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  "name": "KENNETH W. WOLFE, Plaintiff v. ALLENE CURRIE VILLINES, MILDRED CURRIE JEFFRIES, JAMES WILLIAM CURRIE, INEZ CURRIE CORBETT and OZZIE M. CURRIE, Defendants",
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      "KENNETH W. WOLFE, Plaintiff v. ALLENE CURRIE VILLINES, MILDRED CURRIE JEFFRIES, JAMES WILLIAM CURRIE, INEZ CURRIE CORBETT and OZZIE M. CURRIE, Defendants"
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      {
        "text": "HUNTER, Judge.\nAliene Villines, Mildred Jefferies, James William Currie, Inez Corbett, and Ozie M. Currie (\u201cdefendants\u201d) appeal from an order entered 11 December 2003 granting partial summary judgment to Kenneth W. Wolfe (\u201cplaintiff\u2019) in an action for specific performance of a land sale agreement. Defendants raise two assignments of error, contending there were genuine issues of material fact as to: (1) whether the description of the property in the land sale agreement was sufficient to satisfy the statute of frauds, and (2) whether the land sale agreement was terminated due to plaintiffs failure to complete the agreement\u2019s requirements prior to the closing date. As we find there was a material issue of fact as to the description of the property, we reverse the grant of summary judgment.\nOn 6 December 2001, plaintiff and defendants entered into an Offer to Purchase and Contract (\u201cOffer\u201d) a plot of land belonging to defendants that was adjacent to plaintiff\u2019s property. The Offer described the plot to be purchased as \u201c+ or - 25ac to be determined by a survey for property behind Mr. Wolfe\u2019s Property, to run to the first field[,]\u201d and stated that it was a portion of the property listed in tax map 21, Lot 23, in Person County. The Offer did not specify who was responsible for obtaining the survey, but did provide that the buyer would pay for the cost. The Offer stated that the purchase price for the property was $2,200.00 per acre and that the closing should take place on or before 31 January 2002, and was signed by all parties.\nA surveyor, Neil Hamlett (\u201cHamlett\u201d) was hired to survey the property by Tommy Bowes (\u201cBowes\u201d), the real estate agent for both parties. Hamlett discovered that a house existed on the proposed plot and was instructed by Bowes to cut out the portion of the property containing the house from the surveyed land. Due to inclement weather, Hamlett did not return to complete the survey until March 2002. He was informed by defendants at that time to not complete the survey, as the time for closing had expired. Hamlett reported that three possible tracts could be surveyed in the given area, of 15.9 acres, 16.9 acres, or 20.8 acres, respectively.\nPlaintiff filed a complaint seeking specific performance of the contract on 9 July 2003, alleging that defendants had repudiated the Offer by refusing to allow the land to be surveyed. Defendants counterclaimed that the Offer was unenforceable as it violated the statute of frauds and the required survey was not completed before closing. Both parties moved for summary judgment. On 11 December 2003, the trial court entered an order denying defendants\u2019 motion and partially granting plaintiffs motion for summary judgment, ordering specific performance of the contract. Defendants appeal from this order.\nI.\nWe first address whether the appeal from the trial court\u2019s 11 December 2003 order entitled partial summary judgment is timely. Ordinarily, a partial summary judgment, because it does not completely dispose of the case, is interlocutory, and cannot be immediately appealed. See Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). Here however, the trial court\u2019s order fully disposed of the case by ordering specific performance of the land contract, and retained jurisdiction only in the event that good title to the property in question could not be conveyed. Indeed, plaintiff, the appellee in this case, notes in his brief that \u201cit is apparent . . . that the order is, in fact, not a partial summary judgment because no further parties or claims are unresolved.\u201d (Emphasis omitted.) Despite its title of partial summary judgment, the order appears to not be interlocutory, as it resolves all claims raised to the court, and review of the matter would therefore be neither fragmentary nor premature.\nThe dissent contends that a question remains, however, as to whether the order is final or interlocutory, as the trial court did not certify this appeal pursuant to N.C.R. Civ. R 54(b) and did retain jurisdiction for a limited purpose. We therefore, in the interest of judicial economy, and to prevent manifest injustice to both parties as a complete and final remedy has been ordered by the trial court, elect pursuant to Rule 2 of the North Carolina Rules of Appellate Procedure to treat plaintiff\u2019s appeal as a petition for a writ of certiorari and grant the petition. See N.C.R. App. P. 2, Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 79, 404 S.E.2d 176, 177 (1991).\nII.\nDefendants contend that the trial court erred in finding there was no genuine issue of material fact as to whether the legal description of the property in the Offer was insufficient to meet the statute of frauds. We agree.\nWe first note the appropriate standard of review. Summary judgment is properly granted \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2003).\nOur statute of frauds requires that contracts to convey land \u201cshall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.\u201d N.C. Gen. Stat. \u00a7 22-2 (2003). The Supreme Court of North Carolina has held that:\nA valid contract to convey land, therefore, must contain expressly or by necessary implication all the essential features of an agreement to sell, one of which is a description of the land, certain in itself or capable of being rendered certain by reference to an extrinsic source designated therein.\nKidd v. Early, 289 N.C. 343, 353, 222 S.E.2d 392, 400 (1976).\nAn agreement for the sale of land violates the statute of frauds as a matter of law if it is patently ambiguous, that is, if \u201cit leaves the subject of the contract, the land, in a state of absolute uncertainty and refers to nothing extrinsic by which the land might be identified with certainty.\u201d House v. Stokes, 66 N.C. App. 636, 638, 311 S.E.2d 671, 673 (1984). However a description is latently ambiguous if \u201cit is insufficient, by itself, to identify the land, but refers to something external by which identification might be made.\u201d Id. at 638, 311 S.E.2d at 674.\nIn Kidd v. Early, the Court found that the inclusion of a requirement of a survey to determine the precise boundaries of a parcel, in a contract for purchase of a portion of land from a larger tract, saved the description from patent ambiguity. Kidd, 289 N.C. at 356, 222 S.E.2d at 402. Although the option in Kidd required the seller to furnish the survey, the Court in Kidd relied on cases from a number of jurisdictions which also permitted the buyer to control the survey. Id. at 354-56, 222 S.E.2d at 401-02.\nHere, the description in the Offer identified the parcel generally through a tax map designation and as the Lessie Bradsher Estate located behind plaintiffs property. Although the tract identified encompassed more than twenty-five acres, the description further specified that the exact amount of + or - 25 acres would be determined by a survey of the property. Thus, as the contract provided an extrinsic means for identification of the precise property to be sold, we find the description was latently, rather than patently, ambiguous and therefore did not violate the statute of frauds as a matter of law.\nA latently ambiguous description requires admission of extrinsic evidence to explain or refute the identification of the land in question, and thus creates a potential issue of material fact which must be determined before the trial court can conclude as a matter of law that the statute of frauds has been met. See House, 66 N.C. App. at 639, 311 S.E.2d at 674. Here, Hamlett\u2019s affidavit showed the surveyor was directed by Bowes to discard a portion of the parcel after buildings were discovered upon it, and further directed to move the northern line of the property. These directions resulted in the production of three potential surveys of the property to be conveyed under the contract. Unlike in Byrd v. Freeman, 252 N.C. 724, 727-28, 114 S.E.2d 715, 718-19 (1960), where two different survey results were produced but the evidence showed the parties mutually agreed on one of the surveys, here, a material issue of fact remained as to which of the proposed descriptions, if any, reflected the true intention of the parties. Although we note that the purpose of the statute of frauds is to \u201cguard against fraudulent claims supported by perjured testimony\u201d rather than to allow \u201cdefendants to evade an obligation based on a contract fairly and admittedly made[,]\u201d House, 66 N.C. App. at 641, 311 S.E.2d at 675, sufficient extrinsic evidence must be adduced to identify the parcel of land intended to be conveyed by the parties and remove the latent ambiguity in the contractual description for it to be enforceable. As there exists an issue of material fact as to both the precise parcel to be conveyed, as a result of the discovery of the buildings, and as to whether the contract is void for latent ambiguity in the description, we therefore reverse the trial court\u2019s grant of summary judgment.\nThe dissent contends that although the evidence presented to the trial court indicated the surveyor had determined three possible tracts of land could be drawn from the general land description, the trial court properly acted in equity to reform the contract and order defendants to convey the smallest of the three parcels. Such actions in equity by the trial court at the summary judgment stage of adjudication are not permissible when issues of material fact exist. In Dettor v. BHI Property Co., 324 N.C. 518, 379 S.E.2d 851 (1989), our Supreme Court considered another disputed land contract. In Dettor, a contract for the sale of land included a description of the property to be sold as \u201c \u2018\u00b1 12 acres and highlighted in yellow on Exhibit A attached hereto\u2019 \u201d and further that \u201c \u2018[t]he property shall be surveyed by a North Carolina Registered Surveyor at the expense of the Sellers .... Property is to have approximately 12 acres as shown on \u201cExhibit A\u201d attached hereto.\u2019 \u201d Id. at 519-20, 379 S.E.2d at 852. The survey conducted revealed that the property contained 12.365 acres, however, after closing, a mistake in the calculations was discovered which showed the property actually contained 17.147 acres. Id. at 520, 379 S.E.2d at 852. An action was brought for reformation of the deed and for specific performance to pay for the excess acreage. Both parties moved for summary judgment. Id. at 520-21, 379 S.E.2d at 852. The trial court granted partial summary judgment on the grounds the contract was consummated under a mutual mistake of fact, but declined to award specific performance as inequitable. Id. at 521, 379 S.E.2d at 852. The trial court instead created a unique remedy, described as a \u201creformation \u2018in effect,\u2019 \u201d which appointed \u201ca triumvirate of commissioners to designate 4.782 acres to be carved out of the disputed tract and reconveyed to plaintiffs.\u201d Id. The Supreme Court overturned a decision by this Court affirming the trial court, on the grounds that when an issue of material fact as to the acreage intended to be transferred by the parties existed, the question must be resolved by the fact finder, and a grant of summary judgment was inappropriate. Dettor, 324 N.C. at 522-23, 379 S.E.2d at 853.\nSimilarly here, a question of material fact was created by the discovery of unknown improvements on the property, resulting in a latent ambiguity in the land description. The trial court improperly concluded that no material issue of fact existed, yet selected one of three surveys presented to the court as the remedy. As a question of material fact existed, we find the trial court erred in reforming the contract at the summary judgment stage.\nIII.\nDefendants next contend there was a genuine issue of material fact as to whether the Offer was terminated due to plaintiff\u2019s failure to complete the Offer\u2019s requirements, including a survey of the parcel of property, prior to the closing date. We disagree.\nIn Taylor v. Bailey, 34 N.C. App. 290, 237 S.E.2d 918 (1977), this Court noted that when the only reference to time in the contract was as to a proposed closing date, and the conditions included a survey and title opinion of the property, time was not of essence to the agreement and upheld the finding that the failure to settle by the stated date did not vitiate the contract. See Taylor, 34 N.C. App. at 293-94, 237 S.E.2d at 920. In Taylor, a surveyor was hired in a timely fashion, but a problem with the title was discovered which delayed closing. Id. at 294, 237 S.E.2d at 920. The Court affirmed the order of specific performance of the contract however, as there was no evidence that \u201c \u2018plaintiff tarried or delayed: . . and . . . stood ready, willing and able to complete the terms and conditions of said contract[.]\u2019 \u201d Id. at 294-95, 237 S.E.2d at 921 (citation omitted).\nHere, the Offer, like in Taylor, stated closing should occur \u201con or before 1-31-2002,\u201d but included the condition of a survey paid for by plaintiff. As time was not of the essence in the contract, the failure to complete the required survey and close by 31 January 2002 does not vitiate the contract. The question rather is one of the reasonableness of the time to complete the contract. See Fletcher v. Jones, 314 N.C. 389, 393, 333 S.E.2d 731, 734 (1985). \u201cWhat is a \u2018reasonable time\u2019 in which delivery must be made is generally a mixed question of law and fact, and, therefore, for the jury, but when the facts are simple and admitted, and only one inference can be drawn, it is a question of law.\u201d Colt v. Kimball, 190 N.C. 169, 174, 129 S.E. 406, 409 (1925).\nEvidence presented in the affidavits of Bowes and Hamlett show that the surveyor was hired in a timely fashion in December 2001 by the agent of both parties, that a problem arose with the survey when the presence of a building was discovered within the given parameters, and that as the Offer specified the contract was for land only, the surveyor was instructed by the agent to return to resurvey the property without the building. Further, Hamlett states in his corrected affidavit on 17 November 2003 that he was delayed from returning to complete the survey until March 2002 as a result of the changes, and was told at that time not to complete the survey by defendants. As there is no evidence that plaintiff \u201cdelayed or tarried\u201d in completion of the contract, or other disputed material fact, the trial court properly found the delay of a few weeks in completion of the survey was not unreasonable as a matter of law.\nAs we find that a material issue of fact exists as to the land description, we therefore reverse the trial court\u2019s grant of summary judgment.\nReversed.\nJudge LEVINSON concurs.\nJudge TYSON dissents in a separate opinion.\n. Defendants fail to provide a statement of the grounds for appellate review, as required by N.C.R. App. P. 28(b)(4), as to whether this matter appealed constitutes a final judgment which is properly before this Court. Violation of this rule subjects defendants\u2019 appeal to dismissal. See State v. Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780, 780 (1982). However, as noted supra, we deem it appropriate to consider this appeal on its merits pursuant to N.C.R. App. P. 2.\n. We note that the order appealed in Dettor was also entitled Partial Summary Judgment, but was considered by both this Court and our Supreme Court.",
        "type": "majority",
        "author": "HUNTER, Judge."
      },
      {
        "text": "TYSON, Judge\ndissenting.\nThe majority\u2019s opinion reverses the trial court\u2019s grant of partial summary judgment in plaintiff\u2019s favor and holds genuine issues of material fact exist concerning: (1) whether the Offer is void for latent ambiguities with the property description; and (2) which parcel should be conveyed. This appeal is interlocutory and defendants failed to comply with the North Carolina Rules of Appellate Procedure and should be dismissed. I respectfully dissent.\nI. Interlocutory Appeals\nInterlocutory appeals are those \u201c \u2018made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.\u2019 \u201d Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (quoting Carriker v. Carriker, 350 N.C. 71, 73, 511 S.E.2d 2, 4 (1999)); accord Veazey v. Durham, 231 N.C. 357, 362-63, 57 S.E.2d 377, 381-82, reh\u2019g denied, 232 N.C. 744, 59 S.E.2d 429 (1950). \u201cA grant of partial summary judgment, because it does not completely dispose of the case, is an interlocutory order from which there is ordinarily no right of appeal.\u201d Liggett Group v. Sunas, 113 N.C. App. 19, 23, 437 S.E.2d 674, 677 (1993). In addition, \u201c[generally, orders denying motions for summary judgment are not appealable.\u201d Hill v. Smith, 38 N.C. App. 625, 626, 248 S.E.2d 455, 456 (1978); N.C. Gen. Stat. \u00a7 1-277 (2003).\nIt is undisputed that the 11 December 2003 judgment from which defendants appeal is interlocutory because it was a \u201cPartial Summary Judgment\u201d that partially granted plaintiff\u2019s motion for summary judgment, denied defendants\u2019 motion for summary judgment, and did not dispose of the entire case. See Carriker, 350 N.C. at 73, 511 S.E.2d at 4. The trial court specifically ordered that it \u201cshall retain jurisdiction for the purpose of determining what damages, if any, . . . [are] appropriate ...\u201d See Waters v. Personnel, Inc., 294 N.C. 200, 207, 240 S.E.2d 338, 343 (1978) (an order is interlocutory when issues remain and require further adjudication before a final decree is issued). Here, there is no risk of inconsistent verdicts to trigger a preemptive review by this Court. CBP Resources, Inc. v. Mountaire Farms of N.C., Inc., 134 N.C. App. 169, 172, 517 S.E.2d 151, 154 (1999) (\u201cthe issue of liability has been determined, [and] the only remaining issue is that of damages and there is no danger of inconsistent verdicts\u201d); Schuch v. Hoke, 82 N.C. App. 445, 446, 346 S.E.2d 313, 314 (1986) (\u201can order granting [a] motion for partial summary judgment on the issue of liability, reserving for trial the issue of damages, [is] an interlocutory order not subject to immediate appeal\u201d) (citing Industries, Inc. v. Insurance Co., 296 N.C. 486, 492, 251 S.E.2d 443, 448 (1979)).\nA. Appellate Review of Interlocutory Judgments\nGenerally, there is no right of immediate appeal from an interlocutory judgment. Travco Hotels v. Piedmont Natural Gas Co., 332 N.C. 288, 292, 420 S.E.2d 426, 428 (1992). An interlocutory order may only be considered on appeal where either: (1) certification by the trial court for immediate review under N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2003); or (2) \u201ca substantial right\u201d of the appellant is affected. Tinch v. Video Industrial Services, 347 N.C. 380, 381, 493 S.E.2d 426, 427 (1997) (citing Bailey v. Gooding, 301 N.C. 205, 209, 270 S.E.2d 431, 434 (1980)); N.C. Gen. Stat. \u00a7 1-277(a) (2003); N.C. Gen. Stat. \u00a7 7A-27(d) (2003). Here, the trial court did not certify its partial summary judgment \u201cfor immediate review\u201d under Rule 54(b) and defendants have failed to show \u201ca substantial right\u201d that will be lost absent immediate review. See Watts v. Slough, 163 N.C. App. 69, 72, 592 S.E.2d 274, 276 (2004) (interlocutory appeal dismissed due to the trial court not certifying its order under Rule 54(b) and the appellant\u2019s failure to assert a substantial right that would be adversely affected without immediate review).\n1. Rules of Appellate Procedure\nRule 28(b)(4) of the North Carolina Rules of Appellate Procedure requires the appellant\u2019s brief to include a \u201cstatement of the grounds for appellate review.\u201d N.C.R. App. P. 28(b)(4) (2004); see Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 105-06, 493 S.E.2d 797, 800 (1997). If the appeal is interlocutory, the \u201cstatement of the grounds\u201d must contain sufficient facts and argument to support appellate review on the grounds that the challenged judgment either affects a substantial right, or was certified by the trial court for immediate appellate review. Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). It is the appellant\u2019s duty to provide this Court the grounds to warrant appellate review. Id.\nDefendants neither included a \u201cstatement of the grounds for appellate review\u201d nor addressed the interlocutory nature of their appeal. Further, defendants do not assert in their arguments any substantial rights that will be adversely affected if this Court does not immediately review the trial court\u2019s order.\n\u201cRules of Appellate Procedure are mandatory and failure to observe them is grounds for dismissal of the appeal.\u201d State v. Wilson, 58 N.C. App. 818, 819, 294 S.E.2d 780 (1982), cert. denied, - N.C. -, 342 S.E.2d 907 (1986). This appeal should be dismissed due to both its interlocutory nature and defendants\u2019 failure to assert the substantial rights that will be adversely affected without this Court\u2019s immediate review in violation of the North Carolina Rules of Appellate Procedure.\nII. Rule 2\nThe majority\u2019s opinion agrees the appeal is interlocutory and that defendants failed to comply with the appellate rules. Yet, it invokes Rule 2 of the North Carolina Rules of Appellate Procedure to purportedly review the merits of defendants\u2019 claims. Rule 2 states:\nTo prevent manifest injustice to a party, or to expedite decision in the public interest, either court of the appellate division may, except as otherwise expressly provided by these rules, suspend or vary the requirements or provisions of any of these rules in a case pending before it upon the application of a party or upon its own initiative, and may order proceedings in accordance with its directions.\nN.C.R. App. P. 2 (2004).\nOur Supreme Court stated in Steingress v. Steingress that \u201cRule 2 relates to the residual power of our appellate courts to consider, in exceptional circumstances, significant issues of importance in the public interest, or to prevent injustice which appears manifest to the Court and only in such instances.\" 350 N.C. 64, 66, 511 S.E.2d 298, 299-300 (1999) (emphasis supplied) (citing Blumenthal v. Lynch, 315 N.C. 571, 578, 340 S.E.2d 358, 362 (1986)). This Court has repeatedly held that \u201c \u2018there is no basis under Appellate Rule 2 upon which we should waive plaintiff\u2019s violations of Appellate Rules ....\u2019\u201d Holland v. Heavner, 164 N.C. App. 218, 222, 595 S.E.2d 224, 227 (2004) (quoting Sessoms v. Sessoms, 76 N.C. App. 338, 340, 332 S.E.2d 511, 513 (1985)).\nMy review of the entire record fails to disclose any \u201cexceptional circumstances,\u201d \u201csignificant issues,\u201d or \u201cmanifest injustice\u201d to warrant suspension of the Appellate Rules. Our precedents do not allow use of Rule 2 to reach the merits of this appeal. I vote to dismiss.\nIII. Property Description\nI also disagree with the majority\u2019s holding that since the survey was never completed that genuine issues of fact exist: (1) concerning which of the parcels the parties intended to convey; and (2) whether the Offer is potentially void for the latently ambiguous property description.\nIn Kidd v. Early, our Supreme Court determined that a property description that references a future survey satisfies the Statute of Frauds. 289 N.C. 343, 222 S.E.2d 392 (1976); see also N.C. Gen. Stat. \u00a7 22-2 (2003). The property description included in the Offer is latently ambiguous, requiring parol evidence to specify its precise location. See Bradshaw v. McElroy, 62 N.C. App. 515, 516, 302 S.E.2d 908, 910 (1983) (citing Lane v. Coe, 262 N.C. 8, 13, 136 S.E.2d 269, 273 (1964)).\nDefendants failed to allow the surveyor to complete the survey to remove the latent ambiguity and make the property description definite. Kidd, 289 N.C. at 357, 222 S.E.2d at 402. Here, Hamlett\u2019s survey divulged the existence of buildings located on the property to be conveyed during initial field work. Upon reporting this discovery to Broker Bowes, Hamlett was instructed to remove the improvements from the parcel to be conveyed and move the northern boundary line. The result was a preliminary survey including three possible tracts of land, ranging from 15.9 to 20.8 acres. Defendants wrongly refused Hamlett access to the property to complete the final survey, forcing plaintiff to instigate this action and seek specific performance, an equitable remedy.\nBased on the pleadings, exhibits, affidavits, memoranda of law, admitted testimony, and oral arguments, the trial court ruled\nthere is no genuine issue as to any material facts and that the Plaintiff is entitled to specific performance of the December 6, 2001 Offer to Purchase and Contract entered into between the Plaintiff and the Defendants. It is further determined that as a matter of equity, the contract shall be reformed to reflect that the parcel to be conveyed pursuant to the terms of the contract is that 15.9 [+-] acres excluding the 40,000 square foot outparcel containing the house and out building ....\n(Emphasis supplied). The trial court, sitting as a Court of Equity, in its discretion and in light of all the evidence, reformed the contract and ordered defendants to convey the smallest of the three possible parcels, 15.9 acres, despite the Offer calling for a conveyance of twenty-five acres, more or less. It further ordered defendants to provide Hamlett access to the property to finalize the survey of the 15.9 acre tract.\nIt is apparent that the potential issues of material fact that the majority\u2019s opinion cites in reversing the trial court\u2019s order result from defendants\u2019 breach of the Offer. The majority\u2019s opinion acknowledges that \u201c[t]he statute of frauds was designed to guard against fraudulent claims supported by perjured testimony; it was not meant to be used by defendants to evade an obligation based on a contract fairly and admittedly made.\u201d House v. Stokes, 66 N.C. App. 636, 641, 311 S.E.2d 671, 675 (1984) (citation omitted). However, its holding allows defendants to further unfairly delay plaintiff by approving their breach of the Offer and prolonging the closing of this matter through their improper actions. \u201c \u2018[A] court of equity may decree specific performance, when it would be a virtual fraud to allow the defendant to interpose the statute as a defense and at the same time secure to himself the benefit of what has been done in performance.\u2019 \u201d Ebert v. Disher, 216 N.C. 36, 48, 3 S.E.2d 301, 309 (quotation omitted), cert. denied, 216 N.C. 546, 5 S.E.2d 716 (1939).\nDefendants do not assert and my review of the record does not indicate the trial court abused its discretion by sitting as a court of equity, reforming the contract, and ordering specific performance. See Harris v. Harris, 50 N.C. App. 305, 313, 274 S.E.2d 489, 493 (this Court\u2019s review of a trial court\u2019s equitable remedy is under the abuse of discretion standard), appeal dismissed, 302 N.C. 397, 279 S.E.2d 351 (1981).\nThe majority\u2019s opinion cites Dettor v. BHI Property Co. as authority to hold that genuine issues of material fact preclude a trial court\u2019s grant of partial summary judgment. 324 N.C. 518, 379 S.E.2d 581 (1989). Dettor is readily distinguishable from the case at bar. There, our Supreme Court determined the dispositive issue concerned whether the parties intended a per-acre sale of land or a contract for approximately twelve acres. Id. at 519, 379 S.E.2d at 851-52. This issue resulted from a third-party surveyor\u2019s miscalculation of the acreage to be conveyed. Id. at 520, 379 S.E.2d at 852. Based upon each party presenting \u201csome plausible evidence tending to support its interpretation of the contract,\u201d the Court held the contradictions \u201c[a]t best . . . raise a material question of fact.\u201d Id. at 522-23, 379 S.E.2d at 853 (emphasis supplied). The Court concluded that such a determination should be made by the fact finder. Id.\nThe materiality of the issue of fact in Dettor is its effect on the purchase price. See Bank v. Gillespie, 291 N.C. 303, 310, 230 S.E.2d 375, 379 (1976) (issues are material if the facts alleged would affect the result of the action in the non-movant\u2019s favor). Under the plaintiff/seller\u2019s \u201cper-acre sale\u201d argument in Dettor, the purchase price should have been increased relative to the difference in acreage conveyed versus the \u201c+/- 12 acres\u201d contracted for. 324 N.C. at 521-22, 379 S.E.2d at 853. The defendant/purchaser in Dettor argued it did not owe additional money because the contract was \u201cfor approximately twelve acres and it never anticipated that the tract in question might contain substantially more than twelve acres.\u201d 324 N.C. at 522, 379 S.E.2d at 853. The outcome of Dettor raised serious financial ramifications to the losing party based on how the terms of the contract were interpreted. That outcome is the materiality of the issue of fact in Dettor.\nHere, the parties contracted to convey \u201c+ or - 25 ac. to be determined by a surveyor for property behind Mr. Wolfe\u2019s Property, to run to the first field\u201d at \u201c$2200.00 Per Ac.\u201d The potential issues of fact the majority\u2019s opinion cites do not result from the possibility of the appealing party not receiving the benefit of the bargain as was intended by the Offer. Defendants are receiving the full purchase price of the Offer. In addition, they are conveying to plaintiff over nine acres less than the acreage required by the terms of the Offer. The trial court\u2019s order benefits defendants, not plaintiff.\nThe materiality of issues of fact in Dettor is not present here, as defendants are receiving everything they contracted for, and more. Plaintiff (the purchaser) did not appeal and has not complained about the trial court\u2019s decision to convey to him over nine acres less than the Offer called for.\nUnder the majority\u2019s holding, on remand, defendants stand to lose more than the 15.9 acre tract if the future finder of fact determines the parties intended a larger parcel to be conveyed by the Offer. In addition, defendants\u2019 motives in pursuing this appeal are questionable as record evidence shows another outstanding third-party Offer to purchase defendants\u2019 remaining acreage is pending, contingent upon the outcome of this matter.\nIV. Time for Closing\nThe majority\u2019s opinion also states the trial court properly found that time was not of the essence for the Offer. That discussion is also unnecessary as this appeal is interlocutory and defendants failed to satisfy the rules of appellate procedure. This assignment of error is also not properly before this Court and should be dismissed.\nV. Conclusion\nThe trial court, sitting as a court of equity and in its discretion, properly ordered reformation and specific performance of the Offer. Defendants\u2019 improper breach of the Offer and refusal to allow the surveyor to complete his work created any potential issues of fact. This Court should not allow defendants\u2019 wrongful conduct to delay or avoid their contractual obligations.\nI vote to dismiss this appeal due to: (1) its interlocutory nature; (2) no trial court certification; (3) the absence of a substantial right; and (4) defendants\u2019 failure to abide by the North Carolina Rules of Appellate Procedure. Also, our precedents do not allow Rule 2 to be used to excuse defendants\u2019 failure to comply with the North Carolina Rules of Appellate Procedure. See Smith v. R.R., 114 N.C. 729, 749-50, 19 S.E. 863, 869 (1894) (warning that, \u201cLooseness of language and dicta in judicial opinions, either silently acquiesced in or perpetuated by inadvertent repetition, often insidiously exert their influence until they result in confusing the application of the law, or themselves become crystallized into a kind of authority which the courts, without reference to true principle, are constrained to follow.\u201d). I respectfully dissent.",
        "type": "dissent",
        "author": "TYSON, Judge"
      }
    ],
    "attorneys": [
      "Hatch, Little & Bunn, L.L.P., by David H. Permar and Elizabeth T. Martin, for plaintiff-appellee.",
      "Ramsey, Ramsey & Long, by James E. Ramsey, for defendant-appellants."
    ],
    "corrections": "",
    "head_matter": "KENNETH W. WOLFE, Plaintiff v. ALLENE CURRIE VILLINES, MILDRED CURRIE JEFFRIES, JAMES WILLIAM CURRIE, INEZ CURRIE CORBETT and OZZIE M. CURRIE, Defendants\nNo. COA04-467\n(Filed 5 April 2005)\n1. Vendor and Purchaser\u2014 land sale \u2014 sufficiency of description \u2014 latent ambiguity\nThe legal description of property in a land sale agreement was latently ambiguous, and the trial court erred by granting summary judgment for plaintiff where there was an issue of material fact as to the precise parcel to be conveyed.\n2. Vendor and Purchaser\u2014 land sale \u2014 insufficient description \u2014 reformation\u2014issue of fact\nThe trial court erred by reforming a land sale agreement through the selection one of three surveys drawn from the agreement\u2019s general description where the discovery of unknown improvements on the property created a question of fact. Such actions in equity by the trial court at the summary judgment stage are not permissible when there ar\u00e9 issues of fact.\n3. Vendor and Purchaser\u2014 land sale \u2014 survey completed late \u2014 time not of essence\nA land sale agreement was not vitiated by the failure to complete a survey within the required time where time was not of the essence in the contract. There was no evidence that plaintiff delayed or tarried in completion of the contract, and the trial court properly found that the delay was not unreasonable.\nJudge Tyson dissenting.\nAppeal by defendants from an order entered 11 December 2003 ' by Judge Orlando F. Hudson, Jr. in Person County Superior Court. Heard in the Court of Appeals 17 November 2004.\nHatch, Little & Bunn, L.L.P., by David H. Permar and Elizabeth T. Martin, for plaintiff-appellee.\nRamsey, Ramsey & Long, by James E. Ramsey, for defendant-appellants."
  },
  "file_name": "0483-01",
  "first_page_order": 513,
  "last_page_order": 526
}
