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    "judges": [
      "Judges HUNTER and THOMAS concur."
    ],
    "parties": [
      "WILLIAM A. CRIDER, JR., Plaintiff v. THE JONES ISLAND CLUB, INC., Defendant WILLIAM A. CRIDER, JR., Plaintiff v. THE JONES ISLAND CLUB, INC., A North Carolina Corporation, Defendant ANN CRIDER, WILLIAM CRIDER, III, VIRGINIA CRIDER MOCK and CYNTHIA CRIDER JARRELL, Plaintiffs v. THE JONES ISLAND CLUB, INC., Defendant"
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      {
        "text": "GREENE, Judge.\nWilliam A. Crider, Jr. (Crider), Ann Crider (Ann), William Crider, III (William), Virginia Crider Mock (Virginia), and Cynthia Crider Jarrell (Cynthia) (collectively, Plaintiffs) appeal a judgment dated 1 April 1999 granting summary judgment in favor of The Jones Island Club, Inc. (Defendant) on the issue of Plaintiffs\u2019 hunting rights. Plaintiffs also appeal a judgment filed 18 September 2000 granting summary judgment in favor of Defendant on the issue of Crider\u2019s timber rights.\nCrider was the sole general partner of CT Associates, Limited (CT Associates), a Georgia limited partnership. In 1984, CT Associates purchased \u201ctracts of land located in the Pamlico Sound known as Jones Island or Governor\u2019s Island\u201d (the Property). Crider, an avid hunter and \u201coutdoorsman,\u201d primarily purchased the Property to provide his family and himself with an unrestricted place to hunt, subject only to the rules and regulations of the state of North Carolina.\nIn 1985, L. Stephen Wright (Wright), a director and officer of The Jones Island Company (the Company), began negotiations with Crider to purchase the Property. As a result of the negotiations, Crider sold the Property to the Company. On 3 September 1985, Crider, on behalf of CT Associates, and Wright, on behalf of the Company, entered into a Timber and Hunting Agreement (the Agreement) as a condition to and as consideration for the sale of the Property. The Agreement provided, in pertinent part:\n1. Timber Rights. CT [Associates] reserves for itself, its successors and assigns, for a period of ten (10) years following the date hereof, the right to, and easements for ingress and egress necessary to, harvest and remove any and all merchantable timber and pulpwood located on the Property, subject, however, to the following conditions:\n(e) It is understood that CT [Associates] has as of the date hereof been unable to obtain the necessary permits to harvest the timber and pulpwood from Tracts 20, 21, 22, 33, 34, 35 & 36 ... . CT [Associates] shall have ten (10) years from the date said permits are issued to harvest said pulpwood and timber, but in any event, said pulpwood and timber must be harvested on or before August 1, 2005. CT [Associates] shall exercise reasonable efforts to secure the necessary permits, and [the Company] will at the request of CT [Associates] cooperate in the efforts of CT [Associates] to secure the same. [(1(e))].\n2. Hunting. [Crider,] his spouse, children and guests (not to exceed 4 at any one time) may hunt on any or all of the Property at any time and from time to time without restriction, payment or charge of any kind; provided however they shall obey all nondiscriminatory rules and regulations generally applicable to all persons hunting on the Property.\n4. Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their heirs, representatives, successors and assigns.\nIn 1986, the Company, proceeding with its plan to develop a hunting club on the Property, formed the Old South Rod and Gun Club Owner\u2019s Association (the Association). The Association\u2019s primary responsibility was to develop hunting club rules. One of the rules developed by the Association was the \u201cDesignated Member Rule\u201d (the DM Rule) which provided \u201c[e]ach membership or unit (33 total) will be entitled to designate one person on March 1 and/or September 1 of each year, in writing to the Manager, who will become the \u2018Designated Member\u2019 for that membership.\u201d The designated member had to be present for the membership to be used in any way, including hunting, fishing, and lodging. With regard to duck hunting, the DM Rule specifically provided that each designated member was entitled to one \u201cblind-site\u201d per draw. The drawings for blinds were held daily at 11:30 a.m. and 7:00 p.m. during duck hunting season.\nOn 27 March 1985, Crider filed an application with the Division of Coastal Management (DCM) to obtain \u201cCAMA\u201d permits to construct logging roads and remove timber from the Property. DCM informed Crider his application would be denied. Crider requested his application be placed in a hold posture instead of DCM denying it. Subsequently, Crider\u2019s application for \u201cCAMA\u201d permits was placed on hold. In January 1986, DCM informed Crider that \u201ca permit was not going to be issued because of numerous environmental problems.\u201d In February 1987, Crider\u2019s application for \u201cCAMA\u201d permits was placed in DCM\u2019s inactive file. Despite Crider\u2019s efforts to obtain \u201cCAMA\u201d permits, DCM refused to issue the permits because of problems with wetland issues. After continuing efforts through 1989, Crider\u2019s attorney informed Crider that in his opinion, \u201cfurther attempts to procure the necessary permits to log would be extremely expensive and probably futile.\u201d There were, however, other alternatives available to Crider for harvesting, removing, and marketing the timber, but those alternatives were either economically or environmentally unfeasible. On 5 August 1992, CT Associates transferred its timber rights to Crider and his heirs. Between 1990 and 1995, Crider and his attorney continued to monitor environmental regulations to ascertain any possible change in the status of Crider\u2019s application, and Crider\u2019s application for \u201cCAMA\u201d permits remains in a hold status with DCM.\nSometime during the mid-1990\u2019s, the Association notified Crider it \u201cwas taking the position that [Crider\u2019s] hunting rights were restricted.\u201d First, Crider could have a total of only four people hunt on the Property at one time; and second, Crider and his family were entitled to use only one duck blind per visit. By letter dated 10 February 1997, Louis M. Wade, Jr., President of Defendant, informed Crider his timber rights had expired and \u201cany attempts by either [Crider] or anyone on [his] behalf to cut timber located on [Defendant\u2019s] property [would] be considered as an unlawful entry.\u201d\nOn 21 July 1997, Crider filed a complaint seeking a judgment declaring: he had the sole right to cut timber on the Property until 2005; he and his family were not restricted by the DM Rule or the one-duck-blind-per-day rule; and each member of his family was entitled to four guests at one time. In an answer and counterclaim filed 1 October 1997, Defendant denied the allegations of Plaintiff\u2019s complaint and counterclaimed for: a judgment declaring Defendant had the sole and exclusive right to cut and harvest timber on the Property; a judgment declaring Crider and his family members did not have hunting rights individually as contended by Crider; and a trial by jury on all issues of fact. Defendant and Crider filed cross-motions for summary judgment on 18 and 19 August 1998. In an order dated 1 April 1999, the trial court concluded: the agreement was unambiguous with regard to the hunting rights; Crider\u2019s hunting parties could not be limited to four people; the DM rule and one-blind-per-day rule were applicable to Crider; and at no time could Crider have more than one draw or utilize more than one duck blind. In June 1999, Ann, William, Virginia, and Cynthia (collectively, Crider\u2019s family) filed a complaint seeking a declaratory judgment to determine their hunting rights pursuant to the Agreement. In a consent order filed 13 December 1999, the parties agreed to allow Crider\u2019s family to intervene and be joined as parties in the original action filed by Crider. The consent order also provided that the 1 April 1999 order was binding on the intervening parties.\nOn 3 August 2000, Plaintiffs moved the trial court for partial summary judgment on the issue of whether Crider\u2019s timber rights expired on 3 September 1995. In an order filed 18 September 2000, the trial court awarded Defendant summary judgment on the issue of Crider\u2019s timber rights, finding that further efforts by Crider to obtain the necessary permits to cut timber would be \u201cfutile.\u201d\nThe issues are whether: (I) the hunting rights provision is ambiguous and therefore a question of fact for the jury; and (II) the trial court erred in writing a futility provision into the terms of Crider\u2019s timber rights thereby terminating those rights.\nIf the language of a contract \u201cis clear and only one reasonable interpretation exists, the courts must enforce the contract as written\u201d and cannot, under the guise of interpretation, \u201crewrite the contract or impose [terms] on the parties not bargained for and found\u201d within the contract. Woods v. Nationwide Mut. Ins. Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978). If the contract is ambiguous, however, interpretation is a question of fact, Barrett Kays & Assoc., P.A. v. Colonial Bldg. Co., Inc. of Raleigh, 129 N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998), and resort to extrinsic evidence is necessary, Holshouser v. Shaner Hotel Grp. Props. One, 134 N.C. App. 391, 397, 518 S.E.2d 17, 23, disc. review denied, 351 N.C. 104, 540 S.E.2d 362 (1999), aff'd per curiam, 351 N.C. 330, 524 S.E.2d 568 (2000). \u201cAn ambiguity exists in a contract if the \u2018language of a contract is fairly and reasonably susceptible to either of the constructions asserted by the parties.\u2019 \u201d Barrett, 129 N.C. App. at 528, 500 S.E.2d at 111 (citations omitted). Thus, if there is any uncertainty as to what the agreement is between the parties, a contract is ambiguous. Id. This Court\u2019s \u201creview of a trial court\u2019s determination of whether a contract is ambiguous is de novo.\u201d Id.\nI\nHunting rights\nPlaintiffs argue the trial court erred in determining the hunting rights clause was unambiguous. We agree.\nIn this case, an ambiguity exists with respect to Plaintiffs\u2019 hunting rights because it is unclear from the Agreement as to how to apply the words of the hunting rights provision. Specifically, the Agreement is unclear whether each individual member of Crider\u2019s family is limited to four guests at one time or whether only four people, including Crider, his family, and their guests, are allowed to hunt on the Property at one time. Additionally, the Agreement states Plaintiffs would be allowed to hunt on the Property without restriction, but then subjects these \u201cunrestricted\u201d hunting rights to \u201cnondiscriminatory rules and regulations,\u201d without specifying what is meant by \u201cnondiscriminatory rules\u201d and whether these rules apply to hunting conduct or to hunting rights. These ambiguities create an issue of material fact for the jury and thus allow consideration of extrinsic evidence. Accordingly, the trial court erred in granting summary judgment in favor of Defendant on Plaintiffs\u2019 hunting rights. See Holshouser, 134 N.C. App. at 398-99, 518 S.E.2d at 24 (summary judgment is inappropriate where issues of material fact exist).\nII\nTimber rights\nPlaintiffs next argue the trial court erred in concluding Crider had no rights to the timber located on the tracts described in 1(e) of the Agreement. We agree.\nIn this case, the trial court found it would be futile for Crider to attempt to obtain the necessary permits to cut timber. The Agreement, however, does not contain a provision that Crider shall have rights to harvest the timber until his efforts to obtain the necessary permits would be futile; thus, the trial court erred in imposing a futility requirement on Crider\u2019s timber rights under the Agreement. Whether Crider exercised reasonable efforts to obtain the necessary permits or whether the timber could be harvested in an economically and environmentally feasible manner prior to 1 August 2005 without the permits is a question of fact. See Smith v. Currie, 40 N.C. App. 739, 742-43, 253 S.E.2d 645, 647 (whether a party exercised \u201creasonable efforts\u201d is ordinarily a question of fact as it is \u201cthe type of question that depends for its resolution on a consideration of the subjective intentions and motivation of the actor,\u201d and therefore inappropriate for summary judgment), disc. review denied, 297 N.C. 612, 257 S.E.2d 219 (1979). Accordingly, as the trial court erred in granting summary judgment for Defendant on Crider\u2019s timber rights, this case is remanded for a jury to determine whether Crider\u2019s timber rights terminated prior to 1 August 2005.\nReversed and remanded.\nJudges HUNTER and THOMAS concur.\nThe Company was Defendant\u2019s predecessor in interest.\n. The parties stipulated, with respect to both the hunting and timber rights, the questions involved were \u201cquestions of law and not of fact.\u201d This stipulation, however, is not binding on this Court, as this Court\u2019s review of a trial court\u2019s grant of summary judgment \u201caddresses the trial court\u2019s conclusions as to whether, viewing the evidence in the light most favorable to the non-moving party, (1) there is no genuine issue of material fact, and (2) the moving party is entitled to judgment as a matter of law.\u201d Fieldcrest Cannon, Inc. v. Fireman\u2019s Fund Ins. Co., 124 N.C. App. 232, 239, 477 S.E.2d 59, 64 (1996), disc. review denied, 348 N.C. 497, 510 S.E.2d 383 (1998). Thus, we determine de novo whether there are any genuine issues of fact. See id.\n. We note some cases distinguish between latent and patent ambiguities in construing contracts and determining whether to admit extrinsic evidence. More recent cases, however, have not used this distinction and instead generally rely on whether an ambiguity exists in determining whether to admit extrinsic evidence. See 11 Samuel Williston, A Treatise on the Law of Contracts \u00a7 33:40, at 816-18 (Richard A. Lord ed., 4th ed. 1999).",
        "type": "majority",
        "author": "GREENE, Judge."
      }
    ],
    "attorneys": [
      "Ward and Smith, P.A., by John M. Martin, for plaintiff - appellants.",
      "Daughtry, Woodard, Lawrence & Starling, L.L.P., by Luther D. Starling, Jr. and Kelly Daughtry, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "WILLIAM A. CRIDER, JR., Plaintiff v. THE JONES ISLAND CLUB, INC., Defendant WILLIAM A. CRIDER, JR., Plaintiff v. THE JONES ISLAND CLUB, INC., A North Carolina Corporation, Defendant ANN CRIDER, WILLIAM CRIDER, III, VIRGINIA CRIDER MOCK and CYNTHIA CRIDER JARRELL, Plaintiffs v. THE JONES ISLAND CLUB, INC., Defendant\nNo. COA00-1429\n(Filed 20 November 2001)\n1. Real Property\u2014 Timber and Hunting Agreement \u2014 interpretation \u2014 issue of fact\nThe trial court erred by granting summary judgment for defendant on the interpretation of a clause in a Timber and Hunting Agreement where it was unclear from the Agreement as to how to apply the provisions as to guests and restrictions. These ambiguities create an issue of material fact for the jury and thus allow consideration of extrinsic evidence.\n2. Real Property\u2014 Timber and Hunting Agreement \u2014 inability to acquire permits\nThe trial court erred by granting summary judgment for defendant on the interpretation of a Timber and Hunting Agreement regarding timber rights where the court found that it would be futile for plaintiff to attempt to obtain the necessary permits to cut timber, but the Agreement does not contain a futility provision. Whether plaintiff exercised reasonable efforts to obtain the necessary permits or whether the timber could be harvested in an economically and environmentally feasible manner prior to the expiration date of the timber provision is a question of fact.\nAppeal by plaintiffs from an amended memorandum and judgment dated 1 April 1999 by Judge Dennis J. Winner and from an order of summary judgment filed 18 September 2000 by Judge Benjamin G. Alford in Pamlico County Superior Court. Heard in the Court of Appeals 9 October 2001.\nWard and Smith, P.A., by John M. Martin, for plaintiff - appellants.\nDaughtry, Woodard, Lawrence & Starling, L.L.P., by Luther D. Starling, Jr. and Kelly Daughtry, for defendant-appellee."
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