{ "id": 11709968, "name": "ALFRED C. STARLING, Plaintiff v. DAVID M. STILL and THERESA F. PARKER, d/b/a/ STILL & COMPANY, Defendants", "name_abbreviation": "Starling v. Still", "decision_date": "1997-05-20", "docket_number": "No. COA96-693", "first_page": "278", "last_page": "285", "citations": [ { "type": "official", "cite": "126 N.C. App. 278" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "432 S.E.2d 339", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "347" } ], "opinion_index": 0 }, { "cite": "334 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532594 ], "year": 1993, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0303-01" ] }, { "cite": "414 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "575" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524731 ], "year": 1992, "pin_cites": [ { "page": "626" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0620-01" ] }, { "cite": "175 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "293" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 612", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554342 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0612-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "2 S.E.2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "215 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631119 ], "year": 1939, "pin_cites": [ { "page": "633" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0628-01" ] }, { "cite": "433 S.E.2d 231", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 643", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523327 ], "year": 1993, "pin_cites": [ { "page": "647" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0643-01" ] }, { "cite": "137 F. Supp. 628", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4267612 ], "year": 1956, "pin_cites": [ { "page": "631" } ], "opinion_index": 0, "case_paths": [ "/f-supp/137/0628-01" ] } ], "analysis": { "cardinality": 689, "char_count": 14872, "ocr_confidence": 0.755, "pagerank": { "raw": 8.664332549873099e-08, "percentile": 0.4918445052201885 }, "sha256": "068d225e0b80e35628ab8cffca2f807cde553febabae6b1a35ca059b762da6c2", "simhash": "1:8759cf62ae928cce", "word_count": 2375 }, "last_updated": "2023-07-14T19:11:14.463583+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and MARTIN, Mark D. concur." ], "parties": [ "ALFRED C. STARLING, Plaintiff v. DAVID M. STILL and THERESA F. PARKER, d/b/a/ STILL & COMPANY, Defendants" ], "opinions": [ { "text": "WYNN, Judge.\nIn early 1994, the parties to this action, all certified public accountants, executed an \u201cAgreement To Service Accounts\u201d providing, inter alia:\nWHEREAS, Owner is a Certified Public Accountant and has an accounting practice with a number of clients which he has serviced over the years; and,\nWHEREAS, Owner is desirous of having Servicers handle the servicing of said clients on an ongoing daily basis as required; and,\nWHEREAS, Servicers, under the name of Still & Company, are active Certified Public Accountants and are agreeable to servicing clients of Owner, all in accordance with the terms of the agreement recited hereinafter;\nNOW, THEREFORE, the parties, in consideration of the premises recited above and other valuable consideration, agree as follows:\n1. Beginning November 1, 1994, Servicers agree to commence servicing clients of Owner, a list of which is herewith attached as Exhibit A. Owner will cooperate in introducing clients and assisting Servicers to cause the servicing to be as smoothly [sic] as possible. After November 1, 1994, all clients on Exhibit A will become clients of Still & Company.\n2. Servicers agree to pay owner $30,000.00 for the right to service said clients of Owner, payable in twenty (20) quarterly payments of $1,500.00 each, with the first quarterly payment commencing on March 15,1995, and a like amount each quarter thereafter with payments on June 15, September 15, December 15 and March 15 thereafter until paid in full.\n3. Owner agrees not to compete with Servicers in the Charlotte area for any clients for a period of five (5) years.\n9. Except for servicing of the accounts recited herein, any and all personal investments of Owner and personal relatives are reserved by him and are understood not to become a part of this agreement.\nIn October 1994, plaintiff Alfred C. Starling, identified as the \u201cOwner\u201d under the agreement, sent a letter to his clients stating: \u201cI have decided to turn my accounting practice over to another certified public accounting firm to service my clients in the future, while I take a semi-retired status.\u201d The letter introduced defendant David Still and informed the clients that Still & Company would now be servicing their accounts. In a follow-up letter, defendants introduced themselves, explained their qualifications and invited Mr. Starling\u2019s former clients to set up an appointment.\nIn March 1995, Still wrote to plaintiff informing him that Still & Company had not been successful in retaining as many of his clients as they had hoped and proposed an amendment to the payment arrangements of their agreement. Starling responded that he was unprepared to make any adjustment to their agreement, but offered to do as much as he could to help defendants keep his old accounts. The next month, defendants paid the initial $1,500 installment under the agreement. When defendants refused to make the next scheduled payment, plaintiff brought this action for breach of contract alleging that \u201cby the terms of the Agreement and the intent and understanding of the parties, this was a sale of Plaintiff\u2019s accounting practice, particularly those clients listed and attached to the Agreement,\u201d which defendants had breached by failing to make the scheduled installment payment.\nDefendants responded by alleging, inter alia, that the agreement was for personal services entitling them to rescind the unexecuted portion of the agreement, and that plaintiff breached the agreement by not introducing clients and assisting the defendants as required. In addition, defendants counterclaimed alleging that plaintiff had intentionally misrepresented the amount of annual billings Still & Company could expect upon taking over the servicing of plaintiffs clients.\nPlaintiff moved for and the trial court granted summary judgment in his favor awarding damages of $28,500 plus interest. From that order, defendants appeal.\nOn appeal defendants contend that the trial court erred by grant-\u2019 ing summary judgment because: (I) The contract was one for personal services which defendants were entitled to rescind, rather than one for the sale of plaintiffs practice; (II) A genuine issue of material fact exists as to plaintiffs compliance with the material provisions of the contract; and (III) The trial court was without authority to accelerate the plaintiffs damages in the absence of an acceleration clause in the contract. We agree only with defendant\u2019s final contention.\nI.\nDefendants first contend that the parties contracted for personal services entitling them to rescind the unexecuted portion of the agreement. They argue that the express language labeling the contract an \u201cAgreement To Service Accounts\u201d controls this issue.\n\u201cAn agreement should be interpreted as a whole and the meaning gathered from the entire contract, and not from particular words, phrases, or clauses.\u201d Divine v. Watauga Hospital, 137 F. Supp. 628, 631 (M.D.N.C. 1956). Moreover, \u201c[t]he heart of a contract is the intention of the parties as determined from its language, purposes, and subject matter and the situation of the parties at the time of execution.\u201d McDonald v. Medford, 111 N.C. App. 643, 647, 433 S.E.2d 231, 234 (1993).\nDespite the use of language in the subject contract calling for a \u201cservicing of accounts,\u201d all of plaintiffs clients were to become defendants\u2019 clients after a set date essentially leaving plaintiff without an accounting practice. Undisputedly, plaintiffs desire to retire prompted the agreement between the parties. The record contains a copy of defendants\u2019 check for the first installment payment under the agreement bearing the notation \u201c1st check \u2014 buyout of practice.\u201d The record also contains a memo, initialed by all the parties, entitled \u201cItems To Be Considered In Takeover Of Mr. Starling\u2019s Practice.\u201d In short, the evidence in the record shows that the parties intended the agreement to be a sale of plaintiff\u2019s accounting practice. We therefore find that the trial court correctly interpreted it as such.\nII.\nDefendants next contend that there are disputed facts between the parties regarding plaintiff\u2019s compliance with the contract. They argue that they have not received the benefit of their bargain because all of plaintiff\u2019s clients did not become their clients. We disagree.\nThe agreement called for defendants to start servicing plaintiff\u2019s clients on 1 November 1994. The agreement further required that plaintiff cooperate in \u201cintroducing clients and assisting [defendants].\u201d The record indicates that in October 1994, plaintiff wrote letters to all of his clients informing them that he would be retiring and turning his accounting practice over to another certified public accounting firm, Still & Company, which would be servicing their accounts in the future. Manifestly, the defendants must have understood that plaintiff had no authority to guarantee that his former clients would remain with defendants. While we appreciate that defendants were disappointed with the number of clients that they were able to retain, \u201c[a] court cannot grant relief from a contract merely because it is a hard one.\u201d Durant v. Powell, 215 N.C. 628, 633, 2 S.E.2d 884, 887 (1939).\nDefendants next argue that there is a genuine issue of material fact concerning whether plaintiff violated the contract\u2019s non-compete provision. \u201cIt has been said that a genuine issue is one which can be maintained by substantial evidence.\u201d Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). Since an examination of the record reveals no evidence to support defendants\u2019 allegation, it cannot serve as a basis for summary judgment.\nLastly, defendants argue that there is a dispute as to whether plaintiff fulfilled his contractual obligation to \u201ccooperate in introducing clients and assisting [defendants] to cause the servicing to be as smoothly [sic] as possible.\u201d However, the record does not support such an argument.\nThe uncontroverted evidence in the record shows that plaintiff introduced defendants to his clients by letter indicating that Still & Company would now be servicing their accounts. When defendants wrote to plaintiff proposing an adjustment to the parties\u2019 payment arrangements because they had been unsuccessful in retaining as many clients as they had hoped, plaintiff responded, \u201cDavid, I will be happy to help you all I can to keep my old accounts, but in view of the fact that I am not in the insurance business, I am unprepared to make any adjustment on our agreement.\u201d Moreover, David Still gave the following testimony regarding a reception the parties had discussed to personally introduce plaintiffs clients to defendants:\nA. We thought that would be cumbersome and would not be in the best interest of the client or, in my judgment looking back at my experience with my own clients, I don\u2019t think that we could assure that would be a harmonious group of clientele because we didn\u2019t know. So we felt like it would be better to have a one-on-one before we even thought about that kind of thing. And we finally concluded that in most likelihood that it would be to our advantage to do one-on-one with Al and these clients. But that never materialized.\nQ. But you never asked him to bring any of these people in to see you on a one-on-one basis?\nA. It never worked that way. No, because, for some reason, it just got put on the back burner both by Al and by us as being something that we would like to do but never did materialize.\nQ. You never asked him to bring in a single client to talk to you?\nA. Not specifically. '\nQ. But he never refused to contact anybody that you asked him?\nA. Not to my knowledge. No, never did.\nSince our examination of the record indicates no genuine issue of material fact concerning plaintiff\u2019s compliance with the contract, we conclude that the trial court appropriately granted summary judgment for plaintiff. Accordingly, we affirm the trial court\u2019s order.\nIII.\nDefendants lastly contend that the trial court erred by imposing damages of $28,500, the balance of the entire amount due under the contract, in the absence of an acceleration clause. We agree.\nPlaintiffs argue that they were entitled to the remainder of the purchase price since defendants, by their actions, repudiated the entire contract. However, this Court addressed a similar argument in Roberts Co. v. Mills, Inc., 8 N.C. App. 612, 175 S.E.2d 289 (1970). We noted:\nPlaintiff\u2019s argument in this respect is that the contract was in effect repudiated by defendant, and for that reason judgment should have been rendered for the entire contract price. However, the contract sued upon by the plaintiff was in writing and obligated the defendant to pay the purchase price .. . only in monthly installments. There was no acceleration clause making the entire contract price due in event defendant should default in paying any monthly installment. \u201cIn the absence of such a provision for acceleration, a failure to pay some of the installments entitles the creditor to recover only the amount of the unpaid installments.\u201d\nId. at 619, 175 S.E.2d at 293. Thus, while \u201c[t]he general rule is that an anticipatory repudiation will give rise to an action for total breach of the contract. . . this rule does not apply in the case of repudiation of an installment contract which contains no acceleration clause.\u201d Taylor v. Taylor Products, Inc., 105 N.C. App. 620, 626, 414 S.E.2d 568, 575 (1992), overruled on other grounds by Brooks v. Giesey, 334 N.C. 303, 318, 432 S.E.2d 339, 347 (1993). Where there is no acceleration clause and the contract price is to be paid in installments, \u201cthe aggrieved party is not entitled to immediately sue for the total amount of the contract, but must wait until each installment becomes due.\u201d Id.\nUnder the terms of the contract in the instant case, defendants were to pay $30,000 in twenty quarterly payments of $1,500. Defendants made only the first installment and plaintiffs brought suit when defendants refused to tender the second installment when it came due. Since the contract contains no acceleration clause, plaintiff was only entitled to recover the amount of the unpaid installment. Therefore, the trial court erred by imposing damages of $28,500, the entire amount due under the contract. Accordingly, we reverse and remand to the trial court for entry of an award of damages consistent with this opinion.\nAffirmed in part, reversed in part and remanded.\nJudges LEWIS and MARTIN, Mark D. concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Bledsoe & Bledsoe, P.L.L.C., by Louis A. Bledsoe, Jr. and Margaret M. Bledsoe, for plaintiff-appellee.", "Harkey, Lambeth, Nystrom, Fiorella & Morrison, L.L.P., by Philip D. Lambeth, for defendants-appellants." ], "corrections": "", "head_matter": "ALFRED C. STARLING, Plaintiff v. DAVID M. STILL and THERESA F. PARKER, d/b/a/ STILL & COMPANY, Defendants\nNo. COA96-693\n(Filed 20 May 1997)\n1. Contracts \u00a7 47 (NCI4th)\u2014 construction of agreement\u2014 sale of accounting practice\nThe trial court did not err in interpreting the agreement between the plaintiff accountant and defendant accounting firm as a sale of plaintiff\u2019s accounting practice rather than a contract for personal services despite the use of contract language calling for a \u201cservicing of accounts\u201d where all of plaintiff\u2019s clients were to become defendant\u2019s clients; the record contained a check from defendant with the notation \u201c1st check-buyout of practice\u201d and a memo initialed by the parties and entitled \u201cItems To Be Considered In Takeover Of Mr. Starling\u2019s Practice\u201d; and it was undisputed that plaintiff\u2019s desire to retire prompted the contract.\nAm Jur 2d, Contracts \u00a7\u00a7 336, 342-344, 350-354.\n2. Contracts \u00a7 78 (NCI4th)\u2014 sale of accounting practice\u2014 compliance with contract\nThere was no genuine issue of material fact as to plaintiff\u2019s compliance with a contract for the sale of plaintiff\u2019s accounting firm to defendants where defendants were unable to retain all of plaintiff\u2019s clients, but the undisputed evidence in the record indicated that plaintiff fulfilled his obligations to introduce his clients to defendants; therefore, the trial court properly granted summary judgment in favor of plaintiff.\nAm Jur 2d, Building and Construction Contracts \u00a7\u00a7 41-43.\n3. Contracts \u00a7 168 (NCI4th)\u2014 breach of contract \u2014 installments \u2014 absence of acceleration clause \u2014 limited recovery\nIn an action for breach of a contract for the sale of plaintiff\u2019s accounting practice to defendants, the trial court erred by imposing damages equal to the entire amount of the contract between the parties where the purchase price was to be paid in installments, the contract did not contain an acceleration clause, and plaintiff was thus entitled to recover only the amount of the unpaid installment.\nAm Jur 2d, Damages \u00a7\u00a7 43 et seq.\nAppeal by defendants from order entered 9 April 1996 by Judge Marvin K. Gray in Mecklenburg County Superior Court. Heard in the Court of Appeals 20 February 1997.\nBledsoe & Bledsoe, P.L.L.C., by Louis A. Bledsoe, Jr. and Margaret M. Bledsoe, for plaintiff-appellee.\nHarkey, Lambeth, Nystrom, Fiorella & Morrison, L.L.P., by Philip D. Lambeth, for defendants-appellants." }, "file_name": "0278-01", "first_page_order": 316, "last_page_order": 323 }