the landlord maintain the proper parking ratio in making the changes. Plaintiff drafted this form lease, and had it wanted to possess the power to consent to future alterations in the parking areas it could have included such a power in the lease.

Furthermore, the lease contains a merger clause. Paragraph 30 section (g) states:

This instrument embodies all the agreements between the parties hereto in respect to the premises hereby leased, and no oral agreements or written correspondence shall be held to affect the provisions hereof. All subsequent changes and modifications to be valid shall be by written instrument executed by Landlord and Tenant.

This clause is evidence of the intention of the parties to the lease that it constitute their entire agreement, and that conflicting oral agreements should not be allowed to vary its terms.

Fortunately, the court heard the testimony of Mr. Kane and Mr. Longiotti so that all of the oral evidence which plaintiff proposes to offer as the basis for its additional findings of fact is known. This evidence does vary, add to, or contradict the written instrument. The lease contemplates that in future expansions of the shopping center the landlord will maintain the established parking ratio. It says nothing about getting the tenant's consent for future alterations. The oral evidence which plaintiff relies upon is to the effect that the tenant's consent is a prerequisite to any future expansion. Therefore, we hold that the court did not err in disregarding the oral evidence of the intentions of the original parties to the lease. Consequently, the court's failure to find the facts as proposed by plaintiff was not error.

Additionally, plaintiff argues that paragraph 21 of the lease in conjunction with the parol statements of the original parties thereto gives it an easement in the common areas of the shopping center. As a result, it has a veto power over future expansion. Plaintiff cites no North Carolina authority for this proposition. The lease simply states that, "Landlord agrees and covenants ... it will retain the size of ... the common areas (parking areas, service areas, sidewalks, circulation areas, and means of ingress and egress) in the Shopping Center, as shown on Exhibit A..." This language by itself is insufficient to give plaintiff a negative easement in the common areas. The language merely indicates that the landlord agreed to maintain the "size" of the common areas. The major part of plaintiff's argument rests on the oral statements of Mr. Longiotti as to the parties' intentions.

In North Carolina a negative easement comes within the statute of frauds, and it cannot be proved by parol evidence. Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892 (1954); Davis v. Robinson, 189 N.C. 589, 127 S.E. 697 (1925); Simmons v. Morton, 1 N.C. App. 308, 161 S.E.2d 222 (1968). Therefore, in the instant case the parol testimony of the original parties to the lease is irrelevant to the determination of whether the lease granted plaintiff a negative easement in the common areas of the shopping center.

The lease by itself does not give plaintiff a negative easement in the common areas of the shopping center.

The proposed theatre expansion and additions to the parking lot are not in violation of the terms of this lease. Defendant proposes to maintain the size of the parking lot in conformity with the provisions of the lease.

The judgment of the trial court is

Affirmed.

WEBB and HARRY C. MARTIN, JJ., concur.