{ "id": 9248939, "name": "PURCHASE NURSERY, INC., a corporation, PAUL VANCE and FAYE J. VANCE, Plaintiffs v. WENDELL H. EDGERTON, MARGERY A. EDGERTON, LOREN BUCHANAN, NANCY G. BUCHANAN, ROBERT S. SMITHEY, DAVIDA B. SMITHEY, BINGHAM REAL ESTATE, L.P., a Limited Partnership, MICHAEL WAYNE BINGHAM, and CINDY V. BINGHAM, Defendants", "name_abbreviation": "Purchase Nursery, Inc. v. Edgerton", "decision_date": "2002-09-17", "docket_number": "No. COA01-1364", "first_page": "156", "last_page": "163", "citations": [ { "type": "official", "cite": "153 N.C. App. 156" } ], "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": "500 S.E.2d 714", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "717", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "348 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1659870 ], "year": 1998, "pin_cites": [ { "page": "566", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/348/0562-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 39-13.6", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 47-18", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "187 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "507", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546750 ], "year": 1972, "pin_cites": [ { "page": "37", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0034-01" ] }, { "cite": "294 S.E.2d 223", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571994, 8571950, 8572020, 8571925, 8572058 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0556-03", "/nc/306/0556-02", "/nc/306/0556-04", "/nc/306/0556-01", "/nc/306/0556-05" ] }, { "cite": "290 S.E.2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "759" }, { "page": "758" }, { "page": "758" } ], "opinion_index": 0 }, { "cite": "57 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521664 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "8" }, { "page": "7" }, { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nc-app/57/0001-01" ] }, { "cite": "97 S.E. 750", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1919, "pin_cites": [ { "page": "751" }, { "page": "751" } ], "opinion_index": 0 }, { "cite": "177 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653534 ], "weight": 2, "year": 1919, "pin_cites": [ { "page": "19" }, { "page": "19" } ], "opinion_index": 0, "case_paths": [ "/nc/177/0017-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 22-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2001, "opinion_index": 0 }, { "cite": "560 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220000, 220033, 220052, 219956, 220058 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0215-01", "/nc/355/0215-03", "/nc/355/0215-02", "/nc/355/0215-04", "/nc/355/0215-05" ] }, { "cite": "550 S.E.2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "529" }, { "page": "530" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 176", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11436561 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0176-01" ] }, { "cite": "530 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "843" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 19", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11078414 ], "year": 2000, "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0019-01" ] }, { "cite": "307 S.E.2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "819" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 520", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527144 ], "year": 1983, "pin_cites": [ { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0520-01" ] } ], "analysis": { "cardinality": 660, "char_count": 15494, "ocr_confidence": 0.767, "pagerank": { "raw": 8.686688888967393e-08, "percentile": 0.49277428915739874 }, "sha256": "e5250665502f45f6a6da8a4e4beb672c23294886d5c6a1e1b2d4808c9017689a", "simhash": "1:c95e657c40840eda", "word_count": 2572 }, "last_updated": "2023-07-14T15:17:05.865609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and THOMAS concur." ], "parties": [ "PURCHASE NURSERY, INC., a corporation, PAUL VANCE and FAYE J. VANCE, Plaintiffs v. WENDELL H. EDGERTON, MARGERY A. EDGERTON, LOREN BUCHANAN, NANCY G. BUCHANAN, ROBERT S. SMITHEY, DAVIDA B. SMITHEY, BINGHAM REAL ESTATE, L.P., a Limited Partnership, MICHAEL WAYNE BINGHAM, and CINDY V. BINGHAM, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nPurchase Nursery, Inc. (\u201cplaintiff\u201d) appeals from an order granting Wendell H. Edgerton, Loren Buchanan, and Robert S. Smithey (\u201cdefendants\u201d) summary judgment and denying plaintiffs motion for summary judgment. We reverse in part and affirm in part the trial court\u2019s order.\nI. Facts\nDefendants and their spouses purchased 113 acres of real property in Ashe County, North Carolina in 1984 and took title as tenants by the entireties. On 1 April 1985, defendants and their wives executed a lease for this property to Paul and Faye Vance (\u201cVances\u201d), d/b/a/ Purchase Nursery, for a term of ten years with an expiration date of 31 March 1995 (\u201cold lease\u201d). The old lease was never recorded in Ashe County but was mistakenly recorded in Wilkes County where defendants resided.\nThe Vances entered into possession of the land pursuant to the lease and operated a nursery business. The old lease provided that the Vances would pay $100.00 per year fixed rental plus twenty-five percent of sales from everything grown on the property. The old lease contained a clause that prohibited transfer, assignment, or subletting the property without prior written consent by defendants. The old lease also contained a clause that allowed the Vances to extend the term of the old lease for an additional five years provided that the Vances notified defendants in writing at least six months prior to the expiration of the Lease.\nThe Vances did not exercise the option to extend the lease prior to 31 March 1995. In the summer of 1995, the Vances incorporated their business under the name Purchase Nursery, Inc. (plaintiff). The Vances purported to have \u201corally assigned\u201d the old lease to plaintiff. In January of 1996, defendants accepted $100.00 in fixed yearly rent and $8,211.00 in percentage rental from plaintiff. In the spring of 1996, the Vances transferred ownership in plaintiff to Ronnie and Debra Yates.\nOn 15 August 1996, plaintiff and defendants executed a document entitled \u201cExercise of Lease Option on New River Property\u201d (\u201cnew lease\u201d). The new lease was signed by all three defendants and by Debra Yates as secretary of plaintiff and on behalf of plaintiff. Defendants\u2019 spouses, who had an entireties interest in the property, did not sign.\nThe new lease was not recorded. Provisions in the new lease incorporated terms of the old lease. After the execution of the new lease, plaintiff continued to care for and harvest the trees that it had planted on the property during the old lease, but did not plant any additional trees on the land as agreed to in the new lease. Defendants accepted fixed annual and percentage rents from plaintiff until the farm was sold.\nOn or about 4 January 1999, defendants and their spouses transferred the land to Bingham Real Estate, L.P. (\u201cBingham\u201d) without any reference to the encumbrance of the new lease. When defendants received the 1999 rent payment from plaintiff, they returned it to plaintiff with assurances that Bingham would honor the lease. Plaintiff then sent Bingham a corporate check for the 1999 rent which was accepted.\nOn 7 February 2000, plaintiff sent Bingham a percentage rental check for the trees harvested in 1999 and one for the 2000 fixed annual rent. On 28 March 2000, Bingham accepted the 1999 percentage rent check but returned the 2000 fixed annual rental check stating that the lease would be terminated effective 31 March 2000. On 5 July 2000, plaintiff\u2019s employees working on the property were told to leave and were not allowed to continue harvesting the remaining trees.\nOn 20 October 2000, plaintiff filed a complaint against defendants for breach of contract, fraudulent concealment, and unfair and deceptive trade practices. Bingham was initially joined but subsequently dismissed from the complaint. Defendants filed a motion for summary judgment claiming that no valid lease existed because the wives of the defendants did not sign the lease, the secretary of plaintiff corporation signed the lease without affixing a corporate seal, and that plaintiff\u2019s failure to record the lease constituted contributory negligence. Plaintiff also filed a motion for summary judgment on the issue of liability claiming that defendants breached the new lease. Plaintiff presented depositions which claimed that defendants signed as agents of their wives and with their wives\u2019 authority. A hearing was held on 14 May 2001 and continued to 11 June 2001. The trial court granted summary judgment in favor of defendants and denied summary judgment in favor of plaintiff. Plaintiff appeals.\nII. Issues\nPlaintiff assigns as error the trial court\u2019s (1) granting defendants\u2019 motion for summary judgment, and (2) denying plaintiff\u2019s motion for summary judgment.\nIII. Summary Judgment\nPlaintiff contends that it \u201csubmitted sufficient evidence to create a triable issue of fact as to whether or not there was a valid contract . . . and whether that contract was breached by [defendants].\u201d We agree.\nSummary judgment should only be granted where the evidence, taken in a light most favorable to the non-moving party, shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Langley v. Moore, 64 N.C. App. 520, 522, 307 S.E.2d 817, 819 (1983). To show a breach of contract, plaintiff must show the existence of a valid contract and a breach of the terms of that contract. Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000).\nDefendants claim that no valid contract exists between the parties because the old lease \u201cdied on the vine\u201d when the option in the old lease was not extended within the time required and that the new lease alone is not sufficient as a valid lease. In Sherwin-Williams Co. v. ASBN, Inc., 145 N.C. App. 176, 550 S.E.2d 527 (2001), disc. rev. denied, 355 N.C. 215, 560 S.E.2d 137 (2002), this Court addressed the question of \u201cwhether a retroactive lease ,\u2018ext\u00e9nsion\u2019 executed after the expiration of a lease term constitutes a continuation of the original lease or a new lease.\u201d 145 N.C. App. at 178, 550 S.E.2d at 529. This Court held that the extension was a new lease and not a retroactive extension or exercise of an option. Id. at 179, 550 S.E.2d at 530. We agree with the reasoning of Sherwin-Williams. We hold that the \u201cExercise of Lease Option on New River Property\u201d is a separate new lease and not a belated exercise of an expired option to extend contained in the old lease.\nA. Validity of the New Lease\nFor a lease with a term of three years or more to be valid, the essential terms of the contract must be in writing and signed by the party being charged. N.C. Gen. Stat. \u00a7 22-2 (2001). Our Supreme Court has long held that the party being charged is \u201cthe one against whom relief is sought; and if the contract is sufficient to bind him, he can be proceeded against though the other could not be held, because as to him the statute is not sufficiently complied with.\u201d Lewis v. Murray, 177 N.C. 17, 19, 97 S.E. 750, 751 (1919). A valid lease contains four essential elements: (1) identity of landlord and tenant, (2) description of land to be leased, (3) a statement of the term of the lease, and (4) rental or other consideration to be paid. Fuller v. Southland Corp., 57 N.C. App. 1, 8, 290 S.E.2d 754, 759, disc. rev. denied, 306 N.C. 556, 294 S.E.2d 223 (1982). A writing, incomplete in itself, is sufficient under the statute \u201cif the contract provisions can be determined from separate but related writings.\u201d Greenberg v. Bailey, 14 N.C. App. 34, 37, 187 S.E.2d 505, 507 (1972) (citations omitted). \u201cThe writings need not be physically connected if they contain internal reference to other writings.\u201d Fuller, 57 N.C. App. at 7, 290 S.E.2d at 758. While a lease must be recorded to be valid against a lien creditor or a third-party purchaser for value, recordation is not an element of a valid lease agreement between the original parties to the agreement. N.C. Gen. Stat. \u00a7 47-18.\n1.Identity of Landlord and Tenant\nThe new lease stated, \u201cThis agreement is entered into by all former parties so listed in the original lease to be effective immediately.\u201d Plaintiff was specifically named in the new lease. The new lease satisfies the Statute of Frauds requirement of the identity of the landlord and tenant.\n2.Description of the Land\nThe new lease incorporated the old lease by stating \u201cThe contents and provisions of the existing lease have not changed otherwise.\u201d The old lease provided a definite description of the property leased. As the essential terms of the lease do not have to be contained in one writing to be valid, the new lease sufficiently incorporated the description contained in the old lease to satisfy the Statute of Frauds as to the description of the property leased. Fuller, 57 N.C. App. at 4, 290 S.E.2d at 758.\n3.Term of the Lease\nThe new lease provides for a five year term \u201cplus any additional time required to grow the existing trees on the prbperty to marketable size. This is in the event that after the 5 years, there is still a number of trees under marketable size, as determined by the seller, PURCHASE NURSERY, INC.\u201d Defendants contend that this creates an indefinite time period for the contract and creates a contract which lacks mutuality. We disagree.\nThe new lease creates a five year lease which can only be extended if the trees are not of \u201cmarketable size\u201d. Plaintiff agreed not to plant new trees on the property and only harvest the trees in existence at the execution of the new lease. According to the affidavit of the president of plaintiff, \u201cmarketable size\u201d is a term of art in the Christmas tree business and has a definite meaning. We hold that in the context of the agricultural lease, the new lease does not fail for lack of definiteness in duration of the term nor for lack of mutuality of contract. There is sufficient evidence to create a question of fact whether there was a definite term.\n4. Rents and Other Consideration\nThe new lease incorporated provisions of the old lease by stating \u201cThe contents and provisions of the existing lease have not changed otherwise.\u201d The old lease provided with specificity for the amount of annual rents and percentage rents to be paid by plaintiff. The rental reserved did not change. The new lease allowed for plaintiff to harvest trees already in existence, but did not allow plaintiff to plant new trees. The new lease satisfied the Statute of Frauds by incorporating the rental consideration from the old lease.\n5. Signatures\na. Wives of Defendants\nThe new lease was signed by defendants Edgerton, Buchanan, and Smithey but not by their wives. Defendants assert that the new lease is unenforceable and void because they are not signed by their respective spouses. In their brief, defendants rely on N.C. Gen. Stat. \u00a7 39-13.6(a), which states \u201cNeither spouse may bargain, sell, lease, mortgage, transfer, convey or in any manner encumber any property so held [in tenancy by the entirety] without the written joinder of the other spouse.\u201d\nThe North Carolina Rules of Civil Procedure require that a party shall affirmatively set forth any matter constituting an avoidance or affirmative defense. N.C.G.S. \u00a7 1A-1, Rule 8(c). \u201cFailure to raise an affirmative defense in the pleadings generally results in a waiver thereof.\u201d Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998) (citations omitted). Neither defendants\u2019 original nor amended answer included an affirmative defense based upon N.C. Gen. Stat. \u00a7 39-13.6. Defendants waived this defense by failing to affirmatively assert this defense.\nb. Corporation\nPlaintiff signed the new lease as \u201cPurchase Nursery, Inc. Sec/ Debra V. Yates.\u201d Defendants do not contend on appeal that this signature is insufficient to bind the corporation to the contract. They only claim, without citing authority, that \u201cThe signature of the president of Purchase Nursery, Inc., does not appear on the extension.\u201d As plaintiff is not the party against whom enforcement of the lease is sought, the nature or existence of plaintiffs valid signature is immaterial. Lewis, 177 N.C. at 19, 97 S.E. at 751.\nIV. Conclusion\nPlaintiff presented sufficient evidence to establish a genuine issue of material fact as to defendants\u2019 breach of a valid lease. We reverse the trial court\u2019s grant of summary judgment in favor of defendants. We affirm the trial court\u2019s denial of plaintiff\u2019s motion for summary judgment. We remand the case to the trial court to determine whether defendants breached a valid lease and to determine the claims of fraudulent concealment and unfair and deceptive trade practices against defendants.\nAffirmed in part, reversed in part, and remanded.\nJudges MARTIN and THOMAS concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Di Santi Watson & Capua, by Frank C. Wilson, III, for plaintiff-appellant.", "Vannoy & Reeves, PLLC, by David Jolly, for defendants-appellees." ], "corrections": "", "head_matter": "PURCHASE NURSERY, INC., a corporation, PAUL VANCE and FAYE J. VANCE, Plaintiffs v. WENDELL H. EDGERTON, MARGERY A. EDGERTON, LOREN BUCHANAN, NANCY G. BUCHANAN, ROBERT S. SMITHEY, DAVIDA B. SMITHEY, BINGHAM REAL ESTATE, L.P., a Limited Partnership, MICHAEL WAYNE BINGHAM, and CINDY V. BINGHAM, Defendants\nNo. COA01-1364\n(Filed 17 September 2002)\n1. Landlord and Tenant\u2014 lease \u2014 new agreement rather than option exercise\nA lease agreement was a new, separate lease rather than the belated exercise of an expired option in an old lease.\n2. Landlord and Tenant\u2014 lease \u2014 essential elements\nA valid lease contains the identity of landlord and tenant; a description of land to .be leased; a statement of the term of the lease; and the rental or other consideration to be paid. A writing is sufficient if the contract provisions can be determined from separate but related writings.\n3. Landlord and Tenant\u2014 lease \u2014 identity of parties \u2014 reference to prior lease\nA lease satisfied the statute of frauds requirement of identity of landlord and tenant where it stated that it was entered into by all the parties to the former lease and plaintiff was specifically named in the new lease.\n4. Landlord and Tenant\u2014 lease \u2014 description\u2014reference to prior lease\nA lease satisfied the statute of frauds where it incorporated the description from an old lease.\n5. Landlord and Tenant\u2014 agricultural lease \u2014 term\u2014 definiteness\nA lease for a Christmas tree farm did not fail for lack of a definite term or for lack of mutuality of contract where the term was five years plus the additional time required to grow existing trees to a marketable size. There was evidence that \u201cmarketable size\u201d is a term of art and has a definite meaning in the Christmas tree business.\n6. Landlord and Tenant\u2014 lease \u2014 consideration\u2014reference to prior lease\nA new lease satisfied the Statute of Frauds by incorporating the rental consideration from the old lease.\n7. Pleadings\u2014 defense to lease \u2014 waived by not pleading\nDefendants in a lease action waived the defense that the lease was not signed by their spouses where they did not affirmatively assert the defense in their original or amended answer.\n8. Landlord and Tenant\u2014 lease \u2014 sufficiency of signatures for party not charged \u2014 immaterial\nThe question of whether the signature of the secretary of plaintiff-corporation on a lease was sufficient without the president\u2019s signature was immaterial because plaintiff was not the party against whom enforcement of the lease was sought.\nAppeal by plaintiff from judgment entered 26 June 2001 by Judge Ronald K. Payne in Avery County Superior Court. Heard in the Court of Appeals 22 August 2002.\nDi Santi Watson & Capua, by Frank C. Wilson, III, for plaintiff-appellant.\nVannoy & Reeves, PLLC, by David Jolly, for defendants-appellees." }, "file_name": "0156-01", "first_page_order": 186, "last_page_order": 193 }