{ "id": 8410687, "name": "THE CURRITUCK ASSOCIATES-RESIDENTIAL PARTNERSHIP, a North Carolina general partnership, Plaintiff-Appellee v. RAY E. HOLLOWELL, JR., d/b/a SHALLOWBAG BAY DEVELOPMENT COMPANY, Defendant-Appellant v. KITTY HAWK ENTERPRISES, INC., Third-Party Defendant; SHALLOWBAG BAY DEVELOPMENT COMPANY, LLC, Plaintiff-Appellant v. THE CURRITUCK ASSOCIATES-RESIDENTIAL PARTNERSHIP, Defendant-Appellee", "name_abbreviation": "Currituck Associates-Residential Partnership v. Hollowell", "decision_date": "2004-09-07", "docket_number": "No. COA03-1082; No. COA03-1085", "first_page": "17", "last_page": "34", "citations": [ { "type": "official", "cite": "166 N.C. App. 17" } ], "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": "574 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "691", "parenthetical": "quoting 17 Am. Jur. 2d Contracts \u00a7 401 (1964)" }, { "page": "691" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 598", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251266 ], "year": 2002, "pin_cites": [ { "page": "601", "parenthetical": "quoting 17 Am. Jur. 2d Contracts \u00a7 401 (1964)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0598-01" ] }, { "cite": "274 S.E.2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "209" } ], "opinion_index": 0 }, { "cite": "302 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564464 ], "year": 1981, "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0207-01" ] }, { "cite": "534 S.E.2d 653", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2000, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 827", "category": "reporters:state", "reporter": "N.C. 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Stat. \u00a7 22-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 2003, "opinion_index": 0 }, { "cite": "139 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "263 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570897 ], "year": 1965, "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0470-01" ] }, { "cite": "208 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "695" } ], "opinion_index": 0 }, { "cite": "285 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569825 ], "year": 1974, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0730-01" ] }, { "cite": "266 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "602" } ], "opinion_index": 0 }, { "cite": "300 N.C. 204", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560941 ], "year": 1980, "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0204-01" ] }, { "cite": "269 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "306" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551726 ], "year": 1980, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0553-01" ] }, { "cite": "493 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1997, "pin_cites": [ { "page": "796" }, { "page": "796" }, { "page": "797" }, { "page": "796-97", "parenthetical": "citation omitted" }, { "page": "797" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 130", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11652619 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "136-37" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0130-01" ] }, { "cite": "424 S.E.2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "333 N.C. 167", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2546761, 2546403, 2550351, 2547351 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/333/0167-03", "/nc/333/0167-02", "/nc/333/0167-04", "/nc/333/0167-01" ] }, { "cite": "407 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 268", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555208, 2555276, 2553460, 2555999, 2555647 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0268-05", "/nc/329/0268-04", "/nc/329/0268-01", "/nc/329/0268-02", "/nc/329/0268-03" ] }, { "cite": "399 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "141" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 362", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527724 ], "year": 1991, "pin_cites": [ { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0362-01" ] }, { "cite": "362 S.E.2d 870", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "872", "parenthetical": "stating that \"failure to give the number of the rule is not necessarily fatal\" to a motion or claim" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 257", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358076 ], "year": 1987, "pin_cites": [ { "page": "262", "parenthetical": "stating that \"failure to give the number of the rule is not necessarily fatal\" to a motion or claim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0257-01" ] }, { "cite": "252 S.E.2d 799", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "802" } ], "opinion_index": 0 }, { "cite": "297 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566321 ], "year": 1979, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0001-01" ] }, { "cite": "217 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "opinion_index": 1 }, { "cite": "26 N.C. App. 580", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554508 ], "year": 1975, "opinion_index": 1, "case_paths": [ "/nc-app/26/0580-01" ] }, { "cite": "548 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "500" } ], "opinion_index": 1 }, { "cite": "353 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135733 ], "year": 2001, "opinion_index": 1, "case_paths": [ "/nc/353/0690-01" ] }, { "cite": "265 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "190" } ], "opinion_index": 1 }, { "cite": "300 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560050 ], "year": 1980, "pin_cites": [ { "page": "187" } ], "opinion_index": 1, "case_paths": [ "/nc/300/0186-01" ] }, { "cite": "522 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "121", "parenthetical": "citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)" } ], "opinion_index": 1 }, { "cite": "135 N.C. App. 772", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11243047 ], "year": 1999, "pin_cites": [ { "page": "775", "parenthetical": "citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)" } ], "opinion_index": 1, "case_paths": [ "/nc-app/135/0772-01" ] }, { "cite": "139 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "548" } ], "opinion_index": 1 }, { "cite": "263 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570897 ], "year": 1965, "opinion_index": 1, "case_paths": [ "/nc/263/0470-01" ] }, { "cite": "208 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "695" } ], "opinion_index": 1 }, { "cite": "285 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569825 ], "year": 1974, "pin_cites": [ { "page": "734" } ], "opinion_index": 1, "case_paths": [ "/nc/285/0730-01" ] }, { "cite": "269 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "306" } ], "opinion_index": 1 }, { "cite": "48 N.C. App. 553", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551726 ], "year": 1980, "pin_cites": [ { "page": "558" } ], "opinion_index": 1, "case_paths": [ "/nc-app/48/0553-01" ] } ], "analysis": { "cardinality": 1273, "char_count": 40343, "ocr_confidence": 0.751, "pagerank": { "raw": 2.467594580615197e-07, "percentile": 0.8061888936382006 }, "sha256": "c7d3ffe064e92299188f06338b8fa9c991ac65e04ed94b09c4ae5348bc6d64ce", "simhash": "1:ab29647e3c48bfca", "word_count": 6461 }, "last_updated": "2023-07-14T18:02:59.875915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN concurs.", "Judge HUNTER dissents." ], "parties": [ "THE CURRITUCK ASSOCIATES\u2014RESIDENTIAL PARTNERSHIP, a North Carolina general partnership, Plaintiff-Appellee v. RAY E. HOLLOWELL, JR., d/b/a SHALLOWBAG BAY DEVELOPMENT COMPANY, Defendant-Appellant v. KITTY HAWK ENTERPRISES, INC., Third-Party Defendant SHALLOWBAG BAY DEVELOPMENT COMPANY, LLC, Plaintiff-Appellant v. THE CURRITUCK ASSOCIATES\u2014RESIDENTIAL PARTNERSHIP, Defendant-Appellee" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nIn separate appeals, Shallowbag Bay Development Company, L.L.C. (\u201cShallowbag\u201d) and Ray E. Hollowell, Jr. (\u201cHollowell\u201d) (collectively, \u201cappellants\u201d) appeal the trial court order dismissing their claims. Prior to argument, the appeals were consolidated pursuant to N.C.R. App. P. 40 (2004). After reviewing the merits of the consolidated appeal, we affirm the trial court\u2019s order.\nThe facts and procedural history pertinent to the instant appeal are as follows: In February 1996, The Currituck Associates-Residential Partnership (\u201cappellee\u201d) and appellants entered into a contract whereby appellee would sell appellants a 9.2 acre parcel of property located in Currituck County (\u201cthe contract\u201d). The parcel was located within The Currituck Club (\u201cCurrituck Club\u201d) a Planned Unit Development in Currituck County. Portions of Currituck Club had previously been developed by appellee. Appellants planned to name the parcel Windswept Ridge Villas (\u201cWindswept Ridge\u201d) and construct ninety-six residential condominium units on it.\nThe contract contemplated a six-year \u201ctake down\u201d of seven pieces of the property designated \u201cpads\u201d by the parties. On 20 March 1997, the parties closed the sale of the first pad. After two modifications of the contract, the parties closed the sale of the second pad on 12 January 1999. On 1 September 1999, the parties closed the purchase of the third pad. However, the parties failed to close the sale of the fourth pad, which was contemplated for Fall 2000.\nOn 30 April 2001, appellee notified Hollowell that appellants were in default under the contract. On 1 June 2001, appellee filed a Complaint against Hollowell and requested that the trial court declare that \u201cHollowell materially breached the [contract] and [appellee] is therefore discharged from further obligations thereunder or, in the alternative, for a declaration of the rights and duties of the parties under the [contract][.]\u201d Hollowell filed an Answer and Counterclaim on 20 September 2001, claiming that appellee had breached the contract and requesting damages and specific performance of the terms of the contract. That same day, Shallowbag Bay filed a Complaint against appellee, alleging the same breach and requesting the same remedies as Hollowell\u2019s Answer and Counterclaim.\nAppellee initiated discovery in the litigation and the parties scheduled witness depositions for Summer and Fall 2002. On 28 August 2002, appellants\u2019 counsel extended a settlement offer to appellee, whereby appellants would close on the remaining pads by 15 January 2002 for an agreed upon price. In a letter dated 30 August 2002, appellee\u2019s counsel responded to the offer and accepted many of its terms. Appellee also proposed that it have an option to repurchase the third pad if appellants failed to close the purchase of pads four through six by 15 January 2003. On 30 August 2002, appellants\u2019 counsel sent appellee\u2019s counsel a letter accepting appellee\u2019s proposal. Appellants suggested that the only issue preventing the parties from settling their claims was the marketing of the condominiums after purchase.\nOn 3 September 2002, appellee\u2019s counsel confirmed via email that an agreement between the parties had been reached regarding appellants\u2019 marketing of Windswept Ridge. The email also stated that \u201cin view of our settlement, please permit this email to confirm [that] the depositions scheduled for later this week will not take place.\u201d On 6 September 2002, appellee\u2019s counsel sent an email to appellants\u2019 counsel, attaching a \u201cMutual Release and Settlement Agreement\u201d that outlined the parties\u2019 agreement.\nOn 2 October 2002, appellee\u2019s counsel solicited appellants\u2019 comments regarding the \u201cMutual Release and Settlement Agreement.\u201d Appellants\u2019 counsel responded that he \u201chad hoped to have the draft purchase agreement in place for attachment\u201d to his response, but that he would nevertheless \u201cforward the settlement agreement to [appellee\u2019s counsel] [on 3 October 2002] with or without [the comments].\u201d On 3 October 2002, appellants\u2019 counsel sent appellee\u2019s counsel an email describing his \u201cchanges to the initial draft of the settlement agreement.\u201d Attached to the email was a copy of the \u201cred-lined changes.\u201d The email stated that appellants\u2019 counsel \u201cmust reserve the right to supplement or change [his] comments after [Hollowell\u2019s] review.\u201d The email outlined the \u201crevised document\u201d and noted that appellant \u201cwould like to have a full blown purchase contract\u201d replace a portion of the \u201cMutual Release and Settlement Agreement\u201d that concerned the purchase of pads four through six. On 16 October 2002, appellee\u2019s counsel responded to appellants\u2019 email and outlined various \u201cpoints to discuss\u201d concerning the agreement.\nAt appellants\u2019 request, Quible and Associates, P.C. (\u201cQuible\u201d) prepared data regarding Currituck Club\u2019s water system in November 2002. After reading Quible\u2019s report, appellants became concerned about the supply of potable water in Currituck Club. After appellants\u2019 counsel notified appellee\u2019s counsel about these concerns, the parties began communications regarding the execution of a storm water management easement and deed.\nOn 16 December 2002, appellee\u2019s counsel sent appellants\u2019 counsel an email inquiring whether the \u201cdeal [was] going to close by Jan. 15.\u201d Appellee\u2019s counsel indicated that he was \u201cstarting to have [] doubts that [appellants] [were] going to purchase Pads 4-6.\u201d On 23 December 2002, appellants\u2019 counsel sent appellee\u2019s counsel a \u201cdraft contract\u201d outlining the terms of a \u201cPurchase Agreement.\u201d Appellee\u2019s counsel responded with two emails on 23 December 2002. The first email included \u201ccomments on the Purchase Agreement.\u201d The second email contained the following statements:\nThe parties have a settlement. [Appellants] cannot now come up with some \u201cissues\u201d to try to back out of the agreement.\nI hope we\u2019re not getting to this point, but I do want to make sure your client realizes that this agreement will be enforced.\nThe parties did not close the purchase of pads four through six by 15 January 2003. Instead, their counsel continued to negotiate terms of the storm water easement and deed. In Spring 2003, appellants became increasingly concerned about the adequacy of the potable water available to Currituck Club, as well as legal issues surrounding Currituck Club\u2019s water supplier. On 7 March 2003, appellee informed appellants that if they did not close the purchase of pads four through six by 21 March 2003, it would exercise its option to repurchase pad three.\nThe parties failed to close the purchase of pads four through six by 21 March 2003, and on 4 April 2003, appellee filed a Motion to Enforce Settlement Agreement in Dare County Superior Court. In an order filed 22 May 2003, the trial court concluded that the parties had reached an agreement in September 2002 that satisfied the requirements of the statute of frauds. The trial court then granted appellee\u2019s motion to enforce the settlement agreement, and it ordered that appellee be given sixty days to exercise its option to repurchase pad three. The trial court also dismissed appellants\u2019 claims with prejudice and taxed attorneys\u2019 fees and costs against appellants. It is from this order that appellants appeal.\nThe issues on appeal are: (I) whether the trial court lacked jurisdiction and authority to entertain and grant appellee\u2019s Motion to Enforce Settlement Agreement; and (II) whether the trial court erred in granting appellee\u2019s Motion to Enforce Settlement Agreement.\nAppellants first argue that the trial court lacked jurisdiction and authority to consider appellee\u2019s Motion to Enforce Settlement Agreement. Appellants contend that because appellee failed to cite a specific rule of civil procedure in its Motion to Enforce Settlement Agreement, the trial court lacked jurisdiction and authority to enter the order. We disagree.\nNorth Carolina\u2019s superior and district courts require that \u201c[a]ll motions, written or oral, shall state the rule number or numbers under which the movant is proceeding.\u201d General Rules of Practice For the Superior and District Courts, Rule 6 (2003). However, N.C. Gen. Stat. \u00a7 1A-1, Rule 7(b)(1) (2003) requires only that motions to the trial court \u201cstate with particularity the grounds therefor, and . . . set forth the relief or order sought.\u201d Thus, since \u201c[t]he directive of [Rule 6] has the salutory purpose of ensuring that the [trial] court and the parties are aware of the grounds upon which the movant is relying,\u201d a motion that does not comply with Rule 6 is not defective if the parties are given adequate notice. Wood v. Wood, 297 N.C. 1, 6, 252 S.E.2d 799, 802 (1979); see Home Health and Hospice Care, Inc. v. Meyer, 88 N.C. App. 257, 262, 362 S.E.2d 870, 872 (1987) (stating that \u201cfailure to give the number of the rule is not necessarily fatal\u201d to a motion or claim). Therefore, although \u201cit would be of great benefit to the trial court and this appellate court for counsel to name and number the rule pursuant to which the motion is made,\u201d Id., this Court only requires that \u201cthe grounds for the motion and the relief sought ... be consistent with the Rules of Civil Procedure.\u201d Gallbronner v. Mason, 101 N.C. App. 362, 366, 399 S.E.2d 139, 141, disc. review denied, 329 N.C. 268, 407 S.E.2d 835 (1991), writ of mandamus dismissed, 333 N.C. 167, 424 S.E.2d 909 (1992).\nIn the instant case, appellee\u2019s motion requested that the trial court enforce the settlement agreement and order the following:\n(a) That the Contract between [appellee] and [appellants] is terminated and that [appellee] is under no obligation to sell Pads 4-6 to [appellants].\n(b) That the Notice of Lis Pendens filed by [appellants] against [appellee\u2019s] property be canceled.\n(c) That from the date the order enforcing the settlement agreement is filed with the Clerk of Court, that [appellee] have 60 days from that date in which to exercise an option to purchase Pad 3 of [Windswept Ridge] from [appellants] for $585,000. If such option is exercised, [appellee] would be required to close on the purchase of Pad 3 at [Windswept Ridge] from [appellant] within 60 days from the date that such option is exercised.\n(d) That all claims for relief asserted by [appellant] against [appellee] be dismissed with prejudice and that [appellee], its owners, partners, managers, employees and agents be released from any and all such claims asserted by [appellants] in the two lawsuits.\n(e) That the Court enforce any other terms of the settlement agreement it deems just and proper.\n(f) That the Court tax attorneys\u2019 fees and costs against [appellant] that are associated with the enforcement of the parties\u2019 settlement agreement.\nIn State ex rel. Howes v. Ormond Oil & Gas Co., 128 N.C. App. 130, 493 S.E.2d 793 (1997), the defendant appealed the trial court order requiring it to comply with the terms of a consent judgment that had been proposed by the State. After reviewing the record, we concluded that the defendant did not agree to the terms of the consent judgment, and that the consent judgment was not an \u201caccurate memorialization of the parties\u2019 intent regarding their [prior] settlement agreement.\u201d Id. at 135, 493 S.E.2d at 796. Thus, we held that the trial court erred in incorporating the terms of the proposed consent judgment into its order, and we vacated the trial court order. Id. at 136, 493 S.E.2d at 796. Although the State had filed its motion in the same action the agreement purported to dismiss, we allowed the trial court to consider whether the State was entitled to specific performance of the settlement agreement on remand. Id. at 137, 493 S.E.2d at 797. Appellants contend that this instruction was dicta, and that this Court has not yet decided whether a party may file a motion in the cause to enforce a settlement agreement in lieu of dismissing the cause and filing a second claim for breach of contract. We disagree.\nIn support of our instructions in Howes, we stated:\nAlthough our courts have not laid down a precise method for the enforcement of [settlement agreements], the general rule in other jurisdictions is that a party may enforce a settlement agreement by filing a voluntary dismissal of its original claim and then instituting another action on the contract, or it may simply seek to enforce the settlement agreement \u201cby petition or motion in the original action.\u201d . . . Here, the parties and their settlement agreement were still before the trial court when the State sought entry of the proposed consent judgment which, as the court\u2019s judgment makes clear, was actually a demand for specific performance of ,the parties\u2019 settlement agreement. By asking the court to enter judgment in accordance with what it believed were the terms of the parties\u2019 settlement agreement, the State evidenced its readiness to comply with the terms of that agreement and Ormond\u2019s refusal to do likewise. The trial court having concluded that the State was entitled to have the parties\u2019 settlement agreement enforced, we hold that the trial court may enter a judgment in this case in accordance with the terms found in the parties\u2019 settlement agreement.\n128 N.C. App. at 136-37, 493 S.E.2d at 796-97 (citation omitted). Thus, we are bound by our previous determination that a settlement agreement may be enforced by filing a new action or by filing a motion in the cause, even if \u201cthe parties and their settlement agreement [are] still before the trial court.\u201d Id. at 137, 493 S.E.2d at 797.\nIn the instant case, appellee\u2019s motion was in writing and filed during the original action. It described the contract between the parties and the negotiations between the parties that led to the alleged agreement. Attached to the motion were approximately fifty pages of correspondence between the parties. The motion clearly sought to enforce the settlement agreement pursuant to case law, and to dismiss appellants\u2019 claims pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (2003). Thus, appellants were notified of the impetus of the motion and the relief sought, and they were given a chance to respond. Therefore, we conclude that appellee\u2019s motion satisfied the mandates requiring particularity in pleadings. Accordingly, we hold that the trial court had jurisdiction over appellee\u2019s motion, and that its order granting the motion did not deprive appellants of their due process rights.\nAppellants next argue that the trial court erred in granting appellee\u2019s Motion to Enforce Settlement Agreement. Appellants assert that the correspondence between their counsel and appellee\u2019s counsel only established an \u201cagreement to agree\u201d between the parties, not an enforceable settlement agreement. We disagree.\nIn the instant case, on 28 August 2002, appellants\u2019 counsel sent appellee\u2019s counsel a letter regarding the then-pending litigation. That letter reads, in pertinent part:\nPursuant to our recent discussions, I have revisited settlement options with [appellants], [Appellants] [are] now willing to settle through termination of the current contract (and its modifications) and the execution of a new agreement stipulating that on or before January 15, 2003, the parties will perform as complete the following:\n(2) [Appellants] will close on the purchase of the three remaining pads ... at a cost of $472,500 each for a total of $1,417,500.\nI believe all -of the items stated above are consistent with terms stated in your correspondence to me dated February 25 and March 28, 2002. Please review this offer with your client and contact me by Friday at noon.\nThe parties engaged in subsequent telephone conversations, and on 30 August 2002, appellee\u2019s counsel sent appellants\u2019 counsel a letter stating:\nI just want to follow up on our telephone conversation of August 30 regarding the possible settlement of the litigation. ... I am going to refer to your August 28, 2002 letter to me because that contains the most recent settlement parameters.\n[The letter then reproduces the seven \u201csettlement parameters\u201d contained in seven paragraphs of the 28 August 2002 letter. All but one of the parameters, contained in paragraph five, was followed by bold type that stated \u201cThis is acceptable to [appellee].\u201d]\nAs you can see, [appellee] is in essential agreement with the terms outlined in your letter in six of the seven paragraphs. The only substantial difference is that we have given you a more detailed proposal concerning the issues contained in Paragraph 5. . . . Hopefully, the parties can come together[.]\nFinally, [appellee] has one additional term. As you know, Pad 3 is currently owned by [appellants], but it has not been improved. Should [appellants] not close by January 15, 2003 on the remaining three pads, [appellee] would have the option to buy back Pad 3 for $585,000. It would have 60 days from January 15, 2003 to exercise that option and 60 days after the date of exercise to close on the purchase of Pad 3.\nI believe these are the main items that need to be agreed upon by the parties and I look forward to hearing from you and your client as soon as possible. At the present time, I would like to leave the deposition for Mr. Hollowell, which is scheduled for September 4, set so that we can take it if the parties cannot settle their claims before that time.\nThat same day, appellants\u2019 counsel responded with a letter reading in pertinent part:\n[The parties] are very near agreement. First, the additional term regarding the repurchase of pad 3 is acceptable.\nThe sole matter remaining in dispute is whether [appellants] will be permitted to staff and otherwise market a model unit. Quite simply, we need to be able to market villas in the same manner that they have been marketed up to now. . . .\nPlease review this letter with your client and contact me. If you would like to speak with me later today, please call [.]\nOn 3 September 2002, appellants\u2019 counsel sent, appellee\u2019s counsel an email stating:\nI received your message and am pleased that we have reached an agreement. Please permit this email to confirm that Mr. Hollowell will hire an inside marketing agent/broker to handle sales of the villas and will not engage the services of an independent, third-party brokerage company. The remaining terms of the settlement agreement are consistent with those stated in our recent series of correspondence.\nFurther, in view of our settlement, please permit this email to confirm the depositions scheduled for later this week will not take place. . . .\nOn 6 September 2002, appellee\u2019s counsel sent the following email to appellants\u2019 counsel:\nHere\u2019s the Mutual Release and Settlement Agreement I\u2019ve drafted. Please contact me ASAP and let me know if any changes are necessary. If not, I\u2019ll have duplicate originals executed by our folks and you can have [appellant] do the same.\nBased upon these communications, the trial court concluded that a valid settlement agreement existed between the parties on 6 September 2002.\nAppellants first contend that the trial court erred in finding that the parties had reached a meeting of the minds. We disagree.\nIf supported by competent evidence, a trial court\u2019s findings of fact are conclusive on appeal. Hill v. Town of Hillsborough, 48 N.C. App. 553, 558, 269 S.E.2d 303, 306 (1980). \u201c[M]utual assent and the effectuation of the parties\u2019 intent is normally accomplished through the mechanism of offer and acceptance.\u201d Snyder v. Freeman, 300 N.C. 204, 218, 266 S.E.2d 593, 602 (1980). In the instant case, the 28 August 2002 letter established appellants\u2019 willingness to \u201crevisit\u201d settlement options and their attempt to enter into a new agreement. The letter concluded by acknowledging its status as an \u201coffer.\u201d In appellee\u2019s response to this letter on 30 August 2002, appellee\u2019s counsel acknowledged a possibility of settlement between the parties, accepted all but one of appellants\u2019 offered terms, and proposed an additional term. In his response sent the same day, appellants\u2019 counsel acknowledged that the parties were \u201cvery near agreement,\u201d and immediately accepted the additional term proposed by appellee. Appellants\u2019 counsel then discussed his client\u2019s position on the \u201csole matter remaining in dispute,\u201d and he invited appellee\u2019s counsel to call him with a response as early as that afternoon. In the email sent to appellee\u2019s counsel on 3 September 2002, appellants\u2019 counsel stated that he was \u201cpleased that [the parties] [had] reached an agreement.\u201d The email \u201cconfirm[ed]\u201d that the \u201csole matter remaining in dispute\u201d on 30 August 2002 had been settled, and, \u201cin view of [the] settlement,\u201d it \u201cconfirmfed] the .depositions scheduled for later [that] week w[ould] not take place.\u201d Thus, a valid offer was made and accepted in the correspondence between the parties. Therefore, we conclude the correspondence sufficiently supports the trial court\u2019s finding that the parties reached a meeting of minds.\nWhile a meeting of the minds is essential to form an agreement between the parties, a contract is \u201cnugatory and void for indefiniteness\u201d if it leaves any \u201cmaterial portions open for future agreement.\u201d Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974). Defendants contend the agreement in the instant case is null and void because no final writing was ever executed by the parties. However, noting that the statute of frauds \u201cdoes not require all of the provisions of the contract to be set out in a single instrument[,]\u201d our Supreme Court has stated that \u201c[t]he memorandum ... is sufficient if the contract provisions can be determined from separate but related writings.\u201d Hines v. Tripp, 263 N.C. 470, 474, 139 S.E.2d 545, 548 (1965); N.C. Gen. Stat. \u00a7 22-2 (2003). We conclude the correspondence in the instant case was sufficient to satisfy the requirements of Hines.\nThe 28 August 2002 letter from appellants\u2019 counsel to appellee\u2019s counsel contained the purchase price of pads four through six as well as the date by which the purchase must have been closed. Both the 28 August 2002 letter and appellee\u2019s 30 August 2002 reply contained a sufficient description of the land to be sold. Each correspondence made clear that appellants were the buyers and appellee was the seller. Thus, the correspondence identified the parties, the purchase price, and the property to be sold. \u201cThese are the essential elements of the contract.\u201d Yaggy v. B.V.D. Co., 7 N.C. App. 590, 600, 173 S.E.2d 496, 503, cert. denied, 276 N.C. 728 (1970). Therefore, we conclude that the trial court did not err in finding that the terms of the settlement agreement could be determined from the correspondence between the parties\u2019 attorneys.\nAppellants also contend that because the settlement agreement in the instant case was agreed to by their counsel it was not \u201csigned by the party to be charged therewith,\u201d and therefore violates the statute of frauds. N.C. Gen. Stat. \u00a7 22-2. We disagree.\n\u201c[T]he statute [of frauds] expressly recognizes that the writing which it requires may be signed by an agent, and it has long been established that the authority of the agent to do so need not be in writing.\u201d Yaggy, 7 N.C. App. at 600-01, 173 S.E.2d at 503. Nevertheless, \u201c[s]pecial authorization from the client is required before an attorney may enter into an agreement discharging or terminating a cause of action on the client\u2019s behalf.\u201d Harris v. Ray Johnson Constr. Co., 139 N.C. App. 827, 829, 534 S.E.2d 653, 655 (2000). However, \u201cthere is a presumption in North Carolina in favor of an attorney\u2019s authority to act for the client he professes to represent.\u201d Id. Thus, \u201c[o]ne who challenges the actions of an attorney as being unauthorized has the burden of rebutting this presumption and proving lack of authority to the satisfaction of the court.\u201d Id.\nIn the instant case, as detailed above, the correspondence between counsel commenced with appellants\u2019 counsel making an offer on appellants\u2019 behalf, after first noting that he had \u201crevisited settlement options\u201d with appellants and that appellants were \u201cwilling to settle[.]\u201d Hollowell was copied via facsimile and U.S. mail on each correspondence letter sent^to appellee\u2019s counsel, including the 28 August 2002 letter opening negotiations and the 30 August 2002 letter stating that \u201c[w]e have reviewed your letter and are very near agreement.\u201d Thus, we conclude sufficient evidence exists in the instant case to support the trial court\u2019s determination that appellants\u2019 counsel had the authority to bind his clients. Furthermore, appellants have not rebutted the presumption that their counsel acted on their behalf. Therefore, we hold that the trial court did not err in making its conclusion that the settlement agreement in the instant case was a valid contract.\nAppellants maintain that the potential problems with the supply of water for Currituck Club ruined the value of the property they were to purchase under the settlement agreement. Appellants assert that because their purpose in purchasing the property was frustrated, the settlement agreement should be rescinded even if we conclude it is valid. However, assuming arguendo that a water shortage would destroy the value of the property included in the settlement agreement, we nevertheless decline to rescind the contract in the instant case.\nThe doctrine of frustration of purpose operates as a defense to a contract only if the frustrating event was not allocated to the complaining party by the terms of the contract and was not reasonably foreseeable to the party. Brewer v. School House, Ltd., 302 N.C. 207, 211, 274 S.E.2d 206, 209 (1981). \u201cThe doctrine ... is based upon the fundamental premise of giving relief in a situation where the parties could not reasonably have protected themselves by the terms of the contract against contingencies which later arose.\u201d Faulconer v. Wysong & Miles Co., 155 N.C. App. 598, 601, 574 S.E.2d 688, 691 (2002) (quoting 17 Am. Jur. 2d Contracts \u00a7 401 (1964)).\nIn the instant case, we conclude appellants could have reasonably protected themselves by the terms of the settlement agreement. As appellants admit in their brief, \u201c[t]he 1996 Contract provided protections to Appellants in the form of a representation that adequate water treatments [sic] facilities were present or would be constructed and a certain level of water and sewer capacity would be available.\u201d However, appellants chose not to seek such \u201cprotection\u201d by adding a similar provision to the settlement agreement, although the settlement agreement concerned the same property and parties as the 1996 Contract. We are unconvinced that appellants could not reasonably foresee a condition in 2002 that they had prepared for in 1996. Furthermore, for the doctrine of frustration to apply, \u201cthere must be an implied condition to the contract that a changed condition would excuse performance.\u201d Id. at 602, 574 S.E.2d at 691. After reviewing the correspondence between the parties, including the Mutual Release and Settlement Agreement, we conclude no such condition exists in the instant case. Therefore, we hold that the trial court did not err in enforcing the settlement agreement.\nAffirmed.\nChief Judge MARTIN concurs.\nJudge HUNTER dissents.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." }, { "text": "HUNTER, Judge,\ndissenting.\nSince the parties did not reach a meeting of the minds and create an executed document setting out the terms of the settlement agreement, I disagree with the majority\u2019s conclusion that the trial court properly granted the Motions To Enforce Settlement Agreement, and therefore, I respectfully dissent.\nI disagree with the trial court\u2019s findings and conclusions that there was a settlement agreement between the parties on 6 September 2002. For our appellate review, the findings were not supported by competent evidence. Hill v. Town of Hillsborough, 48 N.C. App. 553, 558, 269 S.E.2d 303, 306 (1980). Likewise, \u201c[t]he conclusions of law drawn by the trial court from its findings of fact are fully reviewable de novo by the appellate court.\u201d Mann Contr\u2019rs, Inc. v. Flair with Goldsmith Consultants-II, Inc., 135 N.C. App. 772, 775, 522 S.E.2d 118, 121 (1999) (citing Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980)).\nHere, the trial court\u2019s conclusions are not sufficiently supported by competent evidence. Appellee filed a breach of contract suit against appellants on 1 June 2001 and appellants filed a counter lawsuit against appellee on 20 September 2001. Before these cases were heard, the parties engaged in extensive negotiations to settle their contested claims. Appellee eventually filed motions to enforce the terms of the negotiations, which were granted by the trial court.\nCourts should be extremely cautious in determining that parties have entered into a settlement agreement when the only evidence is multiple correspondence and documents exchanged between their counsel, but no documents signed by the parties which formalize the agreement. Here, the parties\u2019 counsel, through e-mails and letters, constantly stated that \u201cexecution of a settlement agreement\u201d was a provision to settling their claims. All terms were never completely agreed upon, and even if they were, the parties never signed a document finalizing the agreement.\nFor a valid contract to exist, the parties must have a meeting of the minds concerning material terms. Chappell v. Roth, 353 N.C. 690, 548 S.E.2d 499 (2001). In that case, our Supreme Court opined:\nThe \u201cmutually agreeable\u201d release was part of the consideration, and hence, material to the settlement agreement. The parties failed to agree as to the terms of the release, and the settlement agreement did not establish a method by which to settle the terms of the release. Thus, no meeting of the minds occurred between the parties as to a material term; and the settlement agreement did not constitute a valid, enforceable contract.\nId. at 693, 548 S.E.2d at 500.\nAs in Chappell, there was no meeting of the minds in the case now before us. The parties\u2019 correspondence shows that negotiations and revisions of the settlement documents went before and beyond 6 September 2002. The evidence tends to show through the correspondence that both parties\u2019 counsel had agreed on (1) the numbered items that appellants proposed on 28 August 2002, (2) appellee\u2019s suggested \u201cbuy-back\u201d clause of Pad 3 proposed on 30 August 2002, and (3) appellant\u2019s marketing capabilities on 3 September 2002. However, the parties never agreed to all of the terms of the final document, and its execution was a material fact and condition to the parties having an agreement.\nIn contrast, in Bank v. Wallens and Schaaf v. Longiotti, 26 N.C. App. 580, 217 S.E.2d 12 (1975), this Court opined that reference to a more complete document does not necessarily indicate that material portions of the agreement have been left open for future negotiations. It could mean only that immaterial matters, which are of no consequence, will be added to complete the agreement. Id. However, in the case before us, the final document was material to their agreement. The parties\u2019 counsel made changes to it until 7 March 2003, in order for the agreement to be executed and finalized at closing, which never occurred.\nStarting on 25 February 2002 with appellee\u2019s counsel offering to settle with an \u201cexecution of a settlement agreement,\u201d the parties began to show their intent not to be bound until they executed a settlement agreement. Appellants\u2019 willingness to settle on 28 August 2002 was based on \u201ctermination of the current contract (and its modifications) and the execution of a new agreement^]\u201d Appellee did not object to that requirement in its 30 August 2002 e-mail response and counsel stated \u201c[he was] going to refer to [appellants\u2019] August 28, 2002 letter to [him] because that contained] the most recent settlement parameters.\u201d\n\u25a0 Then, on 3 September 2002, appellants\u2019 counsel stated in an e-mail that he was \u201cpleased that [they had] reached an agreement. . . . The remaining terms of the settlement agreement [were] consistent with those stated in [their] recent series of correspondence.\u201d That recent series of correspondence included both parties agreeing that they wanted the execution of a settlement agreement, a mutual release and a non-disparagement clause. In response to appellants\u2019 counsel\u2019s e-mail, on 6 September 2002, appellee\u2019s counsel sent an e-mail with an attached Mutual Release and Settlement Agreement, and he asked to be notified if any changes were necessary.\nThe evidence also tends to show that in the 2 September 2002 e-mail to appellee\u2019s counsel, appellants\u2019 counsel stated \u201cin view of [the] settlement, please permit [that] e-mail to confirm the depositions scheduled for later [that] week [would] not take place.\u201d On 23 December 2002, appellee\u2019s counsel stated \u201c[t]he parties ha[d] a settlement. [Appellant could not] now come up with some \u2018issues\u2019 to try to back out of the agreement.\u201d Nevertheless, these statements do not undermine both parties\u2019 expressed desire to have an executed contract and their continuous negotiations to finalize their agreement by executing a document setting it out.\nAfter 6 September 2002, the parties continued to negotiate in correspondence dated 2 October 2002, 3 October 2002, 16 October 2002, 26 November 2002, 2 December 2002, 16 December 2002, 19 December 2002, 23 December 2002, 3 January 2003, 8 January 2003, 14 January 2003, 7 March 2003 and 24 March 2003. On 2 October 2002, appellee\u2019s counsel asked for comments on the Settlement Agreement \u201cso [they could] keep [the] settlement moving towards finalization.\u201d On 11 November 2002, the parties began to have additional communication involving appellants\u2019 concerns about the potable water system in the Currituck Club. On 8 January 2003, appellants\u2019 counsel stated his client had deposited money in the trust account \u201cfor use in closing the transaction contemplated by [their] settlement negotiations in the event a settlement [was] ever reached.\u201d Because of the water supply concerns, a stormwater easement was included on 14 January 2003 as an additional document to finalize the agreement, which did not exist on 6 September 2002.\nOn 7 March 2003, appellee\u2019s counsel offered:\n[I]f [appellants did] not desire to sell back Pad 3 to [appellee], but prefer[ed] to retain it, that would be satisfactory. . . . [He] believe [d they could] conclude the settlement by simply having documents executed that relieve[d appellants] from any obligation to purchase Pads 4-6 and relieve[d appellee] of any obligations to sell [appellants] Pads 4-6.\nThis e-mail shows that appellee was offering terms different from what the parties had negotiated by 6 September 2002. Furthermore, as late as 24 March 2003, appellee\u2019s counsel sent an e-mail in response to a telephone conversation with appellants\u2019 counsel the previous week. It suggested that appellants had proposed different terms to replace the previous negotiations, including that appellants did not intend to buy Pads 4-6 and wanted to sell to appellee their two condos in the Currituck Club. These last communications between appellee and appellants indicate that the parties were still negotiating the terms of the contract. By 24 March 2003, over twenty-eight weeks after 6 September 2002, they had not entered into a formalized agreement.\nIn addition, as found in Hines v. Tripp, 263 N.C. 470, 139 S.E.2d 545 (1965), the statute of frauds \u201cdoes not require all of the provisions of the contract to be set out in a single instrument.\u201d Id. at 474, 139 S.E.2d at 548. However, a contract is \u201cnugatory and void for indefiniteness\u201d if it leaves any \u201cmaterial portions open for future agreement.\u201d Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974). The facts of the case sub judice show that even if the statute of frauds\u2019 written requirements for entering into a valid contract for land were satisfied, these parties never agreed to be bound by any contractual terms until they executed the finalized agreement or signed other binding documents. As further proof, the following clause was included in each draft of the proposed settlement agree-merit: \u201c13. COUNTERPARTS: This Settlement Agreement may be executed in multiple counterparts and shall be binding upon all parties when a counterpart has been signed by all parties hereto and for all intents and purposes as if all of the parties had signed a single document.\u201d (Emphasis added.)\nThe parties never signed separate documents nor did they sign this agreement and thus, were not bound by any of the settlement agreement negotiations at any time.\nTherefore, I disagree with the majority because the parties contemplated the execution of a settlement agreement to finalize their negotiations and did not on 6 September 2002 have the present intent to be bound by any terms. I would hold that the trial court erred in granting the Motions to Enforce Settlement Agreement and I would let the lawsuits proceed accordingly.", "type": "dissent", "author": "HUNTER, Judge," } ], "attorneys": [ "Poyner & Spruill, L.L.P., by J. Nicholas Ellis, Esq., for appellee.", "Ragsdale Liggett P.L.L.C., by George R. Ragsdale and Walter L. Tippett, Jr., for appellants." ], "corrections": "", "head_matter": "THE CURRITUCK ASSOCIATES\u2014RESIDENTIAL PARTNERSHIP, a North Carolina general partnership, Plaintiff-Appellee v. RAY E. HOLLOWELL, JR., d/b/a SHALLOWBAG BAY DEVELOPMENT COMPANY, Defendant-Appellant v. KITTY HAWK ENTERPRISES, INC., Third-Party Defendant SHALLOWBAG BAY DEVELOPMENT COMPANY, LLC, Plaintiff-Appellant v. THE CURRITUCK ASSOCIATES\u2014RESIDENTIAL PARTNERSHIP, Defendant-Appellee\nNo. COA03-1082\nNo. COA03-1085\n(Filed 7 September 2004)\n1. Jurisdiction; Rules of Civil Procedure\u2014 motion to enforce settlement agreement \u2014 failure to cite rule of civil procedure-notice\nThe trial court did not lack jurisdiction and authority to grant appellee\u2019s motion to enforce the parties\u2019 settlement agreement regarding the purchase of property even though appellee failed to cite a specific rule of civil procedure in the motion, because: (1) a motion that does not comply with N.C.G.S. \u00a7 1A-1, Rule 6 is not defective if the parties are aware of the grounds upon which the movant is relying; (2) although it is of great benefit to the courts for counsel to name and number the rule pursuant to which the motion is made, the only requirement is that the grounds for the motion and the relief sought be consistent with the Rules of Civil Procedure; (3) a settlement agreement may be enforced by filing a new action or by filing a motion in the cause even if the parties and their settlement agreement are still before the trial court; and (4) appellants were notified of the impetus of the motion and the relief sought, and they were given a chance to respond.\n2. Compromise and Settlement\u2014 motion to enforce settlement agreement \u2014 meeting of minds \u2014 statute of frauds\u2014 doctrine of frustration of purpose\nThe trial court did not err by granting appellee\u2019s motion to enforce the parties\u2019 settlement agreement regarding the purchase of property, because: (1) a valid offer was made and accepted in the correspondence between the parties, thus showing the parties reached a meeting of the minds; (2) the statute of frauds does not require all of the provisions of the contract to be set out in a single instrument and a memorandum is sufficient if the contract provisions can be determined from separate but related writings; (3) in the instant case, the correspondence identified the parties, the purchase price, and the property to be sold; (4) sufficient evidence existed to support the trial court\u2019s determination that appellants\u2019 counsel had the authority to bind his clients and appellants have not rebutted the presumption that their counsel acted on their behalf; and (5) assuming arguendo that a water shortage would destroy the value of the property included in the settlement agreement, appellants have not reasonably protected themselves by the terms of the settlement agreement, it was unconvincing to argue that appellants could not reasonably foresee a condition in 2002 that they had prepared for in 1996, and there was no implied condition to the contract that a changed condition would excuse performance in order for the doctrine of frustration to apply.\nJudge Hunter dissenting.\nAppeal by plaintiff Shallowbag Bay Development Company, L.L.C. and defendant Ray E. Hollowell, Jr., d/b/a Shallowbag Bay Development Company, from order entered 22 May 2003 by Judge W. Russell Duke in Dare County Superior Court. Heard in the Court of Appeals 24 May 2004.\nPoyner & Spruill, L.L.P., by J. Nicholas Ellis, Esq., for appellee.\nRagsdale Liggett P.L.L.C., by George R. Ragsdale and Walter L. Tippett, Jr., for appellants." }, "file_name": "0017-01", "first_page_order": 47, "last_page_order": 64 }