Sanderford v. Duplin Land Development, Inc., No. 7:2010cv00230 - Document 34 (E.D.N.C. 2012)
Court Description: ORDER granting defendant's 24 Motion for Summary Judgment. All other pending motions are deemed moot. The clerk is directed to close this case. Signed by Senior Judge Malcolm J. Howard on 2/14/12. (Lee, L.)
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Sanderford v. Duplin Land Development, Inc. Doc. 34 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA SOUTHERN DIVISION NO. 7:10-CV-230 H(2) JAMES K. SANDERFORD, Plaintiff, v. ORDER DUPLIN LAND DEVELOPMENT, INC. , Defendant. This matter is before the court on defendant's motions for judgment on the pleadings and for summary judgment. responses and replies have been filed, filings has expired. Appropriate and the time for further This matter is ripe for adjudication. BACKGROUND Defendant 1,400 acre Duplin is the owner and developer of River Landing, residential County, North development Carolina. and golf course Plaintiff a located in owns a small construction company and is from Wilmington, North Carolina. In the Fall MacFarland Rogerson of 2006, plaintiff's ("Mac Rogerson") neighbor, Robert approached plaintiff about real estate deals in River Landing, specifically about a section Dockets.Justia.com called family, the Bluffs. He also who owned defendant, told plaintiff about the Murphy and about his positive experience with the Murphys and defendant. Plaintiff and his wi attended an opening event for the Bluffs during the fall of 2006. Before the end of the event, plaintiff put a $5,000 deposit on Lot 60 in the Bluffs Agreement. ("the Lot lf ) and entered into a Lot Reservation Plaintiff was told he could not enter into a formal contract at the opening event because defendant was completing regulatory work necessary to legally sell lots in the Bluffs. In February 2007, Mac Rogerson and defendant's sales staff were informed during a sales meeting that environmental testing had revealed high levels of fecal coliform in the development. As a result, the sales staff was informed that defendant could not enter into any contracts to sell lots in the Bluffs. The sales staff was told to call the prospective purchasers and let them know defendant would remediate the issue as quickly as possible. Some time later, a second sales meeting was called at which time the staff was Agreements in place though fecal the acceptable levels. would naturally informed that could enter coliform leve those into with binding had not yet Lot Reservation contracts, even deteriorated to They were informed that the fecal coliform deteriorate over 2 time, and defendant would include an addendum would formally that an to the Standard disclose the fecal independent Purchase coliform environmental Agreement issue and provide firm consulting which would undertake additional sampling and testing of the lots located in the Bluffs. In March Purchase 2007, Agreement Mac for contained an Addendum coliform level was Rogerson Lot B, due 60 to which to delivered a The plaintiff. disclosed contaminated proposed (1) that mulch, (2) Lot agreement the fecal that the Report of the Clark Group indicated that the fecal coliform is naturally degrading and would not be a factor after the passage of time, and (3) that the property pending will of suitable the for residential development processes. The report was available for inspection and copying at the office of the defendant. completion be degradation Addendum B also provides, pertinent part: Furthermore, Purchaser acknowledges and agrees that no construction activities shall be undertaken on the Lot by Purchaser until the Clark Group, or other qualified consulting firm, undertakes additional sampling at the Property, and the [defendant] obtains a written report from the consultant indicating that results of that sampling confirm previously identified fecal coliform has degraded to an acceptable level ("Confirmatory Report"). At such time, Seller shall notify Purchaser that based on the Confirmatory Report, the Property is ready for construction. It is estimated that the Property will be in suitable condition no later than November I, 2007. If, the Seller does not receive the Confirmatory Report and notify Purchaser of the same 3 in by November I, 2007, then the Seller and Purchaser will agree to (i) terminate the Contract and return all monies deposited, thereby mutually releasing the Seller and Purchaser from all obligations; or (ii) to the extent available, Seller will allow the Purchaser to apply the full purchase price of the Lot to another lot within River Landing and will pay the same closing costs in such transaction as Seller paid at the closing of the original purchase of the Lot all as shown on the Settlement Statement for the closing on the Lot. *(iii) Seller will return all monies, including all closing cost[s] to purchaser. This provision shall survive the closing of the transaction contemplated herein. 1 Addendum B to Purchase Agreement [DE #1-2] . At the Agreement, time plaintiff received the proposed Lot Purchase he also received a HUD Property Report dated March 28, 2007, which contained numerous disclosures about the Bluffs and included a discussion of the high fecal coliform level. Plaintiff was concerned that future HUD statements would contain this language and thereby taint the value of was assured by Mac Rogerson that once deteriorated to acceptable levels, not contain this information. AprilS, 2007. 2007. The attorney Defendant was the the property. fecal He coliform had the future HUD reports would Plaintiff signed the agreement on The closing on the Lot occurred on September 7, closing Richard paid all occurred Burrows, through the defendant's plaintiff's closing mail. The closing long-time attorney. costs, including Subsection (iii) was added by plaintiff in plaintiff's own handwriting. 1 4 attorney's fees and eighteen months of interest and homeowners' dues, totaling $29,525.03. On or about October 31, ("the Notice Letter") 2007, defendant to plaintiff stating that defendant had received the confirmatory report. Plaintiff states he did not receive the Notice Letter until November 3, stated that the tter mailed a 2007. The letter North Carolina Division of Water Quality has found that "no additional monitoring is needed at this time and the matter can be considered closed." (Sanderford Aff. 15.) Plaintiff contends that the letter was not received timely and that appears it misrepresented key facts these contentions arise from and omitted others. the fact that the It Clark Group did not do the actual sampling from May to October 2007. Instead, Murphy Farm employees took the samples and sent them to the Clark Group for testing. Plaintiff finds this objectionable because defendant was owned by the same family who owned Murphy Farms. Plaintiff also notes received from the defendant Quality regarding coliform state level and in federal November 1, 2007. ("The most recent the one that, to ("the NCDWQ Letter"), groundwater at well the was time water 5 samples last are the above letter Water fecal applicable tested See NCDWQ Letter, Sanderford Aff. surface the North Carolina Division of matter standards according before 17, Ex. 3 compliant with established slightly standards and only monitoring standards. ") . ) groundwater above one well showed was This not mentioned in the Notice Letter plaintiff received. After receiving the October 31, plaintiff contends is untimely, 2007 Notice Letter which plaintiff was still concerned with whether the HUD reports would continue to show the fecal coliform He issue. revised HUD report contamination. called would provided, Rogerson who advised forthcoming be Plaintiff and would checked on this matter him show with a no Mac A new HUD report dated May 2007 was Rogerson several times. finally Mac but the newer report information about the fecal coliform. still contained the At that point, plaintiff contacted an attorney to begin efforts to get his money back. In the Fall contact of 2008, plaintiff's defendant via counsel letter. When made several there was attempts to no response, plaintiff filed suit against defendant in state court in February 2009 asserting claims for specific performance and, alternatively, Plaintiff rescission notes that at of the the time he Lot Purchase filed the Agreement. suit in state court he was unaware of the contents of the NCDWQ letter or the fact that the Clark Group had not collected the samples. On April 26, above-referenced 2010, state plaintiff court action 6 voluntarily without dismissed prejudice. the On November claims 18, for practices, plaintiff 2010, specific fraud, filed enforcement, the instant unfair and violation of the and action deceptive Interstate with trade Land Sales Full Disclosure Act (ILSFDA). COURT'S DISCUSSION I. Standard of Review Summary judgment is appropriate pursuant to Fed. R. Civ. P. 56 when no genuine issue of material fact exists and the moving Anderson v. party is entitled to judgment as a matter of law. Liberty Lobby, seeking Inc., summary U.S. 477 judgment 242, bears 247 The (1986). the initial party burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) Once the moving party has met party may not rest on the its burden, allegations or the non-moving denials in its pleading, Anderson, 477 U.S. at 248, but IImust come forward with 'specific facts showing trial. III Matsushi ta that Elec. there Indus. Corp., 475 U.S. 574, 587 (1986) is Co., a genuine Ltd. v. issue Zenith for Radio (quoting Fed. R. Civ. P. 56 (e)). As this court has stated, summary judgment is not a vehicle for the court to United States, resolve 837 F. disputed factual Supp. 123, 125 7 issues. (E.D.N.C. Faircloth 1993) v. Instead, a trial court reviewing a claim at the summary judgment stage should determine whether a genuine issue exists for trial. Anderson, 477 U.S. at 249. In making this determination, inferences drawn from favorable Inc., 369 the underlying 654, 655 (1962) court facts must in the view (per curiam). the light most United States v. to the non-moving party. U.S. the Diebold, Only disputes between the parties over facts that might affect the outcome of the case preclude 477 Anderson, properly at U.S. the 247-48. entry of summary Accordingly, the judgment. court must examine "both the materiality and the genuineness of the alleged fact issues" in ruling on this motion. Faircloth, 837 F. Supp. at 125. II. Analysis Plaintiff several ways argues and that defendant breached seeks specific enforcement the of contract the in contract. First, plaintiff argues that defendant did not provide plaintiff with notice of the Confirmatory Report on or before November 1, 2007, and that plaintiff is therefore entitled to the remedies described in Addendum B. contains a Neither Addendum B nor definition of the term "Notify." the contract Plaintiff argues that because notification was not received by November 1, the defendant breached the contract. 8 2007, Defendant argues that its notification Notice responsibility on October 2007. 31 1 was fulfilled Because upon mailing the parties inartfully 1 drafted addendum does not define "notice" in any way, construes the term notice to mean actual notice the court especially in l light of the fact that defendant drafted the addendum. under North essence Brooks in Carolina a contract 242 N.C. 1 law, 178 of (1955). \\ [t] ime sale is and ordinarily purchase. II Because Addendum the However, not of the Douglass v. B contains no "time is of the essence" clause and because Notice was received on November 3, provided, the 2007, court a mere two days finds that later than the contract defendant performed within a reasonable time, even though it did not comply with the "strict terms of the contract. (1840) . /I Taylor v. Longworth, 39 U. S. **2 Whether a party has performed within a reasonable time is ordinarily a mixed question of law and fact. the facts are simple and admitted, "reasonable Kimball 172, 1 time" is a as here, question of law. However, when what constitutes a J.B. Colt. 190 N.C. 169, 174, 129 S.E. 406, 409 (1925). Co. v. The court finds, as a matter of law, that defendant provided notice within a reasonable time. Furthermore, plaintiff has shown no prejudice from the delay in receipt of two days. Plaintiff also argues that defendant breached the contract because the Clark Group did not do the sampling on the property, 9 but rather defendant used employees of another company However, affiliated with defendant to do the sampling. at all relevant times the Clark Group was involved in monitoring and/or assessing the defendant While it status of the property. used employees of a sister is true that company to take the physical samples, the analysis of these samples was performed by the Clark Quality Group, indicated acceptable closed. and the North that and levels the that Carolina fecal the coliform matter Division had could of Water degraded be to considered The court finds no breach or misrepresentation in the use of another company for the taking of the sampling in light of the Clark Group's oversight of the process. Plaintiff also argues that defendant misrepresented in its October 31, Notice 2007 Conf irma tory Report. Letter that it had received a Plaintiff contends that the NCDWQ letter does not constitute a confirmatory report because it notes that "one monitoring standards.'1 (NCDWQ well showed Letter.) slightly However I a above review groundwater of the NCDWQ Letter reveals that the NCDWQ found the levels to be compliant with established standards. The letter concludes that no additional monitoring is needed and the matter can be considered closed. The NCSWQ letter I therefore, constitutes a satis tory Confirmatory Report indicating that ufecal coliform has degraded 10 to an acceptable level" as required by Addendum B. The court The court finds no misrepresentation on the part of defendant. acknowledges that according to the NCDWQ Letter, one monitoring well showed slightly above groundwater standards. However, this fact did not keep the NCDWQ from closing the matter, and plaintiff has brought forth no evidence that this well has any effect on plaintiff's ability to begin construction on the Lot. Furthermore, even if the court were to assume a material breach in the notice requirements of Addendum B, the court finds that Addendum provides, B "If, is the an unenforceable Seller does not Report and notify Purchaser of the contract. receive the arise, [DE #1-2].) the parties must agree I, 2007, (Addendum " In order for a remedy to on the remedy, thereby leaving open essential parts of the contract to future agreement. an "agreement to agree" is unenforceable. Lefever v. 198 N.C. App. 405,2009 WL 2177323, *6 (2009) Jackson v. settled that future Here, Nichols, a agreement 175 contract is N.C. App. leaving B Confirmatory same by November then the Seller and Purchaser will agree to . B to Purchase Agreement Addendum 196 nugatory and void for Taylor I (quoting County of (2005) material Such (lilt portions is open well for indefiniteness.")). the court would be required to supply material terms not contained within the Addendum itself, 11 such as reconveyance of the property to the seller. 692, 548 S.E.2d 499, 500 See Chappell v. Roth, 353 N.C. 690, (2001) (finding that a document that merely expresses the intent and desires of the parties, than their agreement, rather and which leaves no means to settle the unresolved terms, is not enforceable as a contract) . Finding no breach and no misrepresentation on the part of defendant as well as an unenforceable contract plaintiff's claims for specific performance, fraud, addendum, unfair and deceptive trade practices, and ILFSDA violations are dismissed. CONCLUSION For the judgment foregoing reasons is granted I [DE #24]. defendant's motion for summary All other pending motions are deemed moot. The clerk is directed to close this case. This I" of February 2012. Malcolm s District Judge At Greenville, NC #26 12
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