{ "id": 4169884, "name": "ROBERT H. HARDIN, JR., Plaintiff v. KCS INTERNATIONAL, INC. d/b/a CRUISERS YACHTS, and CAPE FEAR YACHT SALES OF NORTH CAROLINA, INC., Defendants", "name_abbreviation": "Hardin v. KCS International, Inc.", "decision_date": "2009-09-15", "docket_number": "No. COA08-996", "first_page": "687", "last_page": "709", "citations": [ { "type": "official", "cite": "199 N.C. App. 687" } ], "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": "620 S.E.2d 726", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634212 ], "year": 2005, "pin_cites": [ { "page": "729", "parenthetical": "holding that heart of contract was installation of a useable driveway and failure to comply with contract's terms regarding driveway's location and materials to be used did not \"entirely deprive^\" party of what he bargained for" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0726-01" ] }, { "cite": "627 S.E.2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635425 ], "year": 2006, "pin_cites": [ { "page": "639", "parenthetical": "quoting Sykes v. Keiltex Indus., Inc., 123 N.C. App. 482, 473 S.E.2d 341 (1996)" } ], "opinion_index": 0, "case_paths": [ "/se2d/627/0636-01" ] }, { "cite": "643 S.E,2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638080 ], "year": 2007, "pin_cites": [ { "page": "435", "parenthetical": "concluding there was no reasonable reliance where home buyer, \" [n] otwithstanding the recommendations of her own inspection report, . . . elected to forego any further inquiry [into the home] and consummated the contract\" to purchase" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0432-01" ] }, { "cite": "357 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491523, 491652, 491622, 491782, 491758, 491602, 491673, 491867 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0507-01", "/nc/357/0507-08", "/nc/357/0507-05", "/nc/357/0507-02", "/nc/357/0507-04", "/nc/357/0507-07", "/nc/357/0507-03", "/nc/357/0507-06" ] }, { "cite": "617 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633745 ], "year": 2005, "pin_cites": [ { "page": "670", "parenthetical": "alteration original" } ], "opinion_index": 0, "case_paths": [ "/se2d/617/0664-01" ] }, { "cite": "622 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634504, 12634503 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "493" } ], "opinion_index": 0, "case_paths": [ "/se2d/622/0493-02", "/se2d/622/0493-01" ] }, { "cite": "672 S.E.2d 686", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642772, 12642773 ], "year": 2009, "opinion_index": 0, "case_paths": [ "/se2d/672/0686-01", "/se2d/672/0686-02" ] }, { "cite": "667 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12642110 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "479-80" }, { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/se2d/667/0470-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 6, "year": 2008, "pin_cites": [ { "page": "365" }, { "page": "366" }, { "page": "366" }, { "page": "364" }, { "page": "366-67", "parenthetical": "identifying \"frustrat[ion] [of] the adversarial process\" as one factor for determining whether default under appellate rules is gross or substantial" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "353 S.E.2d 400", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740373 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0222-01" ] }, { "cite": "173 S.E. 320", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "327" } ], "opinion_index": 0 }, { "cite": "206 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629170 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/206/0144-01" ] }, { "cite": "344 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "74", "parenthetical": "\" '[A]s a general rule, a party is not allowed to rescind where he is not in a position to put the other in status quo by restoring the consideration passed.' \" (quoting Bolich v. Prudential Ins. Co., 206 N.C. 144,. 156, 173 S.E. 320, 327 (1934)" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 56", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521348 ], "year": 1986, "pin_cites": [ { "page": "65", "parenthetical": "\" '[A]s a general rule, a party is not allowed to rescind where he is not in a position to put the other in status quo by restoring the consideration passed.' \" (quoting Bolich v. Prudential Ins. Co., 206 N.C. 144,. 156, 173 S.E. 320, 327 (1934)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0056-01" ] }, { "cite": "589 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "436" } ], "opinion_index": 0 }, { "cite": "161 N.C. App. 658", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8959828 ], "year": 2003, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc-app/161/0658-01" ] }, { "cite": "610 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "361", "parenthetical": "discouraging appellate courts from reviewing merits of appeal when review would leave appellee \"without notice of the basis upon which an appellate court might rule\"" } ], "opinion_index": 0 }, { "cite": "359 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3799435 ], "year": 2005, "pin_cites": [ { "page": "402", "parenthetical": "discouraging appellate courts from reviewing merits of appeal when review would leave appellee \"without notice of the basis upon which an appellate court might rule\"" } ], "opinion_index": 0, "case_paths": [ "/nc/359/0400-01" ] }, { "cite": "382 S.E.2d 801", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "808", "parenthetical": "declining to address constitutional argument first raised in reply brief because \"[t]he reply brief [is] intended to be a vehicle for responding to matters raised in the appellees' brief; it was not intended to be - and may not serve as - a means for raising entirely new matters\"" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 258", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520368 ], "year": 1989, "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0258-01" ] }, { "cite": "439 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531938, 2530635, 2532140, 2528369, 2531327 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0555-05", "/nc/335/0555-01", "/nc/335/0555-04", "/nc/335/0555-02", "/nc/335/0555-03" ] }, { "cite": "439 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 187", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521433, 8521401 ], "pin_cites": [ { "page": "199" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0187-02", "/nc-app/113/0187-01" ] }, { "cite": "442 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "544", "parenthetical": "holding that Court \"will not entertain what amounts to a new argument presented in th[e] reply brief'" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 597", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527848 ], "year": 1994, "pin_cites": [ { "page": "600", "parenthetical": "holding that Court \"will not entertain what amounts to a new argument presented in th[e] reply brief'" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0597-01" ] }, { "cite": "343 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "80 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525309 ], "year": 1986, "pin_cites": [ { "page": "635" } ], "opinion_index": 0, "case_paths": [ "/nc-app/80/0629-01" ] }, { "cite": "174 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352021 ], "year": 2005, "pin_cites": [ { "page": "344-45", "parenthetical": "holding that heart of contract was installation of a useable driveway and failure to comply with contract's terms regarding driveway's location and materials to be used did not \"entirely deprive^\" party of what he bargained for" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0341-01" ] }, { "cite": "100 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "395", "parenthetical": "\"Not every breach of a contract justifies a cancellation and rescission. The breach must be so material as in effect to defeat the very terms of the contract.\"" }, { "page": "395" } ], "opinion_index": 0 }, { "cite": "247 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625754 ], "weight": 2, "year": 1957, "pin_cites": [ { "page": "156", "parenthetical": "\"Not every breach of a contract justifies a cancellation and rescission. The breach must be so material as in effect to defeat the very terms of the contract.\"" }, { "page": "156" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0150-01" ] }, { "cite": "65 So. 2d 736", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9919817 ], "weight": 5, "year": 1953, "pin_cites": [ { "page": "738" }, { "page": "738" }, { "page": "738" }, { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/so2d/65/0736-01" ] }, { "cite": "134 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1964, "pin_cites": [ { "page": "242" }, { "page": "242-43" }, { "page": "243", "parenthetical": "emphasis added" }, { "page": "242" } ], "opinion_index": 0 }, { "cite": "261 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571617 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "43" }, { "page": "43" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0040-01" ] }, { "cite": "2 S.E.2d 871", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1939, "pin_cites": [ { "page": "871-72", "parenthetical": "holding that when a purchased article is so defective that it is not reasonably fit for its intended use, the buyer is entitled to recover from the seller for lack of consideration" }, { "page": "872", "parenthetical": "reversing trial court's grant of nonsuit where plaintiff presented sufficient evidence that laundry boiler purchased from defendant per contract was worthless and not fit for use" } ], "opinion_index": 0 }, { "cite": "215 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631367 ], "weight": 3, "year": 1939, "pin_cites": [ { "page": "668" }, { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0667-01" ] }, { "cite": "182 S.E.2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1971, "pin_cites": [ { "page": "393", "parenthetical": "\"Failure of consideration is a defense to an action brought upon a contract against the party who has not received the performance for which he bargained.\"" }, { "page": "394", "parenthetical": "holding delivery of incorrectly labeled seeds was breach of contract and not failure of consideration" } ], "opinion_index": 0 }, { "cite": "279 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566398 ], "weight": 3, "year": 1971, "pin_cites": [ { "page": "199" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0192-01" ] }, { "cite": "133 S.E. 16", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1926, "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "191 N.C. 731", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631300 ], "year": 1926, "pin_cites": [ { "page": "734-35" } ], "opinion_index": 0, "case_paths": [ "/nc/191/0731-01" ] }, { "cite": "200 S.E. 852", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1939, "pin_cites": [ { "page": "860" } ], "opinion_index": 0 }, { "cite": "214 N.C. 706", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632916 ], "year": 1939, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/214/0706-01" ] }, { "cite": "55 S.E. 724", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1906, "pin_cites": [ { "page": "725", "parenthetical": "internal citation omitted" }, { "page": "725" } ], "opinion_index": 0 }, { "cite": "143 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657128 ], "weight": 2, "year": 1906, "pin_cites": [ { "page": "279-80", "parenthetical": "internal citation omitted" }, { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/nc/143/0276-01" ] }, { "cite": "454 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "339 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2559137, 2559675, 2559959 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/339/0621-02", "/nc/339/0621-03", "/nc/339/0621-01" ] }, { "cite": "450 S.E.2d 542", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "545" } ], "opinion_index": 0 }, { "cite": "117 N.C. App. 220", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524824 ], "year": 1994, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc-app/117/0220-01" ] }, { "cite": "254 S.E.2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "220", "parenthetical": "holding, in affirming dismissal of fraud claim, that \"the pleader in such a situation must allege specifically the individuals who made the misrepresentations of material fact, the time the alleged misstatements were made, and the place or occasion at which they were made\"" } ], "opinion_index": 0 }, { "cite": "41 N.C. App. 121", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547996 ], "year": 1979, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc-app/41/0121-01" ] }, { "cite": "140 S.E.2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "313" } ], "opinion_index": 0 }, { "cite": "263 N.C. 754", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572921 ], "year": 1965, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/nc/263/0754-01" ] }, { "cite": "418 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "659", "parenthetical": "quoting Johnson v. Owens, 263 N.C. 754, 756, 140 S.E.2d 311, 313 (1965)" } ], "opinion_index": 0 }, { "cite": "332 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507867 ], "year": 1992, "pin_cites": [ { "page": "17", "parenthetical": "quoting Johnson v. Owens, 263 N.C. 754, 756, 140 S.E.2d 311, 313 (1965)" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0001-01" ] }, { "cite": "18 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "367", "parenthetical": "holding that plaintiff failed to present evidence warranting inference that defendant did not intend to perform her promise at time she made promise" } ], "opinion_index": 0 }, { "cite": "220 N.C. 806", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11309838 ], "year": 1942, "pin_cites": [ { "page": "811", "parenthetical": "holding that plaintiff failed to present evidence warranting inference that defendant did not intend to perform her promise at time she made promise" } ], "opinion_index": 0, "case_paths": [ "/nc/220/0806-01" ] }, { "cite": "381 S.E.2d 774", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "324 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "year": 1989, "opinion_index": 0 }, { "cite": "377 S.E.2d 285", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1989, "pin_cites": [ { "page": "288-89" }, { "page": "289" }, { "page": "289", "parenthetical": "affirming summary judgment on fraudulent misrepresentation claim when plaintiffs failed to allege defendants' intent at the time alleged fraudulent misrepresentations were made and thus failed to satisfy Rule 9(b)" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 199", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527949 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "204" }, { "page": "205" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0199-01" ] }, { "cite": "594 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "42-43" } ], "opinion_index": 0 }, { "cite": "163 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8917985 ], "year": 2004, "pin_cites": [ { "page": "394-95" } ], "opinion_index": 0, "case_paths": [ "/nc-app/163/0387-01" ] }, { "cite": "459 S.E.2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "260", "parenthetical": "holding that release of \" 'any responsibility [of defendant] whatsoever, of any kind' \" for Honda-Civic released plaintiff's claim that defendant, prior to plaintiff's signing release, fraudulently concealed damage he had caused to car" } ], "opinion_index": 0 }, { "cite": "341 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793042 ], "year": 1995, "pin_cites": [ { "page": "165", "parenthetical": "holding that release of \" 'any responsibility [of defendant] whatsoever, of any kind' \" for Honda-Civic released plaintiff's claim that defendant, prior to plaintiff's signing release, fraudulently concealed damage he had caused to car" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0162-01" ] }, { "cite": "473 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 482", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913849 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0482-01" ] }, { "cite": "176 N.C. App. 736", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301663 ], "year": 2006, "pin_cites": [ { "page": "741", "parenthetical": "quoting Sykes v. Keiltex Indus., Inc., 123 N.C. App. 482, 473 S.E.2d 341 (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/176/0736-01" ] }, { "cite": "297 F. 558", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3638273 ], "year": 1924, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/f/297/0558-01" ] }, { "cite": "176 S.E. 246", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "207 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622785 ], "year": 1934, "pin_cites": [ { "page": "105-06" } ], "opinion_index": 0, "case_paths": [ "/nc/207/0101-01" ] }, { "cite": "453 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1995, "pin_cites": [ { "page": "564" }, { "page": "564" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 87", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916662 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc-app/118/0087-01" ] }, { "cite": "182 N.C. App. 745", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8176645 ], "year": 2007, "pin_cites": [ { "page": "749", "parenthetical": "concluding there was no reasonable reliance where home buyer, \" [n] otwithstanding the recommendations of her own inspection report, . . . elected to forego any further inquiry [into the home] and consummated the contract\" to purchase" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0745-01" ] }, { "cite": "675 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "53", "parenthetical": "holding summary judgment on fraud claim was proper where evidence indicated that plaintiff had \"unfettered access\" and \"ample opportunity to inspect\" land that was subject of claim" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 202", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166905 ], "year": 2009, "pin_cites": [ { "page": "205", "parenthetical": "holding summary judgment on fraud claim was proper where evidence indicated that plaintiff had \"unfettered access\" and \"ample opportunity to inspect\" land that was subject of claim" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0202-01" ] }, { "cite": "587 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "581 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "73" }, { "page": "73-74" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188117 ], "year": 2003, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0577-01" ] }, { "cite": "530 S.E.2d 82", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "85", "parenthetical": "holding that although a husband and wife generally share a confidential relationship entailing a duty to disclose, \"this relationship ends when the parties become adversaries\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080318 ], "year": 2000, "pin_cites": [ { "page": "463", "parenthetical": "holding that although a husband and wife generally share a confidential relationship entailing a duty to disclose, \"this relationship ends when the parties become adversaries\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0459-01" ] }, { "cite": "97 S.E.2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "pin_cites": [ { "page": "885-86" } ], "opinion_index": 0 }, { "cite": "246 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624780 ], "year": 1957, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0129-01" ] }, { "cite": "356 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "583", "parenthetical": "quoting Calloway v. Wyatt, 246 N.C. 129, 134, 97 S.E.2d 881, 885-86 (1957)" } ], "opinion_index": 0 }, { "cite": "319 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749057 ], "year": 1987, "pin_cites": [ { "page": "543", "parenthetical": "quoting Calloway v. Wyatt, 246 N.C. 129, 134, 97 S.E.2d 881, 885-86 (1957)" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0534-01" ] }, { "cite": "529 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "270-71", "parenthetical": "quoting Harton, 81 N.C. App. at 297-98, 344 S.E.2d at 119" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095540 ], "year": 2000, "pin_cites": [ { "page": "675", "parenthetical": "quoting Harton, 81 N.C. App. at 297-98, 344 S.E.2d at 119" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0669-01" ] }, { "cite": "347 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "317 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4776226, 4773993, 4779341, 4777006, 4779249 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/317/0703-04", "/nc/317/0703-01", "/nc/317/0703-05", "/nc/317/0703-02", "/nc/317/0703-03" ] }, { "cite": "344 S.E.2d 117", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "119" }, { "page": "119" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 295", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522612 ], "weight": 2, "pin_cites": [ { "page": "297" }, { "page": "297-98" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0295-01" ] }, { "cite": "209 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "500" } ], "opinion_index": 0 }, { "cite": "286 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563771 ], "year": 1974, "pin_cites": [ { "page": "138" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0130-01" ] }, { "cite": "172 N.C. App. 427", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8320345 ], "year": 2005, "pin_cites": [ { "page": "437", "parenthetical": "alteration original" } ], "opinion_index": 0, "case_paths": [ "/nc-app/172/0427-01" ] }, { "cite": "530 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "835" } ], "opinion_index": 0 }, { "cite": "352 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 684915 ], "year": 2000, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0077-01" ] }, { "cite": "515 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "441" } ], "opinion_index": 0 }, { "cite": "350 N.C. 567", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132244 ], "year": 1999, "pin_cites": [ { "page": "572" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0567-01" ] }, { "cite": "586 S.E.2d 247", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "249" } ], "opinion_index": 0 }, { "cite": "357 N.C. 492", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491872 ], "year": 2003, "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/357/0492-01" ] }, { "cite": "192 P.3d 1279", "category": "reporters:state_regional", "reporter": "P.3d", "case_ids": [ 12256722 ], "year": 2008, "pin_cites": [ { "page": "1281", "parenthetical": "\"A motion to enforce a settlement agreement is treated as a motion for summary judgment. \"" } ], "opinion_index": 0, "case_paths": [ "/p3d/192/1279-01" ] }, { "cite": "233 Ga. App. 200", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 756031 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "200" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ga-app/233/0200-01" ] }, { "cite": "275 Ga. App. 728", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 2753873 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "728" }, { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/ga-app/275/0728-01" ] }, { "cite": "589 F. Supp. 2d 457", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 3174915 ], "year": 2008, "pin_cites": [ { "page": "461", "parenthetical": "\"The standard of review for enforcement motions is similar to the standard applicable for motions for summary judgment.\"" } ], "opinion_index": 0, "case_paths": [ "/f-supp-2d/589/0457-01" ] }, { "cite": "923 F.2d 1024", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10546405 ], "year": 1991, "pin_cites": [ { "page": "1031" } ], "opinion_index": 0, "case_paths": [ "/f2d/923/1024-01" ] }, { "cite": "258 Ala. 658", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 5239829 ], "weight": 2, "year": 1953, "pin_cites": [ { "page": "663", "parenthetical": "addressing merits of erroneously labeled motion to enforce settlement agreement as \"it is immaterial what it is called\" and noting that motion's \"purpose was for this court to give effect to the alleged [settlement] agreement and we have so treated it\"" }, { "page": "415", "parenthetical": "addressing merits of erroneously labeled motion to enforce settlement agreement as \"it is immaterial what it is called\" and noting that motion's \"purpose was for this court to give effect to the alleged [settlement] agreement and we have so treated it\"" } ], "opinion_index": 0, "case_paths": [ "/ala/258/0658-01" ] }, { "cite": "493 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "797", "parenthetical": "emphasis added" }, { "page": "797", "parenthetical": "alterations original" } ], "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": "360 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3789266 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0160-01" ] }, { "cite": "601 S.E.2d 256", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "262" } ], "opinion_index": 0 }, { "cite": "166 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410687 ], "year": 2004, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/166/0017-01" ] }, { "cite": "363 N.C. 124", "category": "reporters:state", "reporter": "N.C.", "year": 2009, "opinion_index": 0 }, { "cite": "193 N.C. App. 249", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4162227 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "259" }, { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc-app/193/0249-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "weight": 5, "year": 2008, "pin_cites": [ { "page": "198" }, { "page": "199" }, { "page": "195-96" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] } ], "analysis": { "cardinality": 1816, "char_count": 54576, "ocr_confidence": 0.745, "pagerank": { "raw": 2.9135235032869254e-07, "percentile": 0.845988897422205 }, "sha256": "ee82cfffd4012750e28d2d52d16cd24e546592209d13f94a3f57cb364e9f8efd", "simhash": "1:1b2346348c7ead06", "word_count": 8745 }, "last_updated": "2023-07-14T20:19:28.879345+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McGEE and BEASLEY concur." ], "parties": [ "ROBERT H. HARDIN, JR., Plaintiff v. KCS INTERNATIONAL, INC. d/b/a CRUISERS YACHTS, and CAPE FEAR YACHT SALES OF NORTH CAROLINA, INC., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nPlaintiff Robert H. Hardin, Jr. appeals from the trial court\u2019s order dismissing his complaint with prejudice and enforcing the settlement agreement between Hardin and defendants KCS International, Inc. doing business as Cruisers Yachts (\u201cCruisers\u201d) and Cape Fear Yacht Sales of North Carolina, Inc. (\u201cCape Fear\u201d). Hardin primarily argues on appeal that the trial court erred in enforcing the settlement agreement because it was induced by defendants\u2019 fraud. Hardin\u2019s evidence fails, however, to establish the necessary elements of a claim for fraud, and we therefore affirm the trial court\u2019s order.\nFacts\nOn 15 December 2005, Hardin purchased a 2006 Cruisers 415 Yacht from Cape Fear for $452,705.00. Cruisers manufactured the boat. Almost immediately after the purchase, Hardin began experiencing problems with the boat. Specifically, Hardin was concerned that the boat did not perform to the manufacturer\u2019s specifications; it had repeated engine, fuel system, and generator failures; the boat\u2019s keypads and air conditioning malfunctioned; water leaked into the boat\u2019s interior; there were numerous defective fixtures and mechanisms; and the fiberglass hull had cracks in it. In March 2006, Hardin demanded either return of the purchase price or a new boat. Defendants refused to return Hardin\u2019s money or provide a new boat, maintaining that any defects or non-conforming conditions would be repaired in a timely fashion under the boat\u2019s warranties.\nHardin filed suit on 26 January 2007, asserting claims against defendants for breach of contract and breach of express and implied warranties. Hardin subsequently served his first request for production of documents on 15 February 2007. Defendants obtained an extension of their time to respond to tbe document request until 19 April 2007. The parties then engaged in settlement negotiations before any response was served.\nOn 26 March 2007, Hardin, defendants, and Volvo Penta of the Americas, Inc. (the manufacturer of the boat\u2019s engines) entered into a \u201cSettlement Agreement and Release.\u201d The settlement agreement provided that in consideration for defendants\u2019 replacing the engines and making specified repairs, Hardin would dismiss his cause of action with prejudice. Hardin was not, however, required to dismiss his action until \u201ccompletion of the engine replacement and other repairs called for [in the settlement agreement], the independent survey of the Boat..., and any further repairs identified by the survey....\u201d The settlement agreement also included a general release:\nIn consideration of the foregoing payments, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, HARDIN and his administrators, personal representatives, successors, heirs, and assigns, hereby release and forever discharge CRUISERS, CAPE FEAR, and VOLVO and their officers, directors, shareholders, employees, agents, servants, successors and assigns, from any and all claims in any way related to the dispute between them regarding the Boat to date. The effect of this Paragraph is intended to be a general release of all claims that HARDIN may have against CRUISERS, CAPE FEAR, and VOLVO as a result of their dealings to date, and specifically including but not limited to the subject matter of this Agreement and the Civil Action, although this release is not intended to release or bar any future claims based upon any new warranty issues arising under any pre-existing warranty that has not yet expired, failure of the repairs required herein, breach of the new engine warranty or extended protection plan provided hereunder, or an action to otherwise enforce the terms of this Agreement.\nCruisers took possession of the boat on 30 March 2007 in order to replace the engines and make the required repairs. Cruisers returned the boat to Hardin on 4 May 2007 and notified him that the repairs had been completed, that an inspection by Wayne Canning had been performed (as provided in the settlement agreement), and that everything was fine with the boat.\nUpon return of the boat, Hardin identified various repairs that had not been done, including fixing a substantial leak around the forward salon windshield and the electronic keypad. In addition, Hardin was concerned about \u201crigged\u201d repairs to the trim tabs, added propeller well extenders, and spliced wiring in the cockpit roof. Although Cruisers claimed that it had fixed the windshield, a representative of Cape Fear determined that the windshield, in fact, had not been repaired. According to Hardin, that leak resulted in additional damage to the boat, including damage to the boat\u2019s coring material.\nOn 26 June 2007, at Hardin\u2019s invitation, Canning performed a second inspection with Hardin and representatives of both defendants present. As a result of that inspection, Canning identified 14 additional repairs that needed to be made, including removing, rebedding, and recaulking the forward salon windows, as well as testing and repairing the boat\u2019s coring material in the areas of the leaks.\nFollowing Canning\u2019s inspection, Hardin agreed to Cruisers\u2019 request to have its own technician inspect the boat. The technician recommended doing repairs that were not as extensive as those indicated as necessary by Canning. In response, Hardin informed defendants that he \u201cconsidered the Settlement Agreement to be null and void and that [he] intended to proceed with litigation.\u201d\nAfter Hardin refused to dismiss his action, the case was referred to mediation. Roughly three weeks prior to the mediation conference, Cruisers produced documents in response to Hardin\u2019s earlier request for production of documents. These documents revealed that Hardin\u2019s boat, while being shipped from Cruisers\u2019 manufacturing facility in Wisconsin to North Carolina, had been involved in a collision with a tree.\nHardin subsequently moved to amend his complaint to include claims for fraud and negligent misrepresentation against Cape Fear for failing to disclose the facts surrounding the collision prior to Hardin\u2019s purchase of the boat. Cruisers filed an answer on 6 August 2007, generally denying Hardin\u2019s allegations and moving to dismiss for failure to state a claim for relief based on the settlement agreement. Cruisers later filed a motion on 16 November 2007 seeking enforcement of the settlement agreement and an order directing Hardin to voluntarily dismiss his complaint with prejudice. Cape Fear filed a similar motion on 26 November 2007.\nIn an order entered 27 March 2008, the trial court dismissed Hardin\u2019s complaint with prejudice. The court ruled: \u201c[A]fter reviewing all matter of. record, including the affidavits filed with the court, and after hearing from counsel for defendants in support of Defendants\u2019 Motions and from counsel for the plaintiff in opposition to Defendants\u2019 Motions as set out in Plaintiff\u2019s Response, and after considering the applicable law,... the Settlement Agreement is valid and enforceable, and the Defendants\u2019 Motions should be GRANTEDf.]\u201d\nOn 23 April 2008, Hardin filed a notice of appeal from the trial court\u2019s order enforcing the settlement agreement. On 28 May 2008, he served defendants with a proposed record on appeal. On 27 June 2008, defendants jointly filed their objections and amendments to Hardin\u2019s proposed record. Hardin served defendants with a second proposed record on 1 August 2008, but defendants refused to stipulate to the settling of the record as requested. Hardin filed the record on appeal with this Court on 19 August 2008. Cruisers filed a motion to dismiss Hardin\u2019s appeal on 26 September 2008.\nMotion to Dismiss Appeal\nCruisers moves to dismiss Hardin\u2019s appeal on the ground that \u201cPlaintiffs failure to timely file the Record on Appeal within the period set forth in Rule 12(a) . . . mandates dismissal of Plaintiff\u2019s appeal because such a default is a jurisdictional default.\u201d Hardin acknowledges that there was a \u201cminimal\u201d delay in filing the record on appeal, but counters that under the Supreme Court\u2019s analysis in Dogwood Dev. & Mgmt. Co. v. White Oak Transp. Co., 362 N.C. 191, 657 S.E.2d 361 (2008), \u201cthe requirements of the current Rule 12(a) are not jurisdictional.\u201d\nThis Court, in Copper v. Denlinger, 193 N.C. App. 249, 259, 667 S.E.2d 470, 479-80 (2008), appeal dismissed in part and disc, review allowed in part, 363 N.C. 124, 672 S.E.2d 686 (2009), held that a violation of Rule 12 of the Rules of Appellate Procedure is nonjurisdictional. Our Supreme Court has stressed that \u201ca party\u2019s failure to comply with nonjurisdictional rule requirements normally should not lead to dismissal of the appeal.\u201d Dogwood, 362 N.C. at 198, 657 S.E.2d at 365. The Supreme Court, in Dogwood, id. at 199, 657 S.E.2d at 366, also explained that an appellate court should impose a sanction of any type only when a party\u2019s nonjurisdictional rules violations rise to the level of a \u201csubstantial failure\u201d under N.C.R. App. P. 25 or a \u201cgross violation\u201d under N.C.R. App. P. 34. In the absence of a substantial or gross violation, the Court should not impose any sanction at all, but rather \u201cthe appellate court should simply perform its core function of reviewing the merits of the appeal to the extent possible.\u201d Dogwood, 362 N.C. at 199, 657 S.E.2d at 366.\nCruisers makes no argument that the violation was substantial or gross. Nor has Hardin\u2019s relatively brief delay in filing the record on appeal hindered our review of the merits of the case or impaired the adversarial process. Nonetheless, failing to comply with the deadlines set forth in the Rules of Appellate Procedure is not a technical or insignificant violation of the rules, but rather is a substantial one. Moreover, Hardin\u2019s counsel did not attempt to rectify the error by filing a motion with this Court requesting either a retroactive extension of time pursuant to N.C.R. App. P. 27 or that the record be deemed timely filed for good cause shown under N.C.R. App. P. 25. Pursuant to Rule 34(b), we, therefore, order Hardin\u2019s counsel to pay the printing costs of this appeal. See Copper, 193 N.C. App. at 262, 667 S.E.2d at 480. We instruct the Clerk of this Court to enter an order accordingly.\nStandard of Review\nOn appeal, the parties disagree as to the standard of review applicable to the trial court\u2019s order granting defendants\u2019 motions to enforce the settlement agreement. Hardin points to the fact that in response to defendants\u2019 motions to enforce the settlement agreement, he submitted \u201caffidavits, depositions, and other discovery materials, the traditional elements of a summary judgment hearing.\u201d He contends that the standard for reviewing a grant of summary judgment should, therefore, apply here. Defendants, on the other hand, maintain that they filed their motions pursuant to Rule 41 of the Rules of Civil Procedure, and thus the trial court\u2019s order should be reviewed under a \u201ccompetent evidence\u201d standard.\nDefendants, in support of their contention, cite Currituck Assocs.-Residential P\u2019ship v. Hollowell, 166 N.C. App. 17, 24, 601 S.E.2d 256, 262 (2004), aff'd per curiam by an equally divided Court, 360 N.C. 160, 622 S.E.2d 493 (2005), in which this Court held that the motion in that case to dismiss the plaintiffs\u2019 claims was made \u201cpursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 41 (2003).\u201d Currituck, however, was affirmed by an equally divided Supreme Court and thus this Court\u2019s decision \u201cstands without precedential value.\u201d 360 N.C. at 160, 622 S.E.2d at 493. Although the opinion could still have persuasive value, we do not find Currituck persuasive on this issue.\nWe note that Currituck relied upon State ex rel. Howes v. Ormond Oil & Gas Co., 128 N.C. App. 130, 493 S.E.2d 793 (1997). This Court in Howes held that \u201cthe general rule\u201d is that a party \u201cmay 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 by petition or motion in the original action.\u201d Id. at 136, 493 S.E.2d at 797 (emphasis added) (internal quotation marks omitted). See also Crawford v. Tucker, 258 Ala. 658, 663, 64 So.2d 411, 415 (Ala. 1953) (addressing merits of erroneously labeled motion to enforce settlement agreement as \u201cit is immaterial what it is called\u201d and noting that motion\u2019s \u201cpurpose was for this court to give effect to the alleged [settlement] agreement and we have so treated it\u201d).\nOther jurisdictions have treated motions to enforce settlement agreements as motions for summary judgment. See, e.g., Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir. 1991) (applying summary judgment standard to motion for enforcement of settlement agreement because \u201c[t]he stakes in summary enforcement of a settlement agreement and summary judgment on the merits of a claim are roughly the same\u2014 both deprive a party of his right to be heard in the litigation\u201d); Parker-Hannifin Corp. v. Schlegel Elec. Materials, Inc., 589 F. Supp. 2d 457, 461 (D. Del. 2008) (\u201cThe standard of review for enforcement motions is similar to the standard applicable for motions for summary judgment.\u201d); DeRossett Enters., Inc. v. Gen. Elec. Capital Corp., 275 Ga. App. 728, 728, 621 S.E.2d 755, 756 (2005) (\u201cBecause the issues raised are analogous to those in a motion for summary judgment, in order to succeed on a motion to enforce a settlement agreement, \u2018a party must show the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the [appellant\u2019s] case.\u2019 \u201d (quoting Superglass Windshield Repair v. Mitchell, 233 Ga. App. 200, 200, 504 S.E.2d 38, 39 (1998)); Hays v. Monticello Ret. Estates, L.L.C., 192 P.3d 1279, 1281 (Okla. Civ. App. 2008) (\u201cA motion to enforce a settlement agreement is treated as a motion for summary judgment. \u201d).\nWe find the reasoning of these cases persuasive and consistent with North Carolina practice and, therefore, apply the summary judgment standard of review. It is well-settled that the standard of review for an order granting a motion for summary judgment requires a two-part analysis of \u201cwhether, on the basis of materials supplied to the trial court, there was a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law.\u201d Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003). The moving party has the burden of demonstrating the lack of any triable issue of fact and entitlement to judgment as a matter of law. Garner v. Rentenbach Constructors Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). The evidence produced by the parties is viewed in the light most favorable to the non-moving party. Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000).\nMotion to Enforce Settlement Agreement\nHardin argues that the trial court erred in enforcing the settlement agreement because, he asserts, (1) it was procured by fraud, (2) there has been a failure of consideration to support the agreement, (3) material breaches of the agreement entitle him to rescission, and (4) his obligation to dismiss his complaint never arose due to the nonoccurrence of certain conditions precedent. We address each contention in turn.\nA. Fraud\nHardin first contends that the trial court erred in dismissing his claims based on its determination that \u201cthe Settlement Agreement is valid and enforceable[.]\u201d Hardin maintains that the settlement agreement is unenforceable due to fraud, arguing that \u201cmisrepresentations or concealment of material facts by [defendants] induced [him] to sign a contract that he would not have signed but for the deception.\u201d\nThe essential elements of fraud are: \u201c \u2018(1) False representation or concealment of a [past or existing] material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party.\u2019 \u201d Phelps-Dickson Builders, L.L.C. v. Amerimann Partners, 172 N.C. App. 427, 437, 617 S.E.2d 664, 670 (2005) (alteration original) (quoting Ragsdale v. Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974)). A claim for fraud may be based on an \u201caffirmative misrepresentation of a material fact, or a failure to disclose a material fact relating to a transaction which the parties had a duty to disclose.\u201d Harton v. Harton, 81 N.C. App. 295, 297, 344 S.E.2d 117, 119 (internal citation omitted), disc. review denied, 317 N.C. 703, 347 S.E.2d 41 (1986).\nHardin primarily claims defendants failed to disclose a material fact, arguing that the settlement agreement should be set aside because defendants did not disclose that his boat had been damaged in transit before it was sold to him. Hardin asserts that he would not have entered into the settlement agreement had he known of the presale shipping damage.\n\u201cA duty to disclose arises where: (1) \u2018a fiduciary relationship exists between the parties to the transaction\u2019; (2) there is no fiduciary relationship and \u2018a party has taken affirmative steps to conceal material facts from the other\u2019; and (3) there is no fiduciary relationship and \u2018one party has knowledge of a latent defect in the subject matter of the negotiations about which the other party is both ignorant and unable to discover through reasonable diligence.\u2019 \u201d Sidden v. Mailman, 137 N.C. App. 669, 675, 529 S.E.2d 266, 270-71 (2000) (quoting Harton, 81 N.C. App. at 297-98, 344 S.E.2d at 119). Hardin relies only on the third circumstance: when one party has knowledge of a latent defect.\nHardin presented evidence and argues that defendants had knowledge of the latent defect \u2014 the pre-sale damage \u2014 and that Hardin was ignorant of the collision. Hardin\u2019s argument ignores, however, the requirement that he be unable to discover the defect through reasonable diligence. This requirement is particularly important when, as here, the parties were engaging in arms-length negotiations. As our Supreme Court has stressed: \u201c \u2018When the parties deal at arms length and [one party] has full opportunity to make inquiry but neglects to do so and the [other party] resorted to no artifice which was reasonably calculated to induce the purchaser to forego investigation action in deceit will not lie.\u2019 \u201d Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 543, 356 S.E.2d 578, 583 (1987) (quoting Calloway v. Wyatt, 246 N.C. 129, 134, 97 S.E.2d 881, 885-86 (1957)).\nIn this case, it is particularly significant that any failure to disclose with respect to the settlement agreement arose in the course of on-going litigation. No negotiation could be more arms length. See Lancaster v. Lancaster, 138 N.C. App. 459, 463, 530 S.E.2d 82, 85 (2000) (holding that although a husband and wife generally share a confidential relationship entailing a duty to disclose, \u201cthis relationship ends when the parties become adversaries\u201d). In this case, Hardin had served a request for production of documents that ultimately, when Hardin failed to dismiss his action, resulted in the production of documents informing him of the collision. Thus, if Hardin had waited until after preliminary discovery had taken place, he would have obtained the very information that he claims defendants had a duty to disclose to him during settlement negotiations. Hardin has not, therefore, shown that he lacked the ability to discover through due diligence \u2014 civil discovery procedures \u2014 the information that his boat was involved in a collision during shipping.\nHardin cites no authority \u2014 and we have found none \u2014 requiring opposing parties in litigation to disclose information adverse to their positions when engaged in settlement negotiations. Such a requirement would be contrary to encouraging settlements. One of the reasons that a party may choose to settle before discovery has been completed is to avoid the opposing party\u2019s learning of information that might adversely affect settlement negotiations. The opposing party assumes the risk that he or she does not know all of the facts favorable to his or her position when choosing to enter into a settlement prior to discovery. On the other hand, the opposing party may also have information it would prefer not to disclose prior to settlement.\nIndeed, in Piedmont Inst. of Pain Mgmt. v. Staton Found., 157 N.C. App. 577, 584, 581 S.E.2d 68, 73, disc. review denied, 357 N.C. 507, 587 S.E.2d 672 (2003), this Court explained-that a party in the \u201cadversarial setting\u201d of settlement negotiations does not \u201chave an affirmative duty to disclose unfavorable facts'.\u201d In Piedmont Inst. of Pain Mgmt., id. at 585, 581 S.E.2d at 73-74, this Court held that because the parties seeking to avoid the settlement agreement had the opportunity to obtain the documents supporting their fraud claim from another party\u2019s counsel before executing the settlement agreement, they had \u201cfailed to exercise due diligence in uncovering the allege,d fraud\u201d for purposes of the statute of limitations.\nThat reasoning applies equally in this case. Hardin had the ability by virtue of the civil discovery rules to obtain from defendants \u2014 prior to entering into the settlement agreement \u2014 information about the pre-sale collision. Hardin, therefore, could have, through the exercise of due diligence, learned of the supposed latent defect. See Sunset Beach Dev., LLC v. AMEC, Inc., 196 N.C. App. 202, 205, 675 S.E.2d 46, 53 (2009) (holding summary judgment on fraud claim was proper where evidence indicated that plaintiff had \u201cunfettered access\u201d and \u201cample opportunity to inspect\u201d land that was subject of claim); MacFadden v. Louf 182 N.C. App. 745, 749, 643 S.E,2d 432, 435 (2007) (concluding there was no reasonable reliance where home buyer, \u201c [n] otwithstanding the recommendations of her own inspection report, . . . elected to forego any further inquiry [into the home] and consummated the contract\u201d to purchase).\nThis Court\u2019s opinion in Talton v. Mac Tools, Inc., 118 N.C. App. 87, 453 S.E.2d 563 (1995), provides further support for the trial court\u2019s entry of judgment enforcing the settlement agreement. The plaintiffs in Tait\u00f3n terminated a distributorship with the defendants, and the defendants sued. Id. at 88-89, 453 S.E.2d at 564. The parties then entered into a settlement agreement that contained a mutual release providing that \u201c \u2018[i]t is the specific intent of this Mutual Release to release and discharge any and all claims and causes of action of any kind or nature whatsoever which may exist, might be claimed to exist, or could have been claimed to exist by Mac Tools, Inc. against [plaintiffs] and by [plaintiffs] against Mac Tools, Inc.....\u2019 \u201d Id. at 89, 453 S.E.2d at 564. Subsequently, the plaintiffs sued the defendants, alleging that the defendants had breached the distributorship agreement and had fraudulently induced the plaintiffs to enter into the distributorship agreement. Id. The plaintiffs alleged in their complaint that they did not learn of the facts that supported their claims until after the mutual release had been signed. Id. The defendants moved for summary judgment based on the settlement agreement and release. Id. In response, the plaintiffs claimed, as Hardin does here, that they would not have signed the mutual release if they had known of the misrepresentations relating to the distributorship agreement.\nOn appeal from the trial court\u2019s grant of summary judgment to the defendants, the plaintiffs in Tait\u00f3n argued that \u201ca genuine issue of fact exists as to whether or not defendants fraudulently procured the release.\u201d Id. at 90, 453 S.E.2d at 565. This Court rejected the plaintiffs\u2019 fraud argument, holding:\nPlaintiffs agreed to release defendants \u201cfrom any and all claims\u201d which are \u201cin any manner related to the transaction which is the operation by [the plaintiff] of a Mac Tools distributorship, . . . whether direct or contingent, liquidated or unliquidated, including but not limited to any stated or unstated claims.\u201d Since this language was broad enough to cover all possible causes of action, whether or not the possible claims are all known, plaintiffs cannot rely on their ignorance of facts giving rise to a claim for fraud as a basis for avoiding the release.\nId. at 90-91, 453 S.E.2d at 565. See also Merrimon v. Postal Telegraph-Cable Co., 207 N.C. 101, 105-06, 176 S.E. 246, 248 (1934) (\u201c \u2018The language in a release may be broad enough to cover all demands and rights to demand or possible causes of action, a complete disch\u00e1rge of liability from one to another, whether or not the various demands or claims have been discussed or mentioned, and whether or not the possible claims are all known.\u2019 \u201d (quoting Houston v. Trower, 297 F. 558, 561 (8th Cir. 1924))).\nIn this case, Hardin entered into a \u201cgeneral release of all claims that HARDIN may have against CRUISERS, CAPE FEAR, and VOLVO as a result of their dealings to date, and specifically including but not limited to the subject matter of this Agreement and the Civil Action . . . .\u201d \u201c \u2018[A] comprehensively phrased general release, in the absence of proof of contrary intent, is usually held to discharge all claims . . . between the parties.\u2019 \u201d Koch v. Bell, Lewis & Assocs., Inc., 176 N.C. App. 736, 741, 627 S.E.2d 636, 639 (2006) (quoting Sykes v. Keiltex Indus., Inc., 123 N.C. App. 482, 473 S.E.2d 341 (1996)).\nThe general release at issue in this case, by its terms, encompasses all claims related to the subject matter of the underlying lawsuit \u2014 the boat \u2014 and, therefore, necessarily encompasses Hardin\u2019s claim that defendants fraudulently concealed the boat\u2019s collision with the tree. See Sims v. Gernandt, 341 N.C. 162, 165, 459 S.E.2d 258, 260 (1995) (holding that release of \u201c \u2018any responsibility [of defendant] whatsoever, of any kind\u2019 \u201d for Honda-Civic released plaintiff\u2019s claim that defendant, prior to plaintiff\u2019s signing release, fraudulently concealed damage he had caused to car). The language of the release in this case is broad enough to encompass all known and unknown claims. See Fin. Servs. of Raleigh, Inc. v. Barefoot, 163 N.C. App. 387, 394-95, 594 S.E.2d 37, 42-43 (2004) (after noting \u201c[o]ur courts have . . . long recognized that parties may release existing but unknown claims,\u201d court held that \u201cwhen the parties stated that they were releasing \u2018all claims of any kind,\u2019 we must construe the release to mean precisely that: an intent to release all claims of any kind in existence\u201d).\nHardin chose to forego discovery, settle his claims, and enter into this general release. Like the plaintiffs in Tait\u00f3n, he cannot now avoid the release by arguing that subsequent to signing the release, he learned of facts that would have persuaded him to not sign the release when he has not demonstrated that defendants had any duty to disclose those facts.\nHardin also contends that Cruisers failed to disclose during settlement negotiations information about how the future repairs would be performed. In making this argument, however, Hardin does not point to any misrepresentation or concealment by Cruisers of a past or existing material fact \u2014 an essential element of fraud \u2014 but rather argu\u00e9s that Cruisers did not disclose that it would not properly perform the repairs.\nAs this Court has explained, \u201c[n]ormally, a promissory misrepresentation will not support an allegation of fraud.\u201d Leake v. Sunbelt Ltd. of Raleigh, 93 N.C. App. 199, 204, 377 S.E.2d 285, 288-89, disc. review denied, 324 N.C. 578, 381 S.E.2d 774 (1989). When, however, \u201ca promissory misrepresentation is made with an intent to deceive the purchaser and at the time of making the misrepresentation the defendant has no intention of performing his promise, fraud may be found.\u201d Id. at 204-05, 377 S.E.2d at 289. Nonetheless, mere proof that a party did not ultimately comply with the contract is not sufficient to establish that the party did not intend, at the time it entered into the contract, to perform under the contract. Williams v. Williams, 220 N.C. 806, 811, 18 S.E.2d 364, 367 (1942) (holding that plaintiff failed to present evidence warranting inference that defendant did not intend to perform her promise at time she made promise).\nHere, Hardin has presented no evidence that Cruisers did not intend, at the time it entered into the settlement agreement, to properly perform the repairs other than evidence that Hardin was dissatisfied with the repairs as they were in fact performed. Without evidence of Cruisers\u2019 intent at the time it entered into the settlement agreement, Hardin has failed to forecast sufficient evidence of fraud to defeat summary judgment.\nHardin next contends that he was induced to enter into the separation agreement by an affirmative misrepresentation. Hardin claims that Wayne Canning, the marine surveyor who was designated in the settlement agreement as the person who would inspect the boat after the repairs, was fraudulently misrepresented as being \u201cindependent\u201d from Cruisers. With respect to this misrepresentation, Hardin stated the following in his affidavit:\n4. . . . [T]he Settlement Agreement called for an \u201cindependent surveyor\u201d to ensure the required repairs were completed in a good and workmanlike manner. Cruisers and its attorney represented that Mr. Canning, who ultimately was identified in the Settlement Agreement, was an independent surveyor. Based on this representation, I agreed to Mr. Canning as the \u201cindependent surveyor.\u201d\n7. In addition to representing that Wayne Canning was an \u201cindependent surveyor,\u201d Cruisers represented to me that Mr. Canning would ensure that all the repairs necessitated by the Settlement Agreement were completed in a good and workmanlike manner. I relied upon these representations in agreeing to the Settlement Agreement.\n10. I reasonably relied upon Cruisers\u2019 representations \u2014 specifically, that Mr. Canning was an independent surveyor, and that Mr. Canning would be called upon to ensure, for me, that the specific repairs called for by the Settlement Agreement were completed in a proper manner \u2014 in entering into the Settlement Agreement. Had I known that Mr. Canning was not independent, and was Cruisers\u2019 in-house surveyor, and that all Cruisers intended to have Mr. Canning do was a general marine survey of the Boat that did not even address the specific issues and repairs set forth in the Settlement Agreement, I never would have entered into the Settlement Agreement. These misrepresentations by Cruisers induced me to enter into the Settlement Agreement.\n(Emphasis added; 4th emphasis original.) Hardin presented no other information on this issue.\nIn his affidavit,\" Hardin failed to identify any specific statement made by anyone. Hardin did not identify which attorney or which person at Cruisers made a statement about Canning being an independent surveyor. He did not describe what specifically was said. And, he did not identify when any statements were made other than that the time frame was prior to execution of the settlement agreement. These omissions are fatal to Hardin\u2019s claim for fraud based on representations regarding Canning.\nAs our Supreme Court has held, \u201c[t]here is a requirement of specificity as to the element of a representation made by the alleged defrauder[:] \u2018The representation must be definite and specific ....\u2019\u201d Rowan County Bd. of Educ. v. U.S. Gypsum Co., 332 N.C. 1, 17, 418 S.E.2d 648, 659 (1992) (quoting Johnson v. Owens, 263 N.C. 754, 756, 140 S.E.2d 311, 313 (1965)). The Supreme Court in Rowan County Board of Education explained the purpose of this requirement: \u201cRequiring proof of a specific representation facilitates courts in distinguishing mere puffing, guesses, or assertions of opinions from representations of material facts.\u201d Id.\nRule 9(b) of the Rules of Civil Procedure requires that \u201cthe circumstances constituting fraud . . . shall be stated with particularity\u201d in the complaint. See Coley v. N.C. Nat\u2019l Bank, 41 N.C. App. 121, 125, 254 S.E.2d 217, 220 (1979) (holding, in affirming dismissal of fraud claim, that \u201cthe pleader in such a situation must allege specifically the individuals who made the misrepresentations of material fact, the time the alleged misstatements were made, and the place or occasion at which they were made\u201d). This Court has held that when a complaint against a corporation fails to allege, as required by Rule 9(b), the time and occasion of the misrepresentation and the individual who made the misrepresentation, then \u201csummary judgment was proper\u201d for failure to allege \u201cthe essential elements of fraud with particularity.\u201d Trull v. Central Carolina Bank & Trust Co., 117 N.C. App. 220, 224, 450 S.E.2d 542, 545 (1994), disc. review denied, 339 N.C. 621, 454 S.E.2d 267 (1995). See also Leake, 93 N.C. App. at 205, 377 S.E.2d at 289 (affirming summary judgment on fraudulent misrepresentation claim when plaintiffs failed to allege defendants\u2019 intent at the time alleged fraudulent misrepresentations were made and thus failed to satisfy Rule 9(b)).\nThus, because Hardin failed to set forth evidence specifically identifying the misrepresentations upon which he relied, he failed to present sufficient evidence of fraud. Consequently, we hold that Hardin presented insufficient evidence to warrant setting aside the settlement agreement based on fraud.\nB. Failure of Consideration\nHardin next contends that because defendants failed to complete the repairs as specified by the settlement agreement, he did not receive the consideration for which he bargained. Although Hardin focuses on the boat\u2019s repairs as the consideration, our Supreme Court has explained that the resolution of litigation is the consideration supporting a settlement agreement:\nThe rule is established that an agreement to compromise and settle disputed matters is valid and binding. The law favors the avoidance or adjustment of litigation, and a compromise made in good faith for such a purpose will be sustained as not only based upon a sufficient consideration but upon the highest consideration of public policy as well, and this, too, without any special regard to the special merits of the controversy or the character or validity of the claims of the respective parties. The real consideration which each party receives, in contemplation of law, under the settlement, is not to be found so much in the mutual sacrifice of any rights, as in the bare fact that they have settled their dispute, which is considered to be of interest and value to each one of them. They give and take, so to speak, not knowing precisely what will be the outcome if they should bring their controversy to the test of the law and subject it to the uncertainties of litigation. Under such circumstances, there is no good reason why the mutual concessions of the parties, resulting in a settlement of their dispute, should not be upheld.\n. . . [T]he prevention of litigation is a valid and adequate consideration, for the law favors the settlement of disputes, and on this ground a mutual compromise is sustained. It is not only a sufficient, but a highly favored consideration, and no investigation into the character or relative value of the different claims involved will be entered into for the purpose of setting aside a compromise, if, of course, the parties are engaged in a lawful transaction, it being enough if the parties to the agreement thought at the time that there was a question between them \u2014 an actual controversy \u2014 without regard to what may afterwards turn out to have been an inequality of consideration.\nYork v. Westall, 143 N.C. 276, 279-80, 55 S.E. 724, 725 (1906) (internal citation omitted). See also Bohannon v. Trotman, 214 N.C. 706, 720, 200 S.E. 852, 860 (1939) (\u201c \u2018Courts should, so far as they can do so legally and properly, support agreements which have for their object the amicable settlement of doubtful rights of parties; the consideration of each agreement is not only valuable, but highly meritorious.\u2019 \u201d (quoting Armstrong v. Polakavetz, 191 N.C. 731, 734-35, 133 S.E. 16, 18 (1926)). Thus, in this case, the settlement agreement between Hardin and defendants is supported in part by consideration in the form of the resolution of the litigation concerning the boat.\nCiting Gore v. George J. Ball, Inc., 279 N.C. 192, 182 S.E.2d 389 (1971), and Pool v. Pinehurst, Inc., 215 N.C. 667, 2 S.E.2d 871 (1939), Hardin contends that the failure of consideration in this case is a defense to enforcing the settlement agreement, entitling him to rescission. See Gore, 279 N.C. at 199, 182 S.E.2d at 393 (\u201cFailure of consideration is a defense to an action brought upon a contract against the party who has not received the performance for which he bargained.\u201d); Pool, 215 N.C. at 668, 2 S.E.2d at 871-72 (holding that when a purchased article is so defective that it is not reasonably fit for its intended use, the buyer is entitled to recover from the seller for lack of consideration). Neither Pool nor Gore are apposite here; both cases involved contracts to purchase goods, rather than agreements to settle a legal controversy between the parties. See Gore, 279 N.C. at 200, 182 S.E.2d at 394 (holding delivery of incorrectly labeled seeds was breach of contract and not failure of consideration); Pool, 215 N.C. at 668, 2 S.E.2d at 872 (reversing trial court\u2019s grant of nonsuit where plaintiff presented sufficient evidence that laundry boiler purchased from defendant per contract was worthless and not fit for use). As York holds, agreements to compromise and settle disputes, such as the one in this case, are supported by \u201creal consideration\u201d in the form of \u201cthe bare fact that [the parties] have settled their dispute, which is considered to be of interest and value to each one of them.\u201d 143 N.C. at 279, 55 S.E. at 725.\nC. Rescission\nHardin next argues that he is entitled to have the settlement agreement rescinded, and thus not enforced, due to material and substantial breaches of the agreement by defendants. We note first that Hardin has made no argument on appeal that defendant Cape Fear failed to comply with the settlement agreement, and, therefore, this argument cannot form a basis for overturning the summary judgment order as to Cape Fear. With respect to Cruisers, Hardin contends that it breached the settlement agreement by \u201c(1) failing to make required repairs; (2) failing to investigate and repair issues referenced in the Settlement Agreement. . . ; (3) making modifications to the Boat not called for by the Settlement Agreement; (4) failing to provide the alleged \u2018independent\u2019 marine surveyor with the information necessary for him to perform his task in a competent fashion; (5) influencing the results of the \u2018independent\u2019 surveyor\u2019s inspections; (6) otherwise intentionally manipulating the circumstances for the purpose of minimizing the repairs to the Boat; and (7) failing to pay [Hardin]\u2019s relocation expenses.\u201d\nIn Wilson v. Wilson, 261 N.C. 40, 43, 134 S.E.2d 240, 242 (1964), the Supreme Court observed that \u201cwhere there is a material breach of the contract going to the very heart of the instrument, the other party to the contract may elect to rescind and is not bound to seek relief at law by an award for damages.\u201d The Court explained further what constituted a material breach going to the heart of the contract: breach of a covenant that \u201c \u2018is such an essential part of the bargain that the failure of it must be considered as destroying the entire contract; or where it is such an indispensable part of what both parties intended that the contract would not have been made with the covenant omitted.\u2019 \u201d Id., 134 S.E.2d at 242-43 (quoting Steak House, Inc. v. Barnett, 65 So. 2d 736, 738 (1953)). The Court held that \u201c \u2018[a] breach of such a covenant amounts to a breach of the entire contract; it gives to the injured party the right to sue at law for damages, or courts of equity may grant rescission in such instances if the remedy at law will not be full and adequate.' \u201d Id., 134 S.E.2d at 243 (emphasis added) (quoting Steak House, Inc., 65 So. 2d at 738). In the absence of such a breach, \u201c[t]he right to rescind does not exist . . . .\"Id. See also Childress v. C.W. Myers Trading Post, Inc., 247 N.C. 150, 156, 100 S.E.2d 391, 395 (1957) (\u201cNot every breach of a contract justifies a cancellation and rescission. The breach must be so material as in effect to defeat the very terms of the contract.\u201d).\nIn this case, the terms of the settlement agreement itself defeat Hardin\u2019s claim that he is entitled to rescission based on Cruisers\u2019 breach of the settlement agreement. The agreement specifically provides for the exact scenario that occurred: \u201c[Tjhis release provision is not intended to release or bar any future claims based upon any new warranty issues arising under any pre-existing warranty that has not yet expired, failure of the repairs required herein, breach of the new engine warranty or extended protection plan provided hereunder, or an action to otherwise enforce the terms of this Agreement.\u201d All of the breaches by Cruisers of the settlement agreement relied upon by Hardin to justify rescission fall within the scope of this provision authorizing Hardin to assert future claims, including through a new action to enforce the terms of the settlement agreement.\nBecause the agreement expressly anticipates further litigation arising out of disputes regarding compliance with the agreement, Hardin cannot show, as Wilson requires, 261 N.C. at 43, 134 S.E.2d at 242 (quoting Steak House, Inc., 65 So. 2d at 738), that full satisfaction with the repairs was \u201c \u2018such an indispensable part of what both parties intended\u2019 \u201d that breach would amount to a breach of the entire contract warranting rescission. In light of this provision, we cannot conclude that the breaches asserted by Hardin are such \u201c \u2018an essential part of the bargain that the failure . . . must be considered as destroying the entire contractId. (quoting Steak House, Inc., 65 So. 2d at 738).\nAs discussed above, the primary purpose of the settlement agreement \u2014 -the heart of the agreement \u2014 was the resolution of the parties\u2019 litigation. This is not a case in which Cruisers refused to do any repairs on the boat after entering into the agreement. The evidence in the record indicates that defendants and Volvo did perform repairs, the boat was surveyed twice by Canning, and additional repairs were done. The parties\u2019 contract gave Hardin the right to seek enforcement of the settlement agreement\u2019s requirements or to seek damages for breach if he was not satisfied that Cruisers\u2019 efforts complied with the settlement agreement. As a result, Hardin was not entitled to rescission of the agreement. See Reaves v. Hayes, 174 N.C. App. 341, 344-45, 620 S.E.2d 726, 729 (2005) (holding that heart of contract was installation of a useable driveway and failure to comply with contract\u2019s terms regarding driveway\u2019s location and materials to be used did not \u201centirely deprive^\u201d party of what he bargained for); McDaniel v. Bass-Smith Funeral Home, Inc., 80 N.C. App. 629, 635, 343 S.E.2d 228, 232 (1986) (although plaintiff presented evidence that defendant sold her defective casket, because evidence was uncontradicted that defendant provided services under burial contract, including services in addition to providing casket, breach was not such essential part of bargain that entire contract was destroyed and, therefore, plaintiff could only seek damages and not rescission).\nD. Condition Precedent\nIn purported response to Cruisers\u2019 reliance on the provision of the mutual release referencing enforcement of the settlement agreement, including for inadequate repairs, Hardin argued, in his reply brief, for the first time, that the trial court erred in dismissing his claims because his obligation to dismiss the action was dependent on fulfillment of conditions precedent of \u201c \u2018completion\u2019 of the required repairs, the \u2018independent\u2019 survey, and any \u2018further repairs identified by the survey.\u2019 \u201d This argument is not purely responsive to Cruisers\u2019 brief, but rather is an affirmative contention as to why Hardin was not required to file a voluntary dismissal with prejudice of his claims and why, therefore, this Court should reverse the trial court.\nThe record on appeal suggests that Hardin did not make this condition precedent argument in the trial court in opposition to defendants\u2019 motions. N.C.R. App. P. 10(b)(1) provides that \u201c[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context.\u201d As our Supreme Court has stressed, \u201ca party\u2019s failure to properly preserve an issue for appellate review ordinarily justifies the appellate court\u2019s refusal to consider the issue on appeal.\u201d Dogwood, 362 N.C. at 195-96, 657 S.E.2d at 364.\nIn any event, in order to properly present the issue for appellate review, Hardin should have included the contention in his main brief. See Oates v. N.C. Dep\u2019t of Corr., 114 N.C. App. 597, 600, 442 S.E.2d 542, 544 (1994) (holding that Court \u201cwill not entertain what amounts to a new argument presented in th[e] reply brief\u2019); Golden Rule Ins. Co. v. Long, 113 N.C. App. 187, 199, 439 S.E.2d 599, 606 (concluding appellant\u2019s reply brief could not \u201cresurrect\u201d abandoned claim where appellant had not raised issue in initial brief and appellee\u2019s brief did not address issue), appeal dismissed and disc, review denied, 335 N.C. 555, 439 S.E.2d 145 (1993); Animal Prot. Soc\u2019y of Durham, Inc. v. State, 95 N.C. App. 258, 269, 382 S.E.2d 801, 808 (1989) (declining to address constitutional argument first raised in reply brief because \u201c[t]he reply brief [is] intended to be a vehicle for responding to matters raised in the appellees\u2019 brief; it was not intended to be \u2014 and may not serve as \u2014 a means for raising entirely new matters\u201d).\nBy raising his condition precedent argument for the first time in his reply brief, Hardin has frustrated the adversarial process by depriving defendants of the opportunity to respond to his argument. See Dogwood, 362 N.C. at 200, 657 S.E.2d at 366-67 (identifying \u201cfrustrat[ion] [of] the adversarial process\u201d as one factor for determining whether default under appellate rules is gross or substantial); Viar v. N.C. Dep\u2019t of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (2005) (discouraging appellate courts from reviewing merits of appeal when review would leave appellee \u201cwithout notice of the basis upon which an appellate court might rule\u201d). This issue is not, therefore, properly before the Court.\nWe note, however, that while Hardin\u2019s condition precedent argument addresses whether he was required to dismiss his claims, it still does not address the general release that he signed \u2014 without any condition precedent \u2014 releasing the underlying claims that he has sought , to resurrect. Hardin has not cited any authority suggesting that his refusal to voluntarily dismiss his action in any way negates the mutual general release.\nBy not dismissing the action, Hardin simply preserved his right to file a motion in the action to enforce the settlement agreement and obtain relief as to any breaches of the settlement agreement. As this Court has explained, a party has \u201ctwo options in deciding how to specifically enforce the terms of the settlement agreement. [A party] could: (1) take a voluntary dismissal of his original action and then institute a new action on the contract, or (2) seek to enforce the settlement agreement by petition or motion in the original action.\u201d Estate of Barber v. Guilford County Sheriff\u2019s Dep\u2019t, 161 N.C. App. 658, 662, 589 S.E.2d 433, 436 (2003). \u201c \u2018Even where a [party] is seeking to obtain some form of equitable relief, rather than a payment of money, he may obtain a judgment in accordance with the terms of a compromise agreement and may thereby obtain whatever performance the [other party] agreed to in the compromise agreement.\u2019 \u201d Howes, 128 N.C. App. at 136-37, 493 S.E.2d at 797 (alterations original) (quoting 15 Am. Jur. 2d, Compromise and Settlement \u00a7 38).\nThus, even if Hardin was not required to voluntarily dismiss this action, that fact did not resurrect the claims he had chosen to release, but rather only preserved Hardin\u2019s ability to enforce the settlement agreement in this action rather than filing a new lawsuit. Hardin did not, however, seek enforcement of the settlement agreement, but rather sought to avoid it. The trial court, therefore, did not err in determining that Hardin\u2019s claims were barred by the release and dismissing this action.\nConclusion\nIn response to defendants\u2019 motions, Hardin could have filed a cross-motion to enforce the settlement agreement, but chose not to do so. Instead, he pursued the claims that had been released in the settlement agreement. We hold that Hardin has failed to present sufficient evidence to raise an issue of fact regarding the enforceability of the settlement agreement and its release. The trial court, therefore, did not err in granting defendants\u2019 motions to enforce the agreement and dismissing Hardin\u2019s action. This ruling does not, however, preclude Hardin from filing a separate action regarding breach and enforcement of the settlement agreement.\nAffirmed.\nJudges McGEE and BEASLEY concur.\n. Volvo Penta of the Americas, Inc. is not a party to this action or this appeal.\n. This argument does not apply to defendant Cape Fear.\n. Hardin does not assert that Cape Fear made any representations about Canning, and, therefore, this argument does not apply to Cape Fear.\n. We note further that \u201c [w]here there is such a breach as permits a rescission, the parties are entitled to be placed in status quo . . . .\u201d Childress, 247 N.C. at 156, 100 S.E.2d at 395. See also Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 65, 344 S.E.2d 68, 74 (1986) (\u201c \u2018[A]s a general rule, a party is not allowed to rescind where he is not in a position to put the other in status quo by restoring the consideration passed.\u2019 \u201d (quoting Bolich v. Prudential Ins. Co., 206 N.C. 144,. 156, 173 S.E. 320, 327 (1934)), disc. review improvidently allowed, 319 N.C. 222, 353 S.E.2d 400 (1987). Hardin has not, however, explained how he would restore Cruisers \u2014 which has performed significant repairs, including the installation by Volvo of new engines \u2014 to the position it held prior to the signing of the settlement agreement.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Hodges & Coxe, P.C., by C. Wes Hodges, II, for plaintiff - appellant.", "McGuireWoods LLP, by Henry L. Kitchin, Jr. and John H. Anderson, Jr., for defendant-appellee KCS International, Inc.", "Hedrick, Gardner, Kincheloe & Garofalo, L.L.P, by Scott Lewis, for defendant-appellee Cape Fear Yacht Sales of North Carolina, Inc." ], "corrections": "", "head_matter": "ROBERT H. HARDIN, JR., Plaintiff v. KCS INTERNATIONAL, INC. d/b/a CRUISERS YACHTS, and CAPE FEAR YACHT SALES OF NORTH CAROLINA, INC., Defendants\nNo. COA08-996\n(Filed 15 September 2009)\n1. Appeal and Error\u2014 record \u2014 not timely filed \u2014 substantial violation\nPlaintiff\u2019s counsel was assessed the printing costs of an appeal where the record was not timely filed. Although the relatively brief delay in filing the record did not hinder review on the merits or impair the adversarial process in this case, failing to comply with the deadlines in the Rules of Appellate Procedure is a substantial violation. Plaintiff\u2019s counsel did not attempt to rectify the error by filing a motion requesting an extension of time or that the record be deemed timely for good cause shown.\n2. Compromise and Settlement\u2014 order to enforce settlement \u2014 standard of review \u2014 summary judgment\nThe summary judgment standard of review is applied to reviewing the trial court\u2019s order granting a motion to enforce a settlement agreement.\n3. Compromise and Settlement\u2014 settlement before discovery \u2014 facts subsequently learned\nThe trial court did not err by dismissing claims of fraud in a settlement agreement where plaintiff chose to forego discovery, settle his claims, and enter into a general release. Plaintiff cannot now avoid the release by arguing that he subsequently learned facts that would have persuaded him not to sign the release when he has not demonstrated that defendant had any duty to disclose those facts.\n4. Compromise and Settlement\u2014 failure of settlement \u2014 allegation of fraud \u2014 no evidence of intent at time of settlement\nPlaintiff failed to forecast sufficient evidence of fraud to defeat summary judgment after the failure of a settlement agreement arising from alleged defects in a yacht and subsequent repairs. Plaintiff did not present evidence that the boat manufacturer (Cruisers) did not intend to perform the repairs properly-at the time it entered into the settlement agreement.\n5. Compromise and Settlement\u2014 failure of settlement \u2014 allegation of fraud \u2014 not sufficiently specific\nPlaintiff presented insufficient evidence to warrant setting aside a settlement agreement based on fraud in an action arising from alleged defects in a boat. Although plaintiff contended that a marine surveyor was fraudulently misrepresented as being independent, he did not specifically identify the misrepresentations on which he relied.\n6. Compromise and Settlement\u2014 consideration \u2014 repairs not completed \u2014 resolution of litigation\nPlaintiff received the consideration for which he bargained in a settlement agreement in an action arising from alleged defects in a boat even though the specified repairs were not completed. The settlement agreement was supported in part by consideration in the resolution of the litigation.\n7. Compromise and Settlement\u2014 enforcement of agreement \u2014 rescission\u2014terms of agreement\nThe terms of a settlement agreement defeated plaintiffs claim that he was entitled to rescission based on breach of the agreement. The contract gave plaintiff the right to seek enforcement of the settlement agreement\u2019s requirements or to seek damages for breach.\n8. Compromise and Settlement\u2014 conditions precedent to dismissal \u2014 general release \u2014 enforcement of settlement not sought\nThe issue of whether plaintiff\u2019s obligation to dismiss his action under a settlement agreement was based on conditions precedent was argued for the first time on appeal and was not properly before the appellate court. Moreover, his contention did not address the general release that he signed which did not have a condition precedent and that released underlying claims he sought to resurrect.\nAppeal by plaintiff from order entered 27 March 2008 by Judge John E. Nobles, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 24 February 2009.\nHodges & Coxe, P.C., by C. Wes Hodges, II, for plaintiff - appellant.\nMcGuireWoods LLP, by Henry L. Kitchin, Jr. and John H. Anderson, Jr., for defendant-appellee KCS International, Inc.\nHedrick, Gardner, Kincheloe & Garofalo, L.L.P, by Scott Lewis, for defendant-appellee Cape Fear Yacht Sales of North Carolina, Inc." }, "file_name": "0687-01", "first_page_order": 713, "last_page_order": 735 }