{
  "id": 8211846,
  "name": "ANGELA M. KNIEP and DARYL R. KNIEP, Plaintiffs v. HUFF T. TEMPLETON, Defendant",
  "name_abbreviation": "Kniep v. Templeton",
  "decision_date": "2007-09-04",
  "docket_number": "No. COA06-967",
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    "judges": [
      "Judges McGEE and CALABRIA concur."
    ],
    "parties": [
      "ANGELA M. KNIEP and DARYL R. KNIEP, Plaintiffs v. HUFF T. TEMPLETON, Defendant"
    ],
    "opinions": [
      {
        "text": "STEPHENS, Judge.\nOn 28 November 2005, Plaintiffs filed a complaint in Brunswick County Superior Court alleging that \u201c[o]n or about February 12, 2005, Plaintiffs and Defendant entered into a valid contract for the sale of a parcel of real property\u201d located on Oak Island. Plaintiffs further alleged that although a closing date had been established, \u201cDefendant did not attend the closing as scheduled, but instead refused to close.\u201d Plaintiffs claimed they were \u201cready, willing and able to close\u201d pursuant to said contract on the closing date. Plaintiffs further alleged that by failing to appear for the closing, Defendant breached the contract, thus entitling Plaintiffs to specific performance and monetary damages. Along with the complaint, Plaintiffs served requests for admissions. On 9 December 2005, Defendant acknowledged receipt of the documents.\nOn 11 January 2006, after Defendant failed to file a responsive pleading, Plaintiffs moved for entry of default and default judgment. That same date, pursuant to Rule 55 of the North Carolina Rules of Civil Procedure, default was entered against Defendant. On 14 February 2006, pursuant to Rule 56 of the North Carolina Rules of Civil Procedure, Plaintiffs moved for summary judgment, alleging that \u201cDefendant... failed to respond to ... Requests for Admissions, and the time period for filing of said pleadings has expired.\u201d Plaintiffs also alleged that because of Defendant\u2019s failure to reply to the requests for admissions, \u201c[t]he matters requested to be admitted . . . are now con-, clusively admitted pursuant to Rule 36 of the North Carolina Rules of Civil Procedure.\u201d\nOn 27 February 2006, the matter was heard before the Honorable Gary Locklear in Brunswick County Superior Court. By order filed 9 March 2006, Judge Locklear entered default judgment and summary judgment in favor of Plaintiffs on their claim for specific performance. Judge Locklear ordered Defendant\nto deliver to Plaintiffs[\u2019] counsel a duly executed General Warranty Deed conveying [the] property to the Plaintiffs, an executed IRS Form 1099, an executed lien waiver affidavit satisfactory to the title insurance company of Plaintiffs\u2019 choosing, and any and all other documents and/or things necessary to deliver clear and marketable title to Plaintiffs to the property in question. Defendant shall deliver said executed documents to Plaintiffs\u2019 counsel within thirty (30) days of the date of this Judgment, and closing shall occur within ninety (90) days of the date of this Judgment.\nFrom Judge Locklear\u2019s order, Defendant appeals. We affirm the judgment of the trial court.\nAs a threshold matter, we address Plaintiffs\u2019 motion to dismiss Defendant\u2019s appeal. For the reasons which follow, this motion is denied.\nPlaintiffs first contend that Defendant\u2019s first and second assignments of error are overly broad and vague, and therefore, in violation of N.C. R. App. P. 10(c)(1). The assignments of error in question state:\n1. The trial court\u2019s grant of default judgment to Plaintiff[s] by its Judgment of March 9, 2006 was in violation of the North Carolina Rules of Civil Procedure and was arbitrary and capricious and an abuse of discretion.\n2. The trial court\u2019s grant of summary judgment to Plaintiff[s] by its Judgment of March 9, 2006 was in violation of the North Carolina Rules of Civil Procedure and was arbitrary and capricious and an abuse of discretion.\nAssignments of error \u201cshall state plainly, concisely and without argumentation the legal basis upon which error is assigned.\u201d N.C. R. App. P. 10(c)(1). A primary purpose of Rule 10 is to \u201cidentify for the appellee\u2019s benefit all the errors possibly to be urged on appeal... so that the appellee may properly assess the sufficiency of the proposed record on appeal to protect his position.\u201d Rogers v. Colpitts, 129 N.C. App. 421, 422, 499 S.E.2d 789, 790 (1998) (quotation marks and citation omitted). Furthermore, Rule 10 is intended to relieve some of the burden on the judiciary by allowing appellate courts to determine the legal questions involved in the case \u201cfairly and expeditiously[,]\u201d without having to make a \u201cvoyage of discovery\u201d through the record. Id. In reviewing a trial court\u2019s grant of summary judgment, however, the purpose of the Rule 10 requirements is no longer applicable. Addressing this point, our Supreme Court has held:\nOn appeal, review of summary judgment is necessarily limited to whether the trial court\u2019s conclusions as to these questions of law were correct ones. It would appear, then, that notice of appeal adequately apprises the opposing party and the appellate court of the limited issues to be reviewed. Exceptions and assignments of error add nothing.\nEllis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, 481 (1987) (emphasis added); see also Nelson v. Hartford Underwriters Ins. Co., 177 N.C. App. 595, 603, 630 S.E.2d 221, 227 (2006) (\u201cThis Court is required to follow the decisions of our Supreme Court.... Accordingly, we follow Ellis[.]\u201dy, but see Shook v. County of Buncombe, 125 N.C. App. 284, 285, 480 S.E.2d 706, 707 (1997) (\u201cIn our view, Ellis is no longer the law.\u201d). We conclude that because Defendant is appealing from a summary judgment order, his second assignment of error is sufficient, and thus, his appeal is not subject to dismissal, under Ellis and Nelson, on grounds that his second assignment of error did not comport with the requirements of Rule 10.\nWith regard to Defendant\u2019s first assignment of error, we note that Defendant does not contest the propriety of the trial court\u2019s entry of default judgment in his brief to this Court. Therefore, Defendant\u2019s first assignment of error has been abandoned. See N.C. R. App. R 28(b)(6) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\nPlaintiffs next argue that Defendant\u2019s appeal is moot because his third assignment of error addresses only the trial court\u2019s entry of summary judgment and fails to address the entry of default judgment. We disagree. This portion of Plaintiffs\u2019 motion to dismiss fails to comprehend the nature of Defendant\u2019s argument. Defendant argues that the allegedly improper entry. of summary judgment precluded him from seeking certain procedural remedies before the trial court and thus forced him to immediately seek redress in the appellate division. Under Defendant\u2019s argument, if we agreed with his position we would reverse the trial court\u2019s entry of summary judgment and remand the case to the trial court, where Defendant could seek trial level remedies to set aside the default judgment. Therefore, it was not necessary for Defendant to assign error both to the trial court\u2019s entry of summary judgment and default judgment. Accordingly, Plaintiffs\u2019 argument is without merit.\nPlaintiffs next contend that \u201cthe arguments in Appellant\u2019s Brief exceed the issues raised by\u201d Defendant\u2019s assignments of error. Specifically, Plaintiffs allege that Defendant\u2019s argument regarding the basis upon which the trial court relied to enter summary judgment was not preserved by Defendant\u2019s third assignment of error. Furthermore, Plaintiffs contend that although Defendant\u2019s second assignment of error may preserve the argument, that assignment of error is overly broad and vague. We disagree.\nDefendant\u2019s second and third assignments of error state:\n2. The trial court\u2019s grant of summary judgment to Plaintiff[s] by its Judgment of March 9, 2006 was in violation of the North Carolina Rules of Civil Procedure and was arbitrary and capricious and an abuse of discretion.\n3. The trial court erred in entering both a default judgment and a summary judgment in the same matter, as the procedural posture of this matter was not suitable for both types of judgments, and the improper rendering of summary judgment removed a trial-court-level procedural remedy otherwise available to Defendant, instead forcing him to pursue an appeal.\nA plain reading of the third assignment of error demonstrates that Defendant preserved an argument regarding the procedural timing of the summary judgment order, but failed to preserve a substantive argument regarding the basis for Judge Locklear\u2019s order. See N.C. R. App. P. 10(a) (\u201c[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal . . . .\u201d). However, for the reasons discussed supra, Defendant\u2019s second assignment of error preserves his substantive argument as to'Judge Locklear\u2019s decision to enter summ\u00e1ry judgment in favor of Plaintiffs. Plaintiffs\u2019 contention is thus without merit and is overruled.\nBy their final argument in their motion to dismiss, Plaintiffs contend that Defendant\u2019s fourth assignment of error violates the North Carolina Rules of Appellate Procedure because \u201cit fails to cite to the specific paragraph of the Judgment which is raised as error, refers vaguely to \u2018what would be required under North Carolina law,\u2019 and is not confined to a single legal issue.\u201d\nDefendant\u2019s fourth assignment of error states:\n4. The trial court\u2019s Judgment of March 9, 2006 ordering Defendant to convey real property well in advance of receiving payment for same was in error as it exceeded the express terms of the contract Plaintiff[s] [were] seeking to enforce and exceeded what would be required of Defendant under North Carolina law.\nThis assignment of error sufficiently directs our attention \u201cto the particular error about which the question is made\u201d and therefore complies with our appellate rules. N.C. R. App. P. 10(c)(1). Accordingly, Plaintiffs\u2019 motion to dismiss Defendant\u2019s fourth assignment of error is denied.\nIn sum, because all of Plaintiffs\u2019 arguments to dismiss Defendant\u2019s appeal lack merit, the motion is denied. For the reasons stated, we address Defendant\u2019s second, third, and fourth assignments of error.\nBy. his second assignment of error, Defendant contends the trial court erred in entering summary judgment against him. Specifically, Defendant asserts that it was improper for the trial court to base \u201ca summary judgment ruling on Defendant\u2019s failure to answer requests for admission when default had already been entered prior to the deadline for his responses],]\u201d and thus, he was prohibited from defending the merits of his case. We disagree.\nAn entry of default is proper \u201c[w]hen a party against whom a judgment for affirmative relief is sought has failed\u201d to file a responsive pleading. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(a) (2005). \u201cThe effect of an entry of default is that the defendant against whom entry of default is made is deemed to have admitted the allegations in plaintiffs complaint... Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991) (citations omitted).\nWhen an entry of default is made and the allegations of the complaint are sufficient to state a claim, \u201cthe defendant has no further standing to contest the merits of plaintiffs right to recover. His only recourse is to show good cause for setting aside the default and, failing that, to contest the amount of the recovery.\u201d\nHartwell v. Mahan, 153 N.C. App. 788, 790-91, 571 S.E.2d 252, 253 (2002) (emphasis added) (quoting Spartan Leasing, Inc., 101 N.C. App. at 460, 400 S.E.2d at 482 (citation omitted)), disc. review denied, 356 N.C. 671, 577 S.E.2d 118 (2003). Since the entry of default only admits the allegations in a plaintiffs complaint but does not admit the sufficiency of those allegations to state a cause of action, it is proper for a defendant to serve responsive pleadings to protect his or her interests.\nWith regard to requests for admissions, the North Carolina Rules of Civil Procedure provide that when a request for admissions is made,\n[t]he matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney[.]\nN.C. Gen. Stat. \u00a7 1A-1, Rule 36(a) (2005). Moreover, \u201c[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 36(b) (2005). \u201cFacts that are admitted under Rule 36(b) are sufficient to support a grant of summary judgment.\u201d Goins v. Puleo, 350 N.C. 277, 280, 512 S.E.2d 748, 750 (1999) (citation omitted).\nIn this case, the entry of default did not preclude Defendant from responding to Plaintiffs\u2019 requests for admissions because Defendant was free to contest the sufficiency of Plaintiffs\u2019 complaint to state a claim for recovery. See Hartwell, supra. However, by not responding to the requests, Defendant admitted the matters requested, including, inter alia, that (1) there was a valid contract for the sale of the property that is the subject of this litigation, (2) Plaintiffs were ready, willing, and able to close on the agreed upon date or within a reasonable time thereafter, and (3) Defendant failed to appear for the scheduled closing or to sign the documents necessary for the closing to be completed, as required by the contract. From these admissions, Plaintiffs established the elements of their breach of contract claim against Defendant. See Lake Mary Ltd. P\u2019ship v. Johnston, 145 N.C. App. 525, 536, 551 S.E.2d 546, 554 (quotation marks and citation omitted) (recognizing that \u201c[t]he elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract\u201d), disc. review denied, 354 N.C. 363, 557 S.E.2d 538 (2001). Furthermore, since the admissions were not withdrawn or amended, summary judgment in favor of Plaintiffs was properly entered by the trial court. See Goins, supra. Accordingly, this argument is overruled.\nBy his third assignment of error, Defendant contends that the trial court committed reversible error because the \u201cposture of the case was not appropriate for the granting of a summary judgment motion, and the court\u2019s entry of both [default judgment and summary judgment] simultaneously ... is an error of law that deprived Defendant of his right... to move to have the default judgment set aside for good cause.\u201d We disagree.\nAn entry of default may be set aside \u201c[f]or good cause shown[.]\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(d) (2005). However, \u201cif a judgment by default has been entered, the judge may set it aside in accordance with Rule 60(b).\u201d Id. Pursuant to Rule 60(b):\nOn motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:\n(1) Mistake, inadvertence, surprise, or excusable neglect;\n(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);\n(3) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;\n(4) The judgment is void;\n(5) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or\n(6) Any other reason justifying relief from the operation of the judgment.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 60(b) (2005).\nOn 11 January 2006, Plaintiffs obtained an entry of default against Defendant for failure to file an answer to the complaint. Defendant never made a Rule 55(d) motion to have the entry of default set aside, and on 9 March 2006, Judge Locklear entered default judgment and summary judgment against Defendant. After entry of these judgments, Defendant could only have sought relief from the trial court pursuant to Rule 60(b). Accordingly, it is clear that Defendant\u2019s \u201cgood cause\u201d argument is misplaced. Additionally, Defendant\u2019s burden would be the same regardless of which judgment he moved to set aside. Therefore, the trial court\u2019s simultaneous entry of default judgment and summary judgment did not forestall Defendant from seeking relief from the trial court. Defendant\u2019s argument is overruled.\nBy his fourth and final assignment of error, Defendant contends that the trial court erred by ordering specific performance \u201cin a form that exceeded the actual terms of the contract.\u201d We do not agree.\n\u201cJudgments must be interpreted like other written documents, not by focusing on isolated parts, but as a whole. The interpreting court must take into account the pleadings, issues, the facts of the case, and other relevant circumstances.\u201d Reavis v. Reavis, 82 N.C. App. 77, 80, 345 S.E.2d 460, 462 (1986) (internal citations omitted). \u201c[W]here a judicial ruling is susceptible of two interpretations, the court will adopt the one which makes it harmonize with the law properly applicable to the case.\u201d Alexander v. Brown, 236 N.C. 212, 215, 72 S.E.2d 522, 524 (1952) (citations omitted).\n\u201cThe remedy of specific performance is an equitable remedy of ancient origin. Its sole function is to compel a party to do precisely what he ought to have done without being coerced by the court.\u201d McLean v. Keith, 236 N.C. 59, 71, 72 S.E.2d 44, 53 (1952) (citation omitted). However, specific performance \u201cis not used to rewrite a contract or to create new contractual duties.\u201d Mizell v. Greensboro Jaycees-Greensboro Junior Chamber of Commerce, Inc., 105 N.C. App. 284, 289, 412 S.E.2d 904, 908 (1992). Therefore, it is reversible error if the \u201ctrial court\u2019s order enforcing the agreement does not accurately reflect the terms to which the parties agreed[.]\u201d Laing v. Lewis, 133 N.C. App. 172, 176, 515 S.E.2d 40, 43 (1999).\nDefendant argues that the trial court altered the terms of the parties\u2019 contract to require Defendant to convey his land to Plaintiffs before Plaintiffs are required to pay him for it. Specifically, Defendant contends that Judge Locklear\u2019s order \u201crequires Defendant essentially to convey title on one date, and then to wait another sixty days for closing . . . [although] the actual contract calls for the conveyance of the deed \u2018at closing\u2019, not before.\u201d We find Defendant\u2019s argument without merit.\nThe contract between the parties requires the property to be conveyed by \u201cGeneral Warranty Deed[.]\u201d To meet this requirement, the judgment requires Defendant to \u201cdeliver [a duly executed General Warranty Deed] to Plaintiffs\u2019 counsel within thirty (30) days of the date of this Judgment, [with] closing [to] occur within ninety (90) days of the date of this Judgment.\u201d It is clear that the judgment does not require Defendant to convey title of the subject property prior to receipt of payment; rather, Judge Locklear ordered Defendant to deliver a General Warranty Deed to Plaintiffs\u2019 attorney to ensure that the closing would occur. The actual transfer of title and funds will occur at the closing. Therefore, Judge Locklear did not order specific performance outside the terms of the contract entered by the parties.\nDefendant also argues that the trial court erred by requiring Defendant to convey to Plaintiffs \u201cclear and marketable title\u201d to his property when the contract calls for the conveyance of \u201cmarketable and insurable title[.]\u201d In particular, Defendant contends that rather \u201cthan requiring \u2018clear\u2019 title, the ... contract provides for the existence of such encumbrances as ad valorem taxes, utility easements, certain restrictive covenants, and \u2018such other encumbrances as may be assumed or specifically approved by Buyer.\u2019 \u201d Again, we disagree.\nBlack\u2019s Law Dictionary defines clear title as \u201c1. A title free from any encumbrances, burdens, or other limitations. 2. See marketable title.- \u2014 Also termed good title.\u201d Black\u2019s Law Dictionary 1522 (8th ed. 2004). Furthermore, Black\u2019s indicates that the term \u201cSee\u201d is used to \u201crefer to closely related terms\u201d or \u201cto a synonymous subentryf,]\u201d and that \u201c[t]he phrase also termed at the end of an entry signals a synonymous word or phrase.\u201d Id. at xxi-xxii. Therefore, it is instructive to examine the definitions of \u201cmarketable title\u201d and \u201cgood title.\u201d\nMarketable title is \u201c[a] title that a reasonable buyer would accept because it appears to lack any defect and to cover the entire property that the seller has purported to sell.... \u2014 Also termed good title; merchantable title; clear title.\u201d Id. at 1523. \u201cA \u2018marketable title\u2019 is one free from reasonable doubt in law or fact as to its validity.\u201d Pack v. Newman, 232 N.C. 397, 400, 61 S.E.2d 90, 92 (1950) (citation omitted). Good title is defined as \u201c1. A title that is legally valid or effective. 2. See clear title (1). 3. See marketable title.\u201d Black\u2019s at 1523.\nWe conclude that \u201cclear title\u201d and \u201cmarketable title\u201d are synonymous. Both terms refer to a title that is free from major defect, such as a judgment or lien, and can be freely conveyed to a reasonable buyer. Furthermore, Defendant makes no showing, and the record fails to demonstrate, that the subject property is somehow encumbered. Therefore, the trial court\u2019s judgment that required Defendant to deliver \u201cclear title\u201d to Plaintiffs did not alter the terms of the agreement, and thus, was not error. Accordingly, this argument is overruled.\nFor the reasons stated, Plaintiffs\u2019 motion to dismiss Defendant\u2019s appeal is denied and the judgment of the trial court is affirmed.\nAFFIRMED.\nJudges McGEE and CALABRIA concur.",
        "type": "majority",
        "author": "STEPHENS, Judge."
      }
    ],
    "attorneys": [
      "The McGee Law Firm, PLLC, by Sam McGee, for Plaintiffs-Appellees.",
      "Kennedy Covington Lobdell & Hickman, L.L.P., by Eric M. Braun and Ann M. Anderson, for Defendant-Appellant."
    ],
    "corrections": "",
    "head_matter": "ANGELA M. KNIEP and DARYL R. KNIEP, Plaintiffs v. HUFF T. TEMPLETON, Defendant\nNo. COA06-967\n(Filed 4 September 2007)\n1. Appeal and Error\u2014 preservation of issues \u2014 appeal from summary judgment \u2014 failure to comply with appellate rule 10 \u2014 motion to dismiss\nThe trial court did not err in a breach of contract case by denying plaintiffs\u2019 motion to dismiss defendant\u2019s appeal even though plaintiffs contend that defendant\u2019s first and second assignments of error are overly broad and vague in violation of N.C. R. App. P. 10(c)(1), because: (1) in reviewing a trial court\u2019s grant of summary judgment, the purpose of the Rule 10 requirements is no longer applicable since exceptions and assignments of error add nothing; (2) defendant\u2019s appeal from a summary judgment order is not subject to dismissal even though his second assignment of error does not comport with the requirements of Rule 10; and (3) defendant\u2019s first assignment of error has been abandoned under N.C. R. App. P. 28(b)(6) since defendant did not contest the propriety of the trial court\u2019s entry of default judgment in his brief.\n2. Appeal and Error\u2014 preservation of issues \u2014 assigning error to both summary judgment and default judgment not necessary \u2014 motion to dismiss\nThe trial court did not err in a breach of contract case by denying plaintiffs\u2019 motion to dismiss defendant\u2019s appeal even though plaintiffs contend that defendant\u2019s third assignment of error only addresses the trial court\u2019s entry of summary judgment and fails to address the entry of default judgment, because it was not necessary to assign error to both.\n3. Appeal and Error\u2014 preservation of issues \u2014 arguments in brief exceeding issues raised by assignments of error\u2014 motion to dismiss\nThe trial court did not err in a breach of contract case by denying plaintiffs\u2019 motion to dismiss defendant\u2019s appeal even though plaintiffs contend the arguments in appellant\u2019s brief exceed the issues raised by defendant\u2019s assignments of error, because although a plain reading of the third assignment of error demonstrated that defendant preserved an argument regarding the procedural timing of the summary judgment order but failed to preserve a substantive argument regarding the basis for the trial court\u2019s order, defendant\u2019s second assignment of error preserved his substantive argument as to the trial court\u2019s decision to enter summary judgment in plaintiffs\u2019 favor.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to cite to specific paragraph of judgment \u2014 vagueness\u2014not confined to single legal issue \u2014 motion to dismiss\nThe trial court did not err in a breach of contract case by denying plaintiffs\u2019 motion to dismiss defendant\u2019s appeal even though plaintiffs contend defendant\u2019s fourth assignment of error violated the North Carolina Rules of Appellate Procedure when it failed to cite to the specific paragraph of the judgment which is raised as error, refered vaguely to what would be required under North Carolina law, and was not confined to a single legal issue, because the assignment of error sufficiently directed the Court\u2019s attention to the particular error as required by N.C. R. App. P. 10(c)(1).\n5. Judgments\u2014 default judgment \u2014 failure to answer requests for admissions \u2014 summary judgment\nThe trial court did not err in a breach of contract case by entering summary judgment against defendant based on defendant\u2019s failure to answer requests for admissions when default had already been entered prior to the deadline of defendant\u2019s responses, because: (1) the entry of default did not preclude defendant from responding to plaintiffs\u2019 requests for admissions since defendant was free to contest the sufficiency of plaintiffs\u2019 complaint to state a claim for recovery; (2) by not responding to the requests, defendant admitted the matters requested and from these admissions defendant established the elements of plaintiffs\u2019 breach of contract claim; and (3) the admissions were not withdrawn or amended.\n6. Civil Procedure\u2014 default judgment \u2014 summary judgment\u2014 simultaneous entry\nThe trial court did not err in a breach of contract case by simultaneously entering both default judgment and summary judgment, because: (1) defendant was not forestalled from seeking relief from the trial court; (2) defendant\u2019s good cause argument is misplaced when he never made a N.C.G.S. \u00a7 1A-1, Rule 55(d) motion to have the entry of default set aside, and thereafter defendant could only have sought relief from the trial court under Rule 60(b); and (3) defendant\u2019s burden would be the same regardless of which judgment he moved to set aside.\n7. Specific Performance\u2014 scope \u2014 breach of contract\nThe trial court did not err in a breach of contract case by ordering specific performance in a form that allegedly exceeded the actual terms of the contract, because: (1) the judgment does not require defendant to convey title of the subject property prior to receipt of payment, but instead the trial court ordered defendant to deliver a general warranty deed to plaintiffs\u2019 attorney to ensure that the closing would occur; (2) the actual transfer of title and funds will occur at the closing; and (3) the trial court\u2019s judgment requiring defendant to deliver clear title did not alter the terms of the agreement since \u201cclear title\u201d and \u201cmarketable title\u201d are synonymous terms both referring to a title that is free from major defect such as a judgment or lien and can be freely conveyed to a reasonable buyer.\nAppeal by Defendant from judgment entered 9 March 2006 by Judge Gary Locklear in Brunswick County Superior Court. Heard in the Court of Appeals 22 February 2007.\nThe McGee Law Firm, PLLC, by Sam McGee, for Plaintiffs-Appellees.\nKennedy Covington Lobdell & Hickman, L.L.P., by Eric M. Braun and Ann M. Anderson, for Defendant-Appellant."
  },
  "file_name": "0622-01",
  "first_page_order": 654,
  "last_page_order": 665
}
