{ "id": 9497305, "name": "LADANE WILLIAMSON, Plaintiff/Appellee v. LAURA M. BULLINGTON, Individually and as Executrix of the Estate of William T. Bullington, Jr., Deceased, Defendant/Appellant", "name_abbreviation": "Williamson v. Bullington", "decision_date": "2000-08-15", "docket_number": "No. COA99-703", "first_page": "571", "last_page": "580", "citations": [ { "type": "official", "cite": "139 N.C. App. 571" } ], "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": "199 S.E.2d 414", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 54", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559879 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0054-01" ] }, { "cite": "499 S.E.2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "129 N.C. App. 389", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11650568 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0389-01" ] }, { "cite": "183 S.E.2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1971, "pin_cites": [ { "page": "837" }, { "page": "837-38", "parenthetical": "internal citations omitted" }, { "page": "838" }, { "page": "837-38" } ], "opinion_index": 0 }, { "cite": "12 N.C. App. 448", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550339 ], "year": 1971, "pin_cites": [ { "page": "451-52" } ], "opinion_index": 0, "case_paths": [ "/nc-app/12/0448-01" ] }, { "cite": "415 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "77", "parenthetical": "\"In light of our decision to allow defendant the opportunity to amend her pleadings, summary judgment in favor of either party would be inappropriate at this time.\"" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313704 ], "year": 1992, "pin_cites": [ { "page": "38-39", "parenthetical": "\"In light of our decision to allow defendant the opportunity to amend her pleadings, summary judgment in favor of either party would be inappropriate at this time.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0034-01" ] }, { "cite": "281 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "408", "parenthetical": "reversing dismissal for lack of subject matter jurisdiction and remanding with instructions to allow reformation of pleadings" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 627", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522968 ], "year": 1981, "pin_cites": [ { "page": "629", "parenthetical": "reversing dismissal for lack of subject matter jurisdiction and remanding with instructions to allow reformation of pleadings" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0627-01" ] }, { "cite": "128 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 2116055 ], "year": 1962, "pin_cites": [ { "parenthetical": "establishing the rule \"that the mistaken choice of a fancied remedy on a certain state of facts is not such an election as will bar subsequent pursuit of another remedy which is appropriate to the same state of facts\"" } ], "opinion_index": 0, "case_paths": [ "/sc/241/0451-01" ] }, { "cite": "847 S.W.2d 68", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9994016, 9993962, 9994110 ], "year": 1991, "pin_cites": [ { "parenthetical": "\"Paul's has a right growing out of the transaction, but has chosen the wrong remedy against the Kellys, and in such an instance, this court has the discretion to 'remand the cause to permit the petition to be amended, and a retrial of the cause.' \"" } ], "opinion_index": 0, "case_paths": [ "/sw2d/847/0068-02", "/sw2d/847/0068-01", "/sw2d/847/0068-03" ] }, { "cite": "738 So. 2d 221", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11573510 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/so2d/738/0221-01" ] }, { "cite": "312 N.E.2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "116 Cal. Rptr. 345", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1974, "opinion_index": 0 }, { "cite": "320 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "897", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523256 ], "year": 1984, "pin_cites": [ { "page": "504", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0498-01" ] }, { "cite": "354 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "232, 234", "parenthetical": "citations omitted" }, { "page": "294" }, { "page": "234" } ], "opinion_index": 0 }, { "cite": "319 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4741751 ], "year": 1987, "pin_cites": [ { "page": "291, 294", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0287-01" ] }, { "cite": "200 S.E.2d 622", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "284 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562175 ], "year": 1973, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0407-01" ] }, { "cite": "379 S.E.2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "277", "parenthetical": "quoting Lane v. Scarborough, 284 N.C. 407, 409, 200 S.E.2d 622, 624 (1973)" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528396 ], "year": 1989, "pin_cites": [ { "page": "620", "parenthetical": "quoting Lane v. Scarborough, 284 N.C. 407, 409, 200 S.E.2d 622, 624 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0614-01" ] }, { "cite": "359 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "253", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 636", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12139033 ], "year": 1987, "pin_cites": [ { "page": "638", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0636-01" ] }, { "cite": "414 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "34" } ], "opinion_index": 1 }, { "cite": "331 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2499908 ], "year": 1992, "pin_cites": [ { "page": "94" } ], "opinion_index": 1, "case_paths": [ "/nc/331/0088-01" ] }, { "cite": "428 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "209" } ], "opinion_index": 1 }, { "cite": "109 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525721 ], "year": 1993, "pin_cites": [ { "page": "456" } ], "opinion_index": 1, "case_paths": [ "/nc-app/109/0451-01" ] } ], "analysis": { "cardinality": 841, "char_count": 20035, "ocr_confidence": 0.734, "pagerank": { "raw": 1.2790097748001976e-07, "percentile": 0.6170921547935806 }, "sha256": "23e7d7406d919a7d660436a2eac86f1e445102d75a33313a52fbad6e74197fa4", "simhash": "1:7ef0de3e458cad8c", "word_count": 3179 }, "last_updated": "2023-07-14T19:40:43.899160+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge GREENE dissents." ], "parties": [ "LADANE WILLIAMSON, Plaintiff/Appellee v. LAURA M. BULLINGTON, Individually and as Executrix of the Estate of William T. Bullington, Jr., Deceased, Defendant/Appellant" ], "opinions": [ { "text": "EDMUNDS, Judge.\nDefendant Laura M. Bullington appeals the trial court\u2019s grant of summary judgment in favor of plaintiff LaDane Williamson. We vacate entry of judgment and remand this case with instructions.\nPlaintiff is the former wife of William T. Bullington, Jr. (decedent). She and decedent separated after being married for approximately fifteen years. Following their separation, on 31 August 1990, plaintiff and decedent entered into a Property Settlement Agreement (the Agreement). Pursuant to the Agreement, decedent was to keep, among other things, a one-half interest in the parties\u2019 50% interest in two golf course leases. However, with regard to this property, which is the subject matter of this action, the Agreement provided as follows:\nHusband agrees that he will promptly take any and all reasonable and necessary steps to prepare a Last Will and Testament to cause his estate upon his death to distribute all of his interest in and to the Ocean Isle Beach Golf Lease . . . and the Pearl Golf Course Lease ... to Wife and, if Wife shall predecease Husband, to the parties\u2019 children in equal shares.\nWith respect to said Ocean Isle Beach Golf Lease and Pearl Golf Course Lease, Husband shall not at any time during his lifetime dispose of all or any part of his interest in said leases without Wife\u2019s written consent. The term \u201cdispose of\u2019 as used in this paragraph shall include a sale, assignment, transfer, conveyance, gift, encumbrance, pledge, hypothecation, or other disposition of his interest in said lease (voluntary, involuntary, or otherwise), including committing a levy or attachment of said leases. In the absence of such written consent, the following provisions shall govern:\n(5) If Husband violates the preceding provisions concerning these lease interest restrictions, Wife or Wife\u2019s father or brother shall have an option to purchase all of Husband\u2019s lease interest at fair market value as that term is defined hereinafter.\n(6) If Husband violates the aforesaid provision concerning his obligation to cause his estate to bequeath the lease interest to Wife or alternatively, to the parties\u2019 children upon his death, then Wife or Wife\u2019s father or brother shall have the option to purchase Husband\u2019s interest in the leases in question at fair market value as that term is defined hereinafter.\nThereafter, plaintiff and decedent divorced, and decedent married defendant Laura M. Bullington. Decedent died testate on 1 December 1997, leaving his entire estate, including the lease interests on the golf courses, to defendant.\nPlaintiff filed suit against defendant and decedent\u2019s estate seeking the following specific performance: \u201cThat Defendant(s) be ordered to immediately transfer to Plaintiff all of the previously-existing rights of William T. Bullington, Jr. in the two (2) golf courses identified herein . . . .\u201d Defendant Bullington timely answered and made a motion to dismiss pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1999). The parties filed cross-motions for summary judgment. At the hearing on the motions, the trial court struck affidavits that plaintiff had attached to her motion, then granted summary judgment in favor of plaintiff. Defendant appeals.\nI.\nProperty settlements such as the one at issue here are \u201cas binding and enforceable as other contracts,\u201d Riley v. Riley, 86 N.C. App. 636, 638, 359 S.E.2d 252, 253 (1987) (citations omitted), and should be \u201c \u2018determined by the same rules which govern the interpretation of contracts,\u2019 \u201d Small v. Small, 93 N.C. App. 614, 620, 379 S.E.2d 273, 277 (1989) (quoting Lane v. Scarborough, 284 N.C. 407, 409, 200 S.E.2d 622, 624 (1973)). Therefore, when determining the meaning and effect of the instant property settlement agreement, the trial court should look to the \u201clanguage of the agreement as it reflects the intentions of the parties\u201d and be guided by the \u201c \u2018presum[ption] the parties intended what the language used clearly expresses, and . . . mean[s] what on its face it purports to mean.\u2019 \u201d Hagler v. Hagler, 319 N.C. 287, 291, 294, 354 S.E.2d 228, 232, 234 (1987) (citations omitted). If \u201cthe language of a contract is clear and unambiguous, construction of the contract is a matter of law for the court.\u201d Id. at 294, 354 S.E.2d at 234. Additionally, \u201ca contract must be construed as a whole, considering each clause and word with reference to all other provisions and giving effect to each whenever possible.\u201d Marcoin, Inc. v. McDaniel, 70 N.C. App. 498, 504, 320 S.E.2d 892, 897 (1984) (citations omitted).\nThe Agreement at bar specifically provides for the scenario that has unfolded, where decedent, having agreed to bequeath the lease interests to plaintiff, failed to keep that agreement. Paragraph 3(a)(6) states: \u201cIf Husband violates the aforesaid provision concerning his obligation to cause his estate to bequeath the lease interest to Wife ..., then Wife or Wife\u2019s father or brother shall have the option to purchase Husband\u2019s interest . . . .\u201d (Emphasis added.) Additionally, Paragraph 10 states:\n[T]his Agreement is the only contract existing between the parties. The covenants, stipulations, premises, agreements, assignments, conveyances and provisions in this instrument are inclusive, and they fully and completely determine all issues, controversies and claims between Wife and Husband so that. . . neither can have or will have any past, present or future claims against the other for any reason, other than the breach of any provision of this Agreement.\nNotwithstanding Paragraph 3(a)(6), plaintiff contends that requiring defendant to transfer the lease interests was the correct remedy because the Agreement imposed upon decedent the duty to make a will bequeathing the property to plaintiff during decedent\u2019s lifetime; had decedent done so, at his death, plaintiff would have received the property free of charge. This argument fails for two reasons. First, the Agreement does not guarantee that plaintiff would inevitably receive the property without having to purchase it. Pursuant to Paragraph 3(a)(5) of the Agreement, an attempt by decedent to transfer the property during his lifetime would provide plaintiff with the sole option of purchasing the lease interests at fair market value. Second, the requirement that decedent prepare a will bequeathing the property to plaintiff was open-ended; decedent was not required to prepare the will by any particular time. Therefore, plaintiffs rights set out in Paragraph 3(a)(6) accrued only upon decedent\u2019s death. Those rights control the outcome of this appeal. By granting the remedy sought in plaintiff\u2019s motion for summary judgment, a remedy different from that provided in the Agreement, the trial court failed to enforce the Agreement originally reached between the parties. This failure was prejudicial error. Accordingly, we vacate the trial court\u2019s grant of summary judgment in favor of plaintiff.\nWe must now determine the proper remedy. We have found no North Carolina case in which a plaintiff sought, and the trial court granted, specific performance of a wrong remedy under the terms of the controlling agreement. However, it appears that plaintiff still has a claim under the terms of the Agreement and that she should not be precluded from asserting it. See, e.g., Felix v. Workmen\u2019s Compensation Appeals Board, 116 Cal. Rptr. 345 (Cal. Ct. App. 1974). (\u201cWhere a plaintiff inadvertently or mistakenly chooses a remedy which proves to be the wrong remedy, or at least an unfruitful one, he may thereafter seek an alternative remedy and is not estopped under the doctrine of election of remedies.\u201d); Geist v. Lehmann, 312 N.E.2d 42 (III. App. Ct. 1974) (reversing trial court\u2019s dismissal of plaintiff\u2019s amended complaints in contract action where contract specified remedy for breach, stating \u201cif a party has but one remedy, a mistaken resort to an unavailable inconsistent remedy will not bar him from later choosing his correct remedy unless the other party has relied on the election of the first remedy\u201d); Beyer v. Easterling, 738 So. 2d 221 (Miss. 1999) (reversing summary judgment against plaintiff, who had filed and won a previous suit, on grounds that \u201c[considerations of fairness and equity do not support the dismissal of a possibly meritorious lawsuit based on an earlier lawsuit which may have been filed based on a misunderstanding of the applicable facts\u201d); Paul\u2019s Rod & Bearing, Ltd. v. Kelly, 847 S.W.2d 68 (Mo. Ct. App. 1991) (\u201cPaul\u2019s has a right growing out of the transaction, but has chosen the wrong remedy against the Kellys, and in such an instance, this court has the discretion to \u2018remand the cause to permit the petition to be amended, and a retrial of the cause.\u2019 \u201d); Lancaster v. Smithco, Inc., 128 S.E.2d 915 (S.C. 1962) (establishing the rule \u201cthat the mistaken choice of a fancied remedy on a certain state of facts is not such an election as will bar subsequent pursuit of another remedy which is appropriate to the same state of facts\u201d). Accordingly, we remand this case with instructions that leave should be granted for plaintiff to amend the complaint to assert the appropriate remedy should she so choose. See N.C. Gen. Stat. \u00a7 1A-1, Rule 15(a) (1999); Ingle v. Allen, 53 N.C. App. 627, 629, 281 S.E.2d 406, 408 (1981) (reversing dismissal for lack of subject matter jurisdiction and remanding with instructions to allow reformation of pleadings).\nIn light of our decision to vacate summary judgment in favor of plaintiff and to allow plaintiff the opportunity to amend her pleadings, determining the propriety of defendant\u2019s motion for summary judgment would be inappropriate at this time. See Madry v. Madry, 106 N.C. App. 34, 38-39, 415 S.E.2d 74, 77 (1992) (\u201cIn light of our decision to allow defendant the opportunity to amend her pleadings, summary judgment in favor of either party would be inappropriate at this time.\u201d). Because we decline to address this assignment of error, defendant should not be prejudiced by the former filing and denial of her summary judgment motion and may refile should plaintiff elect to amend her complaint.\nII.\nNext, defendant contends that the trial court erred by granting summary judgment because plaintiff\u2019s father and brother are not parties to the action. See N.C. Gen. Stat. \u00a7 1A-1, Rule 19 (1999). Paragraph 3(a)(6) of the Agreement states that plaintiff, her father, or her brother shall have the option to purchase decedent\u2019s interest. We address this issue because it may arise again. Plaintiffs father and brother are not necessary parties to this action. \u201cA necessary party is one who is so vitally interested in the controversy that a valid judgment cannot be rendered in the action completely and finally determining the controversy without his presence.\u201d Carding Developments v. Gunter & Cooke, 12 N.C. App. 448, 451-52, 183 S.E.2d 834, 837 (1971).\nIn Carding Developments, a case concerning breach of contract, three parties entered into a contract: the plaintiff, the defendant, and a Canadian corporation. The plaintiff filed suit against the defendant, and the defendant moved to dismiss on grounds that the plaintiff was not the real party in interest and that a necessary party, i.e., the Canadian corporation that was a party to the contract, had not been joined. The trial court denied the motion but ordered join-der of the Canadian corporation. This Court found no prejudicial error, holding:\nWe do not view Carding Canada as a necessary party. Plaintiff, although a formal party to the agreement, is in effect a third party beneficiary. A party to a contract is ordinarily not a necessary party in a suit brought against the other contracting party by a beneficiary who claims the contract has been breached. It does not follow, however, that the court committed reversible error in ordering the joinder of Carding Canada as a party, for if it is a proper party, plaintiff may not complain of its joinder.\n. . . While this is a matter primarily between Carding Canada and plaintiff, it nevertheless represents an interest which Carding Canada has in this litigation... . Therefore, Carding Canada most assuredly has interests in this controversy, although its interests are not of such a nature as to render it impossible for the court to finally adjudicate the question of defendant\u2019s liability to plaintiff without Carding Canada\u2019s presence.\nId. at 452-53, 183 S.E.2d. at 837-38 (internal citations omitted). Accordingly, the Court held that the Canadian corporation was a proper party to the suit, thus permitting the trial court to require join-der, but was not a necessary party to the suit. See id. at 453, 183 S.E.2d at 838.\nSimilarly, in the case at bar, while plaintiffs father and brother certainly have interests in the outcome of the litigation, \u201c[their] interests are not of such a nature as to render it impossible for the court to finally adjudicate the question [presented].\u201d Id. at 453, 183 S.E.2d at 837-38. The trial court correctly found that plaintiffs brother and father were not necessary parties.\nIII.\nLastly, plaintiff cross-assigns error to the trial court\u2019s striking of affidavits submitted with plaintiffs motion for summary judgment. See N.C. R. App. P. 10(d). Again, we address this issue because it may arise again.\nRule 56(e) of the North Carolina Rules of Civil Procedure governs the form of affidavits and provides in pertinent part:\nSupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 56(e) (1999). If an affidavit contains hearsay matters or statements not based on an affiant\u2019s personal knowledge, the court should not consider those portions of the affidavit. See Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 499 S.E.2d 772 (1998). Similarly, if an affidavit sets forth facts that would be inadmissible in evidence because of the parole evidence rule, such portions should be struck by the trial court. See Borden, Inc. v. Brower, 284 N.C. 54, 199 S.E.2d 414 (1973).\nPortions of each of plaintiff\u2019s affidavits were properly stricken as inadmissible hearsay, irrelevant, or violative of the parole evidence rule. The portions that would remain after striking the improper statements provide no support to plaintiff\u2019s motion for summary judgment. Accordingly, the trial court correctly struck plaintiff\u2019s affidavits supporting her motion for summary judgment. This assignment of error is overruled.\nVacated and remanded with instructions.\nJudge McGEE concurs.\nJudge GREENE dissents.", "type": "majority", "author": "EDMUNDS, Judge." }, { "text": "Judge Greene\ndissenting.\nI disagree with the majority that the trial court granted plaintiff a remedy not provided for in the Agreement. I, therefore, respectfully dissent.\nA provision in a contract is ambiguous when the \u201clanguage of [the] contract is fairly and reasonably susceptible to either of the constructions asserted by the parties.\u201d Glover v. First Union National Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993).\nIn this case, the Agreement requires decedent \u201cto prepare a Last Will and Testament to cause his estate upon his death to distribute all of his interest in and to the Ocean Isle Beach Golf Lease . . . and the Pearl Golf Course Lease ... to [plaintiff].\u201d Paragraph 3(a)(6) of the Agreement further provides decedent:\nshall not at any time during his lifetime dispose of all or any part of his interest in said leases -without [plaintiffs] written consent. ... In the absence of such written consent, the following provisions shall govern:\n(6) If [decedent] violates the aforesaid provision concerning his obligation to cause his estate to bequeath the lease interest to [plaintiff] ... then [plaintiff] or [plaintiff\u2019s] father or brother shall have the option to purchase [decedent\u2019s] interest in the leases in question at fair market value as that term is defined hereinafter.\n(7) The fair market value of the lease interest in question will be reached by mutual agreement of the parties ....\n(Emphasis added.)\nPlaintiff argues the remedy provided for in paragraph 3(a)(6) of the Agreement applies only to actions taken by decedent in breach of the Agreement during decedent\u2019s lifetime. In contrast, defendant argues paragraph 3(a)(6) applies only to decedent\u2019s obligation to bequeath the lease agreement to plaintiff and is not limited to actions taken by decedent during his lifetime. Because the remedy provided for in the contract is fairly and reasonably susceptible to either of these constructions, the remedy is ambiguous.\nWhen a provision in a contract is ambiguous, the trial court must construe the contract \u201cin a manner that gives effect to all of its provisions, if the court is reasonably able to do so.\u201d Johnston County v. R. N. Rouse & Co., 331 N.C. 88, 94, 414 S.E.2d 30, 34 (1992).\nIn this case, the Agreement provides the parties with a remedy in addition to the ambiguous remedy provided for in paragraph 3(a)(6). In the paragraph of the Agreement entitled \u201cPERFORMANCE: BREACH: ENFORCEMENT: REMEDIES,\u201d the Agreement provides \u201c[b]oth [decedent] and [plaintiff] mutually agree that either party hereto shall have the right to compel the performance of this Agreement or to sue for the breach thereof.\u201d Pursuant to this provision, plaintiff brought suit against defendant for specific performance of the Agreement and the trial court properly granted plaintiff the relief sought. I, therefore, would affirm the trial court\u2019s order granting summary judgment in favor of plaintiff.", "type": "dissent", "author": "Judge Greene" } ], "attorneys": [ "King, Walker, Lambe & Crabtree, P.L.L.C., by William O. King, and Powell & Payne, by William A. Powell, for plaintiff-appellee.", "Rountree & Seagle, L.L.P., by George Rountree, III and Charles S. Baldwin, IV, and Frink, Foy & Yount, P.A., by Henry G. Foy, for defendant-appellant." ], "corrections": "", "head_matter": "LADANE WILLIAMSON, Plaintiff/Appellee v. LAURA M. BULLINGTON, Individually and as Executrix of the Estate of William T. Bullington, Jr., Deceased, Defendant/Appellant\nNo. COA99-703\n(Filed 15 August 2000)\n1. Divorce\u2014 property settlement agreement \u2014 estate\u2014remedy\nThe trial court\u2019s grant of summary judgment in favor of plaintiff ex-wife, based on a property settlement agreement imposing upon decedent husband the duty to make a will to bequeath the pertinent lease interests to plaintiff during decedent\u2019s lifetime and his failure to do so, is vacated and plaintiff is allowed the opportunity to amend her pleadings to assert the appropriate remedy if she so chooses, because: (1) the agreement does not guarantee that plaintiff would inevitably receive the property without having to purchase it; and (2) the requirement that decedent prepare a will bequeathing the property to plaintiff was open-ended, meaning plaintiff\u2019s rights accrued only upon decedent\u2019s death.\n2. Parties\u2014 interest in outcome of litigation \u2014 not necessary party\nThe trial court properly held that plaintiff\u2019s brother and father were not necessary parties to this action seeking to enforce a property settlement agreement between plaintiff ex-wife and decedent husband, because while plaintiff\u2019s brother and father have interests in the outcome of the litigation, their interests are not of such a nature as to render it impossible for the court to finally adjudicate the question presented.\n3. Civil Procedure\u2014 summary judgment \u2014 affidavits\nThe trial court properly struck plaintiff\u2019s affidavits supporting her motion for summary judgment in an action seeking to enforce a property settlement agreement between plaintiff ex-wife and decedent husband, because: (1) portions of each of plaintiff\u2019s affidavits were properly stricken as inadmissible hearsay, irrelevant, or violative of the parol evidence rule; and (2) the portions that would remain provide no support to plaintiff\u2019s motion for summary judgment.\nJudge Greene dissenting.\nAppeal by defendant from judgment entered 4 March 1999 by Judge William C. Gore, Jr., in Brunswick County Superior Court. Heard in the Court of Appeals 28 March 2000.\nKing, Walker, Lambe & Crabtree, P.L.L.C., by William O. King, and Powell & Payne, by William A. Powell, for plaintiff-appellee.\nRountree & Seagle, L.L.P., by George Rountree, III and Charles S. Baldwin, IV, and Frink, Foy & Yount, P.A., by Henry G. Foy, for defendant-appellant." }, "file_name": "0571-01", "first_page_order": 603, "last_page_order": 612 }