Moore v. G & I VI Forest Hills GP, LLC
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal a uthority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e . NO. COA13-3 NORTH CAROLINA COURT OF APPEALS Filed: 5 November 2013 LORI MCKINNON MOORE and MATTHEW SCOTT MCKINNON, Plaintiffs, v. New Hanover County No. 11 CVS 3263 G&I VI FOREST HILLS GP, LLC, G&I VI FOREST HILLS, LP, and BELL PARTNERS, INC., Defendants. Appeal by plaintiffs from orders entered 20 August 2012 by Judge W. Allen Cobb, Jr., in New Hanover County Superior Court. Heard in the Court of Appeals 14 August 2013. The Law Offices of F. Bryan Brice, Quinn, for plaintiffs-appellants. Jr., by Matthew D. McAngus Goudelock & Courie, PLLC, by Jeffrey D. Keister and Caitlin A. Carson, for defendants-appellees. BRYANT, Judge. Where there is no mutual assent to the additional terms of a contract between parties, no contract has been formed as to those terms. Therefore, the trial court s order granting a -2motion to enforce the settlement agreement is reversed. Likewise, the order granting summary judgment based thereon is also reversed. On 1 August 2008, plaintiffs Lori McKinnon Moore and Matthew Scott McKinnon entered into a lease for an apartment located in Wilmington, North Carolina. The apartment was owned by defendant G&I Forest Hills, L.P., and managed by defendant Bell Partners, Inc. (collectively defendants ). That same month, plaintiffs reported a foul smell to defendants and by September plaintiffs reported experiencing numerous physical symptoms including sore throat, headaches, and gastrointestinal pain. On 2 November 2008, plaintiffs noticed black mold growing on the HVAC vents defendants. in parts of the apartment and contacted Three days later, defendants sent two men to clean the HVAC vents and perform mold remediation. After plaintiffs requested that defendants hire cleaners certified to handle mold remediation company. and cleaning, defendants hired the ASAP cleaning On 10 November 2008, ASAP performed mold remediation and cleaning. That same month, defendants offered plaintiffs a renewal lease for the apartment. The next month, December 2008, -3plaintiffs signed the new lease agreement for the apartment, contracting to lease from 18 February 2009 to 17 April 2010. In January 2009, plaintiffs reported water damage and black mold to defendants. Over the next few weeks, defendants sent several different contractors to the apartment to examine and repair the water damage and mold. On 22 January 2009, plaintiffs contacted the New Hanover County Health Department regarding the ongoing problem in the apartment; that same day, Air Quality Analytical, Inc. performed air quality testing at the apartment. Air Quality Analytical reported the apartment was not fit for occupation due to the presence of toxic mold. At the end of January, plaintiffs requested that defendants place them in alternate housing. On 29 community January manager 2009, of plaintiffs Forest Hills met with Rebecca Apartments, and Lynn, Wende Marshburn-Smith, regional vice president of Bell Partners, to discuss the issues with the apartment. In early February 2009, Lynn orally offered plaintiffs a settlement in the amount of $3,944 for both plaintiffs. 2009, plaintiff Lori Settlement Agreement defendants settlement Shortly thereafter, on 11 February Moore to hand-delivered defendants. offer as not The a a letter letter mutually titled rejected satisfactory -4amount and detailed plaintiffs injuries as a result of the mold stating [w]e are willing to sign the waiver you requested but need fair compensation for our expenses . . . . The final paragraph of the letter stated [i]t is our hope that we can come to a settlement agreement with regards to the amount of settlement and avoid litigation . . . . Our total amount of settlement requested is $10,657.00. from you soon. We look forward to hearing Plaintiffs letter did not contain any terms of waiver. The following day, plaintiff Lori Moore sent an email to Lynn stating that one of the items quoted in the settlement letter was too high and the total amount needed to be reduced accordingly. testing, was The item $400 in less question, than a bill anticipated, for air quality decreasing the settlement amount sought by plaintiffs from $10,657 to $10,257. Lynn then Partners discussed and this confirmed offer with defendants the would management accept of Bell plaintiffs settlement offer of $10,257. Defendants attorney drafted a Settlement Agreement and Mutual Release, which contained a release of claims and confidentiality clause, and delivered it to plaintiff Lori Moore on 16 February 2009. The next day, plaintiffs moved out of the -5apartment. On 2 March 2009, defendants called plaintiffs to inquire as to the settlement agreement, and plaintiffs responded they had not made up their mind yet. A letter dated 9 March 2009 was sent to defendants advising them that the firm of Mako & Associates was representing plaintiffs. Notwithstanding the letter of legal representation, defendants counsel sent a letter dated 30 March 2009 enclosing a settlement check in the amount of $10,257.00 as well as another copy of the Settlement Agreement and Mutual Release. The letter was sent to plaintiff Lori Moore, but not her attorney, and did not otherwise acknowledge that plaintiff was represented by counsel.1 contents over to their Plaintiffs turned the letter and its counsel and, through their counsel, returned the check to defendants. Plaintiffs filed suit against defendants on 1 August 2011.2 On 1 1 May 2012, defendants filed a motion to enforce the Counsel for defendants, in a sworn affidavit dated 28 July 2012, denied receipt of the Mako & Associates letter during the month of March 2009, and asserted he had no knowledge of plaintiffs legal representation at the time the letter dated 1 April was drafted and sent. 2 Plaintiffs complaint alleged breach of contract, violation of the North Carolina Residential Rental Agreements Act, breach of the Implied Warranty of Habitability, negligence, unfair and deceptive trade practices, negligent infliction of emotional distress, and, to be pled in the alternative to negligent infliction of emotional distress, negligent misrepresentation. -6settlement agreement and a motion for summary judgment. On 20 August 2012, Judge W. Allen Cobb, Jr., in New Hanover County Superior Court granted both of defendants motions. Plaintiffs appeal. ___________________________ On appeal, plaintiffs argue that the trial court erred in granting defendants (I) motion to enforce the settlement agreement and (II) motion for summary judgment. I. Plaintiffs contend that the trial court erred in granting defendants motion to the enforce the settlement agreement. We agree. A compromise purporting interpreted to and terminate and tested settlement a agreement controversy by is established a terminating contract, rules to relating or be to contracts. Matters of contract interpretation are questions of law. This Court reviews questions of law de novo. Powell v. City of Newton, 200 N.C. App. 342, 344, 684 S.E.2d 55, 57 58 (2009) (citations and internal quotations omitted). In the formation of a contract an offer and an acceptance are essential elements; they constitute the agreement of the parties. The offer must be communicated, must be complete, and must be accepted in its exact terms. Mutuality of agreement is -7indispensable; the parties must assent to the same thing in the same sense, idem re et sensu, and their minds must meet as to all the terms. Washington v. Traffic Markings, Inc., 182 N.C. App. 691, 697, 643 S.E. 44, 48 (2007) (citation omitted). When an offer and acceptance are relied on to make a contract, [t]he offer must be one which is intended of itself to create legal relations on acceptance. Yeager v. Dobbins, 252 N.C. 824, 828, 114 S.E.2d 820, 823 (1960) (internal quotations omitted). In early February 2009, defendants made an initial offer in the amount of $3,944.00 to settle with plaintiffs all disputes related to the apartment. This offer to settle was rejected by plaintiffs in an email to defendants dated 11 February 2009. Plaintiffs email noted that defendants settlement offer was not a mutually satisfactory amount. Plaintiffs then stated [w]e are willing to sign the waiver3 you requested, but need fair compensation for our expenses . . . . The final paragraph of plaintiffs letter stated: It is our hope that we can come to a settlement agreement with regards to the amount of settlement and avoid litigation. 3 The waiver mentioned in plaintiffs letter was discussed orally during plaintiffs meeting with defendants in early February 2009. The record is devoid of any written waiver prior to the Settlement Agreement and Mutual Release sent to plaintiffs by defendants in their 16 February 2009 letter. -8Our request is for $6,255.00 to cover air testing for both dwellings and decontamination of our personal property. We also request $2,232.00 for refund of our rent-this is half of the amount originally requested. Lastly, we request a refund of our $200.00 pet deposit and $2,000.00 for hardships incurred by this incident. Our total amount of settlement requested is $10,657.00. We look forward to hearing from you soon. This letter was then followed by an email from plaintiffs, sent 12 February 2009, which stated: This morning I received the bills for the 2 air sampling test[s]. One bill is $650 and one bill is $250. We originally thought the 2nd bill would be $650 as well but he has charged less for the 2nd testing. This would decrease the amount that we asked for in the letter. Would you mind forwarding these bills to the appropriate person so they can be put with the letter we hand delivered to you yesterday? The 11 February 2009 letter from plaintiffs created both a rejection of defendants settlement offer for $3,944.00 and a new offer to settle for $10,657.00. This offer was then modified by plaintiffs email on 12 February 2009, which changed the proposed settlement offer from $10,657.00 to $10,257.00. Defendants argue that they accepted plaintiffs offer on 16 February 2009, when defendants attorney drafted and mailed to plaintiffs a Settlement Agreement and Mutual Release. Defendants settlement agreement contained a check in the amount -9of $10,257.00, a release of claims and a confidentiality clause. The agreement stated that by accepting defendants settlement offer of $10,257.00, plaintiffs would grant a full and final release of all claims concerning the apartment. Plaintiffs did not cash the check and, after consulting with counsel, returned the agreement and check to defendants on 8 April 2009. Where a contract s acceptance contains terms not present in the other party s offer, our Court has held that [t]o constitute a valid contract, the parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement. Northington v. Michelotti, 121 N.C. App. 180, 184, 464 S.E.2d 711, 714 (1995) (citation and internal quotation omitted) (holding that no contract existed where one party s proposed additions to an agreement were contested by the other party). Defendants contend that the provisions of the Settlement Agreement and provisions. of claims Mutual Release were common boilerplate These boilerplate provisions constituted a release and a confidentiality clause described as terms we never agreed to. which plaintiffs Although plaintiffs offer of 11 February 2009 stated [w]e are willing to sign the -10waiver you requested, no terms of a waiver were included in plaintiffs offer. Specifically, there was never any agreement, much less any discussion, that a confidentiality agreement would be part of the settlement. Co., 139 N.C. App. 827, See Harris v. Ray Johnson Constr. 831, 534 S.E.2d 653, 655 (2000) (discussing how an oral promise to settle a case necessarily includes an implied promise to dismiss the case with prejudice and [agree to a] release of claims form ). the release agreement of of claims provision 16 February 2009 in may As such, even though defendants have been settlement anticipated plaintiffs, plaintiffs clearly did not anticipate by defendants confidentiality agreement. Plaintiffs cite Chappell v. Roth, 353 N.C. 690, 548 S.E.2d 499 (2001), in support of the proposition that where parties did not agree as to all provisions during a settlement negotiation, these differences constituted a material term which prevented an agreement being reached. In Chappell, the plaintiff and the defendant mediation to reach a settlement agreement. S.E.2d at 499. As part of the settlement underwent Id. at 691, 548 agreement, the plaintiff was to grant the defendant a full release of claims in exchange for compensation for damages suffered in a car -11accident. sent Id. at 691, 548 S.E.2d at 499 500. the plaintiff rejected. Id. a proposed release, The defendant which the plaintiff After the defendant rejected the plaintiff s proposed changes to the settlement offer, the plaintiff sued to have the settlement agreement enforced. at 500. Id. at 691, 548 S.E.2d Our Supreme Court held that no contract was formed if any portion of the proposed terms is not settled. 548 S.E.2d at 500 (citations omitted). Id. at 692, [G]iven the consensual nature of any settlement, a court cannot compel compliance with terms not agreed upon settlement agreement. or expressed by the parties in the Id. at 692, 548 S.E.2d at 500. Defendants argue that Chappell is not applicable and assert that this matter is controlled by Smith v. Young Moving Storage, Inc., 167 N.C. App. 487, 606 S.E.2d 173 (2004). & In Smith, the plaintiff filed a complaint against the defendant after the defendant misplaced plaintiff s camera equipment. at 488, 606 containing defendant. S.E.2d settlement Id. at 174. terms and The a plaintiff demand for sent a Id. letter arbitration to The defendant accepted the plaintiff s terms and sent to the plaintiff a letter containing the plaintiff s demanded terms. Id. at 488, 606 S.E.2d at 175. When the plaintiff then refused to sign the settlement agreement, the -12defendant filed a motion to enforce the settlement agreement which was granted by the trial court. Id. This Court affirmed, holding that where both parties mutually assented to the terms of a settlement agreement, a valid contract had been formed. Id. at 494 95, 606 S.E.2d at 178 (discussing how Chappell was distinguishable because Chappell concerned a change in material terms to a contract which were not mutually assented to by both parties). Smith is not applicable to the facts in the instant case. Here, there was no mutual assent to the confidentiality agreement set forth by defendants and thus no required meeting of the minds regarding the terms of the settlement agreement. As defendants purported acceptance of plaintiffs offer with a Settlement Agreement and Mutual Release created a new offer rather than acceptance and thus, there was no meeting of the minds over the contract s terms, the trial court erred in granting defendants motion to enforce the settlement agreement. We need not address plaintiffs second issue on appeal. As granting defendants motion to enforce the settlement agreement was error, it was likewise error to grant defendants motion for summary judgment. Reversed. Judges STEPHENS and DILLON concur. -13Report per Rule 30(e).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
