{ "id": 4364072, "name": "42 EAST, LLC, Plaintiff v. D.R. HORTON, INC., Defendant", "name_abbreviation": "42 East, LLC v. D.R. Horton, Inc.", "decision_date": "2012-02-07", "docket_number": "No. COA10-1570", "first_page": "503", "last_page": "520", "citations": [ { "type": "official", "cite": "218 N.C. App. 503" } ], "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": "641 S.E.2d 404", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637854 ], "year": 2007, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/se2d/641/0404-01" ] }, { "cite": "650 S.E.2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639352, 12639353, 12639354 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/650/0593-01", "/se2d/650/0593-02", "/se2d/650/0593-03" ] }, { "cite": "640 S.E.2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637773 ], "pin_cites": [ { "page": "836" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0832-01" ] }, { "cite": "640 S.E.2d 415", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637658 ], "year": 2007, "pin_cites": [ { "page": "418", "parenthetical": "accord" } ], "opinion_index": 0, "case_paths": [ "/se2d/640/0415-01" ] }, { "cite": "652 S.E.2d 365", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639698 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "369" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0365-01" ] }, { "cite": "659 S.E.2d 442", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640731 ], "year": 2008, "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0442-01" ] }, { "cite": "625 S.E.2d 191", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634964 ], "year": 2006, "pin_cites": [ { "page": "196", "parenthetical": "quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)" } ], "opinion_index": 0, "case_paths": [ "/se2d/625/0191-01" ] }, { "cite": "556 S.E.2d 294", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 564", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138469 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0564-01" ] }, { "cite": "545 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "793" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 387", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11434903 ], "pin_cites": [ { "page": "393-94" } ], "opinion_index": 0, "case_paths": [ "/nc-app/143/0387-01" ] }, { "cite": "194 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "282 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568004 ], "year": 1973, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0610-01" ] }, { "cite": "404 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "683", "parenthetical": "quoting Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973)" } ], "opinion_index": 0 }, { "cite": "329 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556664 ], "year": 1991, "pin_cites": [ { "page": "46", "parenthetical": "quoting Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973)" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0037-01" ] }, { "cite": "314 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "766", "parenthetical": "\"Under our law such 'satisfaction' provisions clearly invest the inspecting party with discretionary power to reject, subject only to restrictions of good faith.\"" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526722 ], "year": 1984, "pin_cites": [ { "page": "104", "parenthetical": "\"Under our law such 'satisfaction' provisions clearly invest the inspecting party with discretionary power to reject, subject only to restrictions of good faith.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0097-01" ] }, { "cite": "200 S.E.2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1973, "pin_cites": [ { "page": "414-15" } ], "opinion_index": 0 }, { "cite": "20 N.C. App. 11", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549000 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/20/0011-01" ] }, { "cite": "515 S.E.2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1999, "pin_cites": [ { "page": "309" }, { "page": "246" }, { "page": "310" }, { "page": "247" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 306", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11219145 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/nc-app/133/0306-01" ] }, { "cite": "159 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "273 N.C. 221", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574994 ], "year": 1968, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0221-01" ] }, { "cite": "182 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8168382 ], "year": 2007, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0052-01" ] }, { "cite": "514 S.E.2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "525", "parenthetical": "\"A 'conclusion of law' is a statement of the law arising on the specific facts of a case which determines the issues between the parties.\"" } ], "opinion_index": 0 }, { "cite": "133 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11216460 ], "year": 1999, "pin_cites": [ { "page": "85", "parenthetical": "\"A 'conclusion of law' is a statement of the law arising on the specific facts of a case which determines the issues between the parties.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/133/0084-01" ] }, { "cite": "361 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3740439 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0580-01" ] }, { "cite": "385 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "556" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 312", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521830 ], "year": 1989, "pin_cites": [ { "page": "316" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0312-01" ] }, { "cite": "181 N.C. App. 641", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375739 ], "weight": 2, "pin_cites": [ { "page": "647" }, { "page": "648-49" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0641-01" ] }, { "cite": "23 S.E.2d 303", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "305", "parenthetical": "quoting Paige on Contracts \u00a7 1112" } ], "opinion_index": 0 }, { "cite": "222 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630614 ], "year": 1942, "pin_cites": [ { "page": "413-14", "parenthetical": "quoting Paige on Contracts \u00a7 1112" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0411-01" ] }, { "cite": "574 S.E.2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "155 N.C. App. 194", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249577 ], "year": 2002, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc-app/155/0194-01" ] }, { "cite": "421 Md. 94", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 3700298 ], "weight": 4, "year": 2011, "pin_cites": [ { "page": "121-22", "parenthetical": "\"[T]he freedom to contract includes the freedom to alter that contract. [Plaintiff] was free, after signing the initial contract, to waive a condition for which it had bargained. See, e.g., 8-40 Corbin on Contracts \u00a7 40.13 (2011" }, { "page": "983", "parenthetical": "\"[T]he freedom to contract includes the freedom to alter that contract. [Plaintiff] was free, after signing the initial contract, to waive a condition for which it had bargained. See, e.g., 8-40 Corbin on Contracts \u00a7 40.13 (2011" }, { "page": "122" }, { "page": "983", "parenthetical": "\"Yet, whether subsequent conduct of the parties amounts to a modification or waiver of their contract is generally a question of fact to be decided by the trier of fact.\" (internal quotation marks omitted)" } ], "opinion_index": 0, "case_paths": [ "/md/421/0094-01" ] }, { "cite": "985 So. 2d 924", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 8189622 ], "year": 2007, "pin_cites": [ { "parenthetical": "\"This Court has consistently held that nonwaiver clauses and clauses that require modifications to be in writing can be found to have been waived upon proper proof.\"" } ], "opinion_index": 0, "case_paths": [ "/so2d/985/0924-01" ] }, { "cite": "2010 UT 65", "category": "reporters:neutral", "reporter": "UT", "case_ids": [ 6988220 ], "weight": 2, "year": 2010, "opinion_index": 0, "case_paths": [ "/p3d/245/0184-01" ] }, { "cite": "100 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1957, "pin_cites": [ { "page": "395", "parenthetical": "\"If the parties verbally assented to extend the time for the completion of the building to October, the parties would be bound thereby notwithstanding Section 3 of the contract which required 'substantial variations from the terms' to be in writing.\"" } ], "opinion_index": 0 }, { "cite": "247 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625754 ], "year": 1957, "pin_cites": [ { "page": "156", "parenthetical": "\"If the parties verbally assented to extend the time for the completion of the building to October, the parties would be bound thereby notwithstanding Section 3 of the contract which required 'substantial variations from the terms' to be in writing.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0150-01" ] }, { "cite": "181 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8375440 ], "year": 2007, "pin_cites": [ { "page": "577", "parenthetical": "accord" } ], "opinion_index": 0, "case_paths": [ "/nc-app/181/0573-01" ] }, { "cite": "168 S.E.2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1933, "pin_cites": [ { "page": "517" } ], "opinion_index": 0 }, { "cite": "204 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620508 ], "year": 1933, "pin_cites": [ { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/nc/204/0449-01" ] }, { "cite": "32 S.E.2d 34", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "pin_cites": [ { "page": "39", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "224 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611363 ], "year": 1944, "pin_cites": [ { "page": "636", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/224/0628-01" ] }, { "cite": "529 S.E.2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "492" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 653", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11095458 ], "year": 2000, "pin_cites": [ { "page": "667" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0653-01" ] }, { "cite": "688 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "201 N.C. App. 493", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4173087 ], "year": 2009, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/201/0493-01" ] }, { "cite": "187 N.C. App. 168", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8372745 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "173" }, { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc-app/187/0168-01" ] }, { "cite": "189 N.C. App. 601", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4157030 ], "year": 2008, "pin_cites": [ { "page": "620" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0601-01" ] }, { "cite": "418 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "107 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527276 ], "year": 1992, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/nc-app/107/0154-01" ] }, { "cite": "175 N.C. App. 628", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8352903 ], "year": 2006, "pin_cites": [ { "page": "632", "parenthetical": "quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0628-01" ] } ], "analysis": { "cardinality": 1442, "char_count": 42778, "ocr_confidence": 0.752, "pagerank": { "raw": 6.411383233214663e-08, "percentile": 0.39655284922016687 }, "sha256": "0a5d3102be025e6d51d23e70d4e61723a4d25b37693bf617c69db4ad1971ece3", "simhash": "1:efebf7f235072b72", "word_count": 7076 }, "last_updated": "2023-07-14T20:21:59.538017+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge BEASLEY concur." ], "parties": [ "42 EAST, LLC, Plaintiff v. D.R. HORTON, INC., Defendant" ], "opinions": [ { "text": "GEER, Judge.\nDefendant D.R. Horton, Inc. (\u201cHorton\u201d) appeals from the Order and Rule 52(a) Judgment entered against Horton and in favor of plaintiff 42 East, LLC (\u201c42 East\u201d) after a bench trial. Because (1) the order did not resolve all the issues necessary to determine Horton\u2019s liability, (2) the findings of fact were made under a misapprehension of the law, and (3) some of the findings are not supported by the evidence, we vacate and remand for further findings of fact and conclusions of law.\nFacts\nHorton is the nation\u2019s largest homebuilder. This case arises out of a Lot Purchase Agreement (\u201cthe Agreement\u201d) entered into by 42 East and Horton on 19 May 2006 that anticipated Horton would purchase 273 fully developed residential lots owned by 42 East for a total price of $10,828,300.00. The initial Agreement provided for five successive closings with Horton purchasing at each closing an approximately equal number of lots.\nWithin five business days of the effective date of the Agreement, the parties executed an escrow agreement pursuant to which Horton deposited, as earnest money, a letter of credit with the escrow agent in the amount of $400,000.00 naming 42 East as the beneficiary. The Agreement provided that in the event Horton defaulted in the performance of any of its obligations under the Agreement, then 42 East\u2019s \u201csole and exclusive remedy\u201d would be to receive payment of the letter of credit as liquidated damages.\nHorton\u2019s obligation to close on the purchase of the lots was contingent on certain specified conditions, including the following contained in Section 5(b) of the Agreement:\n5. Contingencies.\nb. Conditions to Buyer's Obligation to Close. Buyer's obligation to close on the purchase of Lots under this Agreement is contingent upon satisfaction of all of the following conditions (collectively, the \u201cConditions to Closing\u201d)[:] ... (6) Seller shall deliver good and marketable title to the Property to Buyer and the Title Company shall be unconditionally prepared to issue a standard ALTA owner\u2019s form title insurance policy insuring good and marketable fee simple title to the Property with a liability limit in the amount of the Purchase Price at standard premium rates ....\n\u201cGood and marketable title\u201d was defined by Section 8 of the Agreement as \u201ctitle that is insurable by the title insurance company designated by [Horton] . . . under a standard ALTA owner\u2019s form at standard rates, free and clear of all liens, encumbrances and other exceptions to title and rights of others . . . . \u201c Section 8 of the Agreement further provided that 42 East would have until closing to cure all title objections, at their sole cost.\nSection 9 of the Agreement allowed for a 60-day inspection period during which Horton\u2019s agents, consultants, and contractors could enter upon and inspect the property and conduct any tests and studies that Horton deemed necessary or appropriate. Section 9 further specified that \u201c[t]he results of all inspections, tests, examinations and studies of the Property performed during the Inspection Period and the Covenants, Site Plan, Subdivision Plans, Grading Plan, Drainage Plan, and the plans and design for the Private Sewer System must be suitable to [Horton], in its sole discretion.\u201d If, on or before the end of the 60-day period, Horton did not deliver a written \u201cNotice of Suitability,\u201d then the Agreement would \u201cautomatically terminate on that date.\u201d\nOriginally, the Agreement provided that the first closing would occur between 1 November 2006 and 31 December 2006. The parties, however, entered into a First Amendment to the Agreement on 25 August 2006 delaying the initial closing date due to water and sewer issues unrelated to the current dispute.\nIn addition, by mutual agreement, the parties extended the inspection period to 9 October 2006. On 2 October 2006, Chris Crowson, the attorney doing the title work on the property for Horton, notified 42 East of Horton\u2019s objections regarding the title of the property. Mr. Crowson had particular concern about certain issues because he perceived that they would be difficult to resolve. Those issues included an easement identified as the \u201c18\u2019 Cart Path Easement\u201d; a pathway called the \u201cNeedham Path\u201d crossing over a 186.14 acre tract that makes up a portion of the property; and assignments of leases and rents to Four Oaks Bank & Trust Co. that were never cancelled.\nHorton sought title insurance for the property from Investors Title Insurance Company. Investors Title prepared a commitment letter to Horton in September 2006 advising defendant of the terms of the title insurance policy, including the exceptions it would make to its coverage \u2014 in other words, items for which Investors Title would not be obligated to provide coverage if any claim were made on those exceptions.\nAlthough Horton\u2019s normal practice was to deal with significant title issues during the inspection period, Horton, on the advice of Mr. Crowson, decided to propose a Second Amendment to the Agreement rather than just further extending the inspection period. The Second Amendment, executed 6 October 2006, not only moved the inspection period expiration date to 23 October 2006, but also added a section 40 to the Agreement that Horton believed would be its \u201cbest remedy\u201d and would give the company the \u201cprotection\u201d it needed regarding the title issues.\nSection 40 provided:\n40. Additional Contingency. Buyer\u2019s obligation to close on the purchase of Lots under this Agreement is contingent upon Buyer\u2019s receipt from Seller of evidence in a form acceptable to Buyer that all of the objections to title to the Property listed in Exhibit H attached hereto and incorporated herein have been cured or removed (\u201cthe Additional Contingency\u201d). Should this Additional Contingency not be satisfied or waived in writing by Buyer prior to each Closing, then Buyer, at its option, may terminate this Agreement by giving written Notice to Seller, in which event, all of the Earnest Money on deposit with Escrow Agent shall be immediately refunded to Buyer.\nIn turn, Exhibit H listed in substantially similar form the objections set forth in Mr. Crowson\u2019s 2 October 2006 letter. On 12 October 2006, Horton issued a \u201cNotice of Suitability\u201d for the property in which it stated that the property was suitable for purchase.\nIn addition to the title issues, various other factors unrelated to Horton\u2019s activities at the site \u2014 such as the sewer system, roadway design, and grading \u2014 were causing delays on the project. On 23 May 2007, Horton\u2019s on-site manager at the time, Scott Morrison, sent an email to Mr. Crowson discussing a new \u201ctake down\u201d schedule for purchase of the lots on the project. The parties amended the Agreement for a third time on 18 September 2007. That amendment doubled the number of closings from five to ten and substantially reduced the number of lots to be closed at each closing, reducing Horton\u2019s purchase price at the initial closing by $1,000,000.00. The Third Amendment also set a new initial closing date of 28 November 2007.\nShortly after the execution of the Third Amendment, the parties began discussing a fourth amendment to the Agreement in light of the deteriorating real estate market. In fact, Horton ultimately lost $700,000,000.00 for fiscal year ending 31 December 2007.\nOn 5 December 2007, Mr. Morrison sent the terms of a proposed Fourth Amendment to Mr. Crowson and requested that he prepare that amendment. On 18 December 2007, Mr. Crowson emailed Mr. Morrison a proposed draft that set a new initial closing date of 20 January 2008, extended the takedown schedule for the project from 2 March 2010 to 20 October 2012, and provided that Horton would purchase 5 rather than 10 lots per month. Although Horton challenges the finding of fact, the trial court found that \u201c[a]s of December 18, 2007, Gary Lynch, on behalf of the Plaintiff, and Scott Morrison and John Nance, Vice President of Land Acquisition and Development for Defendant, and Kurt Burger, Regional Vice President of Defendant, had agreed to the terms of the Fourth Amendment.\u201d\nOn 21 December 2007, however, Horton instructed Mr. Crowson to put 42 East in default on the project. Section 27 of the Agreement provided that 42 East had 45 days \u2014 or until 7 February 2008 \u2014 in which to cure any alleged default.\nOn 4 January 2008, Larry Kristoff, attorney for 42 East, wrote Mr. Crowson responding to each of Mr. Crowson\u2019s objections to title. Between the execution of the Second Amendment and Mr. Kristoff\u2019s letter, there had been no discussions regarding the objections to title. After receiving Mr. Kristoffs letter, Mr. Crowson discussed with Investors Title what would need to be done to resolve the remaining objections to title to Investors Title\u2019s satisfaction, especially what was required to remove the Needham Path exception from the title insurance policy.\nMr. Crowson then\u2018discussed his conversation with Investors Title with Horton and asked Horton how it would like to handle the title issues. Horton told Mr. Crowson that it had decided to terminate the Agreement. On 28 January 2008, Horton sent a letter terminating the Agreement pursuant to section 5(b) and section 40 of the Agreement.\nOn 25 August 2008, 42 East filed suit against Horton alleging that the company had breached the Agreement. The case was tried in a bench trial before Judge Robert H. Hobgood. At trial, 42 East did not argue that Horton violated any specific term of the Agreement, but rather contended that Horton had violated its duty of good faith and fair dealing.\nBased on the above facts and additional contested findings that Mr. Crowson did not provide Investors Title with certain information, that Horton did not provide Mr. Crowson with pertinent information, that Horton could have obtained title insurance from another carrier without the Needham Path exception, and that Horton did not give 42 East an opportunity to obtain quitclaim deeds that would have removed the Needham Path exception, the trial court concluded that Horton \u201cdid not act in good faith and make a reasonable effort to obtain insurable title to the property as defined by the Lot Purchase Agreement. That constitutes a breach of the contract and places [Horton] in default of a condition or covenant of the contract.\u201d The trial court, therefore, awarded 42 East the $400,000.00 liquidated damages provided for in the Agreement, as well as interest since the filing of the complaint, for a total of $450,666.00. Horton timely appealed to this Court.\nDiscussion\n\u201cThe standard of review on appeal from a non-jury trial is \u2018whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d East Mkt. St. Square, Inc. v. Tycorp Pizza IV, Inc., 175 N.C. App. 628, 632, 625 S.E.2d 191, 196 (2006) (quoting Shear v. Stevens Bldg. Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992)). We review the trial court\u2019s conclusions of law de novo. Id.\nI\nWe first address Horton\u2019s contention that because the Agreement contained a \u201ctime is of the essence\u201d clause, the parties were required to close by the deadline specified in the Agreement\u2019s Third Amendment. The Third Amendment had extended the \u201crequired closing date\u201d for the first closing until 28 November 2007. According to Horton, when 42 East did not close by that date, the contract terminated, and the trial court should have entered judgment in favor of Horton on that basis.\n42 East, in response, first asserts that Horton did not raise this issue at trial and, therefore, did not preserve it for appellate review. Based on our review of the record, it is apparent that Horton did argue at the trial level that the \u201ctime is of the essence\u201d clause required judgment in Horton\u2019s favor. This issue is, therefore, properly before the Court.\nWhen a \u201ccontract containfs] a \u2018[t]ime is of the essence\u2019 provision and plaintiff [does] not close within the required time frame, plaintiff\u2019s claim for breach of contract must fail.\u201d S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 620, 659 S.E.2d 442, 455 (2008). A \u201ctime is of the essence\u201d clause \u201cclearly and unambiguously indicates that a definitive time to close [is] a vital and essential term to the contract.\u201d Fairview Developers, Inc. v. Miller, 187 N.C. App. 168, 173, 652 S.E.2d 365, 369 (2007).\nA \u201ctime is of the essence\u201d clause can, however, be waived. Phoenix Ltd. P\u2019ship of Raleigh v. Simpson, 201 N.C. App. 493, 501, 688 S.E.2d 717, 723 (2009) (holding that \u201cundisputed facts demonstrating that defendants not only never insisted on closing on the specified closing date, but made statements and took actions manifesting an intent that closing should occur at some unspecified later date establish that defendants waived the \u2018time is of the essence\u2019 clause\u201d). As this Court has explained, \u201c \u2018[w]aiver is always based upon an express or implied agreement. There must always be an intention to relinquish a right, advantage or benefit. The intention to waive may be expressed or implied from acts or conduct that naturally leads the other party to believe that the right has been intentionally given up.\u2019 \u201d Fairview Developers, 187 N.C. App. at 172, 652 S.E.2d at 368 (quoting Patterson v. Patterson, 137 N.C. App. 653, 667, 529 S.E.2d 484, 492 (2000)).\nThe trial court\u2019s order does not resolve the issues relating to Horton\u2019s \u201ctime is of the essence\u201d argument, including whether any waiver occurred. The court had no need to address Horton\u2019s \"argument because it found that the parties had, in fact, agreed to a Fourth Amendment extending the initial closing date to 20 January 2008:\n28. On December 18, 2007, Chris Crowson e-mailed Scott Morrison a proposed draft for the Fourth Amendment to the Lot Purchase Agreement. This proposed Amendment set a new closing date for January 20, 2008. Further, it extended the take-down schedule out an additional two years from March 2, 2010 to October 20, 2012. It further changed the takedown schedule for the Defendant by providing that it would purchase five lots per month rather than ten lots per month. These new projections were based on market studies done by the Defendant.\n29. As of December 18, 2007, Gary Lynch, on behalf of the Plaintiff, and Scott Morrison and John Nance, Vice President of Land Acquisition and Development for Defendant, and Kurt Burger, Regional Vice President of Defendant, had agreed to the terms of the Fourth Amendment.\nOn appeal, Horton argues that the trial court\u2019s finding of fact 29 is in error given section 34 of the Agreement. Section 34 provides that \u201c[notwithstanding any other provision herein, neither this agreement nor any amendment hereto shall be a valid, binding and enforceable obligation of [Horton] unless and until such document is ratified in writing by\u201d certain specified \u201ccorporate officers] of [Horton].\u201d (Original in all capitals.) The individuals identified in the trial court\u2019s finding of fact as having agreed to the Fourth Amendment were not, however, included among those specified in section 34 as having authority to ratify an amendment. In any event, as Horton notes, the trial court\u2019s finding of fact does not establish that the agreement to the amendment was in writing.\nBecause the trial court\u2019s order does not address section 34, we cannot determine the basis under which the trial court concluded that the parties had agreed to the Fourth Amendment\u2019s terms. Moreover, 42 East does not provide this Court with any basis for upholding the trial court\u2019s finding of a valid agreement. Instead, it acknowledges that the Fourth Amendment was never executed and then argues that its proposal is nonetheless evidence of waiver of the \u201ctime is of the essence\u201d clause. We must, therefore, remand to the trial court for additional findings of fact and conclusions of law regarding the issue whether the parties entered into a Fourth Amendment to the Agreement.\nIn the event that the trial court determines that no Fourth Amendment extension ever became effective, the trial court must then address whether Horton waived the \u201ctime is of the essence\u201d clause. While Horton acknowledges that, as a general matter, a \u201ctime is of the essence\u201d clause may be w\u00e1ived, it argues that section 30(k) of the Agreement and section 34 (discussed above) preclude any finding of an implied waiver. Section 30(k) of the Agreement provides\nk. Any failure or delay of [Horton] or [42 East] to enforce any term of this Agreement shall not constitute a waiver of such term, it being explicitly agreed that such a waiver must be specifically stated in a writing delivered to the other party in compliance with Section 16 above. Any such waiver by [Horton] or [42 East] shall not be deemed to be a waiver of any other breach or of a subsequent breach of the same or any other term.\nIt has, however, long been the law in North Carolina that\n[t]he provisions of a written contract may be modified or waived by a subsequent parol agreement, or by conduct which naturally and justly leads the other party to believe the provisions of the contract are modified or waived. This principle has been sustained even where the instrument provides for any modification of the contract to be in writing.... It has likewise been sustained where a contract contained a provision to the effect that \"No salesman or agent of the company shall have the right to change or modify this contract.\u201d\nWhitehurst v. FCX Fruit & Vegetable Serv., Inc., 224 N.C. 628, 636, 32 S.E.2d 34, 39 (1944) (emphasis added) (quoting H. M. Wade Mfg. Co. v. Lefkowitz, 204 N.C. 449, 451, 168 S.E.2d 517, 517 (1933)). See also Inland Constr. Co. v. Cameron Park II, Ltd., 181 N.C. App. 573, 577, 640 S.E.2d 415, 418 (2007) (accord). Our Supreme Court has specifically applied this reasoning with respect to a contract providing both that \u201ctime is of the essence\u201d and that substantial modifications of the contract, must be in writing. See Childress v. C. W. Myers Trading Post, Inc., 247 N.C. 150, 156, 100 S.E.2d 391, 395 (1957) (\u201cIf the parties verbally assented to extend the time for the completion of the building to October, the parties would be bound thereby notwithstanding Section 3 of the contract which required \u2018substantial variations from the terms\u2019 to be in writing.\u201d).\nWe see no reason that these holdings by our Supreme Court and this Court should not apply with equal force to \u201cno waiver\u201d provisions such as the no waiver provision in the Agreement, especially given the Supreme Court\u2019s express reference to \u201cwaiver\u201d in Whitehurst. As courts from other jurisdictions have observed:\n\u201cThe general view is that a party to a written contract can waive a provision of that contract by conduct expressly or surrounding performance, despite the existence of a so-called anti-waiver or failure to enforce clause in the contract.\u201d 13 Williston on Contracts \u00a7 39:36 (4th ed.2000). This is \u201cbased on the view that the nonwaiver clause itself, like any other term of the contract is subject to waiver by agreement or conduct during performance.\u201d Id.\nASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 2010 UT 65, 245 P.3d 184, 196 n.8 (2010). See also Retail Developers of Ala., LLC v. E. Gadsden Golf Club, Inc., 985 So. 2d 924, 930 n.3 (Ala. 2007) (\u201cThis Court has consistently held that nonwaiver clauses and clauses that require modifications to be in writing can be found to have been waived upon proper proof.\u201d); Hovnanian Land Inv. Grp., LLC v. Annapolis Towne Ctr. at Parole, LLC, 421 Md. 94, 121-22, 25 A.3d 967, 983 (2011) (\u201c[T]he freedom to contract includes the freedom to alter that contract. [Plaintiff] was free, after signing the initial contract, to waive a condition for which it had bargained. See, e.g., 8-40 Corbin on Contracts \u00a7 40.13 (2011) (\u2018Parties to a contract cannot, even by an express provision in that contract, deprive themselves of the power to alter or vary or discharge it by subsequent agreement.\u2019). Provisions in a contract which purport to limit this ability of parties to modify their contract, implicitly or explicitly, are disfavored. Accordingly, we agree with the Court of Special Appeals that a party may waive, by its actions or statements, a condition precedent in a contract, even when that contract has a non-waiver clause.\u201d).\nWe, therefore, hold that the non-waiver clause in the Agreement does not preclude a determination that Horton waived the \u201ctime is of the essence\u201d clause. Whether or not Horton\u2019s conduct amounted to waiver is, however, a question of fact to be decided by the trial court. See id. at 122, 25 A.3d at 983 (\u201cYet, whether subsequent conduct of the parties amounts to a modification or waiver of their contract is generally a question of fact to be decided by the trier of fact.\u201d (internal quotation marks omitted)). Accordingly, if the trial court determines that the parties did not by amendment further extend the initial closing date, then the trial court must make findings of fact and conclusions of law addressing whether Horton waived the Agreement\u2019s \u201ctime is of the essence\u201d clause.\nII\nHorton further contends that although it terminated the Agreement pursuant to both section 5 and section 40 of the Agreement, the trial court, in concluding that Horton \u201cdid not properly terminate the contract as allowed by the written contract documents,\u201d only addressed section 5. We agree.\nHorton\u2019s letter purporting to terminate the Agreement asserted that the termination was because 42 East had \u201cfailed to cure the objections to title pursuant to Section 40 of the Agreement and Horton is unable to obtain insurable title to the Property pursuant to Section 5(b) of the Agreement.\u201d Horton, therefore, did act under both sections 5 and 40.\nSection 5 imposed upon 42 East a duty to deliver to Horton \u201cgood and marketable fee simple title to the Property with a liability limit in the amount of the Purchase Price at standard premium rates.\u201d On the other hand, section 40 of the contract required that 42 East deliver \u201cevidence in a form acceptable to [Horton] that all of the objections to title to the Property listed in Exhibit H attached hereto and incorporated herein have been cured or removed.\u201d\n\u201cWhen the parties use clear and unambiguous terms, the contract should be given its plain meaning, and the court can determine the parties\u2019 intent as a matter of law.\u201d Alaimo Family Chiropractic v. Allstate Ins. Co., 155 N.C. App. 194, 197, 574 S.E.2d 496, 498 (2002). \u201c \u2018Since the object of construction is to ascertain the intent of the parties, the contract must be considered as an entirety. The problem is not what the separate parts mean, but what the contract means when considered as a whole.\u2019 \u201d Jones v. Casstevens, 222 N.C. 411, 413-14, 23 S.E.2d 303, 305 (1942) (quoting Paige on Contracts \u00a7 1112). It is a basic principle of contract law that \u201c \u2018[a]ll parts of the contract will be given effect if possible.\u2019 \u201d Dysart v. Cummings, 181 N.C. App. 641, 647, 640 S.E.2d 832, 836 (quoting Int\u2019l Paper Co. v. Corporex Constructors, Inc., 96 N.C. App. 312, 316, 385 S.E.2d 553, 556 (1989)), aff\u2019d per curium, 361 N.C. 580, 650 S.E.2d 593 (2007).\nIn its order in this case, the trial court made several findings of fact regarding both sections 5 and 40, including quoting their terms and explaining how section 40 came to be added to the Agreement by an amendment. The trial court\u2019s conclusions of law also discussed section 40 extensively, concluding that it was a condition precedent; that \u201c[t]he language of paragraph 40 of the Second Amendment did not give the Defendant unbounded discretion in the manner in which it addressed the title issues for the property\u201d; and that \u201cthis discretion must be exercised in a reasonable manner based upon good faith and fair play.\u201d\nHowever, the conclusions of law specifically addressing Horton\u2019s liability for breach of contract state only:\n6. [Horton] did not act in good faith and make a reasonable effort to obtain insurable title to the property as defined by the Lot Purchase Agreement. That constitutes a breach of the contract and places the Defendant in default of a condition or covenant of the contract.\n7. [Horton], did not properly terminate the contract as allowed by the written contract documents.\nConclusion of law 6 addresses only the contractual duty imposed by section 5 of the Agreement regarding the delivery of \u201cgood and marketable title,\u201d which is defined as \u201ctitle that is insurable by the title insurance company designated by [Horton].\u201d\nSection 40 does not reference \u201cgood and marketable title\u201d or \u201cinsurable title.\u201d Nowhere in the order does the trial court address whether, as required by section 40, 42 East provided to Horton \u201cevidence in a form acceptable to [Horton] that all of the objections to title to the Property listed in Exhibit H\u201d had been cured or removed or whether Horton waived this condition precedent. Further, although 42 East tried the case based on a theory that Horton breached the implied covenant of good faith and fair dealing, the order does not specifically address whether that implied covenant was violated in connection with section 40, as well as section 5. Although 42 East claims that \u201c[i]nherent in this conclusion [of law 6] is that Horton failed to act in good faith with respect to Paragraph 40,\u201d we cannot agree given the specific language of conclusion of law 6 and the differing requirements of the two sections of the Agreement.\nWe note further that the trial court\u2019s finding of fact 5 states, after quoting section 5(b)(6), that \u201c[Horton] was obligated to close under the Agreement if Plaintiff delivered insurable title as defined by the Agreement.\u201d Although this statement is included as part of a finding of fact, it is in fact a conclusion of law. See In re Everette, 133 N.C. App. 84, 85, 514 S.E.2d 523, 525 (1999) (\u201cA \u2018conclusion of law\u2019 is a statement of the law arising on the specific facts of a case which determines the issues between the parties.\u201d). A conclusion of law mischaracterized as a finding of fact, will, on appeal, be treated as a conclusion of law and reviewed accordingly. In re R.A.H., 182 N.C. App. 52, 60, 641 S.E.2d 404, 409 (2007).\nThe trial court\u2019s apparent belief, reflected in finding of fact 5, that delivery of insurable title was all that was required for closing explains the court\u2019s failure to address the specific terms of section 40. Because, however, all sections of the Agreement must be given effect, and nothing in the Agreement suggests that compliance with section 5 negates the requirements of section 40, the trial court was required to determine whether Horton properly terminated the contract under section 40 as well as section 5.\nOn appeal, 42 East makes various arguments regarding why Horton could not properly terminate the Agreement under section 40. Those arguments must, however, be considered by the trial court in the first instance. As the trial court did not address whether Horton properly terminated the Agreement under section 40, we must remand the case to the trial court for further findings of fact and conclusions of law on that issue.\nHorton further challenges the trial court\u2019s conclusions of law seemingly setting out the standard for determining whether Horton acted properly under section 40, even though it did not include any conclusion of law specifically addressing compliance with the duties under section 40. Conclusions of law 4 and 5 state:\n4. The language of paragraph 40 of the Second Amendment did not give the Defendant unbounded discretion in the manner in which it addressed the title issues for the property.\n5. Our Courts have repeatedly imposed a \u201creasonableness\u201d standard in such situations in which the existence of rights and obligations is within the discretion of one of the parties. MCI [Constructors,] Inc. v. Hazen & Sawyer P.C., 401 [F. Supp. 2d] 504 ([M.D.N.C. ]2005). Where a contract confers on one party a discretionary power affecting the rights of the other, this discretion must be exercised in a reasonable manner based upon good faith and fair play. See [Mezzanotte] v. Freeland, supra at 414.\nHorton argues that to the extent the trial court concluded that the question was whether Horton acted reasonably in terminating the Agreement under section 40, that conclusion is contrary to North Carolina law.\nIn Fulcher v. Nelson, 273 N.C. 221, 224, 159 S.E.2d 519, 522 (1968), the Supreme Court addressed a contract that allowed the plaintiff to \u201c \u2018trade back\u2019 \u201d a car to the defendant if he was not satisfied with the car. After first noting that the plaintiff\u2019s \u201cdissatisfaction with the Cadillac, as distinguished from general dissatisfaction with the terms of the trade, is the ground on which he asserts a contractual right to \u2018trade back],]\u2019 \u201d the Court held that \u201cthe contract conferred this right to \u2018trade back\u2019 if plaintiff\u2019s election was made in good faith on account of his dissatisfaction with the condition in which he found the Cadillac.\u201d Id.\nFulcher thus appears to hold that in deciding whether a party properly terminated a contract pursuant to a satisfaction clause, the question is whether the party acted in good faith. \u201cGood faith\u201d depends on whether the party actually was dissatisfied regarding the condition falling within the party\u2019s discretion or whether the termination of the contract was due to some other reason, such as general dissatisfaction with the terms of the contract.\nMidulla v. Howard A. Cain Co., 133 N.C. App. 306, 515 S.E.2d 244 (1999), supports this interpretation of Fulcher. In Midulla, a contract for purchase of land provided that the plaintiffs\u2019 offer \u201cwas contingent on a \u2018[r]eview of covenants and restrictions, the body of which are satisfactory to Buyer.\u2019 \u201d Id. at 309, 515 S.E.2d at 246. This Court explained that, pursuant to this provision, the \u201cplaintiffs had the discretion to cancel the Contract if they were not satisfied with the covenants and restrictions governing the area where the property was located. However, plaintiffs also had a duty to act in good faith.\u201d Id. The Court held that plaintiffs\u2019 evidence that they \u201cbelieved that \u2018the covenants and restrictions exposed them to the risk of becoming obligated for payments in which they had an inadequate voice in approving\u2019 \u201d was, under the terms of the contract, \u201can adequate reason to cancel the Contract.\u201d Id. at 310, 515 S.E.2d at 247. The Court held that in the absence of evidence supporting defendant\u2019s claim that plaintiffs cancelled the contract simply to avoid their contractual obligations, the plaintiffs were entitled to summary judgment. Id.\nFulcher and Midulla, therefore, focus on whether the party exercising discretion acted in good faith and not whether the party acted reasonably. The cases relied upon by the trial court in its conclusion of law are not to the contrary. The decision by the United States District Court for the Middle District of North Carolina in MCI Constructors is not controlling authority, and to the extent that it suggests that a reasonableness standard applies in reviewing a party\u2019s exercise of discretion, it misapprehends controlling North Carolina law.\nMezzanotte v. Freeland, 20 N.C. App. 11, 200 S.E.2d 410 (1973), upon which MCI Constructors is largely based and which the trial court also cited, does not \u2014 and could not \u2014 overrule Fulcher and is not contrary to Midula. It involved a contract for the purchase and sale of land that was conditioned on the plaintiff\u2019s obtaining financing satisfactory to itself. The defendants argued that this agreement, hinging on the plaintiff\u2019s finding the financing satisfactory, was illusory. In rejecting this argument, this Court held:\nThe contract implies that plaintiffs would in good faith seek proper financing from NCNB and that such financing in keeping with reasonable business standards could not be rejected at the personal whim of plaintiffs but only for a satisfactory cause. Where a contract confers on one party a discretionary power affecting the rights of the other, this discretion must be exercised in a reasonable manner based upon good faith and fair play. ... A promise conditioned upon an event within the promisor\u2019s control is not illusory if the promisor also \u2018impliedly promises to make reasonable effort to bring the event about or to use good faith and honest judgment in determining whether or not it has in fact occurred.\u2019 1 Corbin on Contracts, \u00a7 149, at 659.\nId. at 17, 200 S.E.2d at 414-15.\nIn other words, Mezzanotte involves two prongs. First, the plaintiff was required to make reasonable efforts to obtain financing. Second, any rejection of that financing had to be for \u201csatisfactory cause\u201d after \u201c \u2018us[ing] good faith and honest judgment.\u2019 \u201d Id. (quoting 1 Corbin on Contracts, \u00a7 149, at 659) See also Dysart, 181 N.C. App. at 648-49, 640 S.E.2d at 837 (applying Mezzanote and holding that when plaintiffs had discretionary power to terminate contract for purchase of land if estimated costs of repair exceeded $10,000.00, plaintiffs acted \u201cin a reasonable manner and in good faith and fair play\u201d when they promptly arranged for home inspection within time frame specified in contract).\nMezzanotte and Dysart (as affirmed by the Supreme Court), therefore, require a determination whether Horton acted in a reasonable manner with respect to receipt of 42 East\u2019s \u201cevidence . .. that all of the objections to title to the Property listed in Exhibit H . . . have been cured or removed\u201d \u2014 that is the event referred to in Mezzanotte. In considering Horton\u2019s determination that it was dissatisfied with this evidence, the trial court must determine whether Horton acted in good faith and in the exercise of honest judgment, as set out in Fulcher, Midulla, and Mezzanotte. See also Ledbetter Bros., Inc. v. N.C. Dep\u2019t of Transp., 68 N.C. App. 97, 104, 314 S.E.2d 761, 766 (1984) (\u201cUnder our law such \u2018satisfaction\u2019 provisions clearly invest the inspecting party with discretionary power to reject, subject only to restrictions of good faith.\u201d).\nIll\nFinally, Horton contends that certain of the trial court\u2019s findings of fact are unsupported by the evidence. We note first that 42 East has, as to these findings of fact, argued \u2014 consistent with the standard of review \u2014 that \u201cthe existence of contrary evidence does not mean that the findings at issue are not properly supported . . . .\u201d However, 42 East has not specifically pointed to any evidence that supports the portions of the findings that Horton challenges. It is not adequate for a party to assert that a finding is supported by evidence without including citations to the record and that evidence.\nNonetheless, it is well established that \u201c \u2018[f]acts found under misapprehension of the law will be set aside on the theory that the evidence should be considered in its true legal light.\u2019 \u201d Concerned Citizens of Brunswick Cnty. Taxpayers Ass\u2019n v. State ex rel. Rhodes, 329 N.C. 37, 46, 404 S.E.2d 677, 683 (1991) (quoting Helms v. Rea, 282 N.C. 610, 620, 194 S.E.2d 1, 8 (1973)). Since the trial court made its findings of fact under a misapprehension of law \u2014 that the issue was only whether Horton failed to act in good faith and make a reasonable effort to obtain insurable title to the property \u2014 we must vacate the order and remand so that the trial court can consider the evidence in light of both section 5 and section 40.\nWe note that as to many of the challenged findings of fact, Horton seems to be contending primarily that they are incomplete in that they fail to take into account certain uncontested evidence or, because of the omission of certain facts, they are misleading. On the other hand, whether other findings challenged by Horton are unsupported depends upon how the order is interpreted. For example, Horton contends that the trial court\u2019s finding that Horton did not give 42 East \u201cthe opportunity to obtain the necessary quitclaim deeds\u201d is inconsistent with the fact that 14 months elapsed between the date that Horton first notified 42 East of the objections to title and when Horton terminated the Agreement. The order can, however, be read as finding that Horton should have given 42 East an opportunity to cure the title objections after sending the letter of default. We believe that all of these issues regarding the findings of fact can better be addressed by the trial court on remand.\nBecause, however, the scope of the remand could be affected by Horton\u2019s challenges to the trial court\u2019s findings relating to a title insurance policy 42 East obtained from Old Republic Title Insurance Company, we address the sufficiency of the evidence supporting those findings. Finding of fact 47 provided in pertinent part that \u201c[o]n August 6, 2006, the Plaintiff provided the Defendant with a copy of a 17.4 million dollar title insurance policy from Old Republic Title Insurance Company that contained the following \u2018temporary exception\u2019 with respect to the Needham Path . . . .\u201d Finding of Fact 48 further found that \u201c[t]he Old Republic Title Insurance Company policy exception for the Needham Path provided that it would be deleted upon completion of the roads for the project which were completed on January 16, 2008.\u201d The trial court then found that Horton did not provide its attorney, Mr. Crowson, with a copy of the Old Republic policy (finding of fact 49) and that Horton \u201ccould have obtained title insurance for the property from Old Republic National Title Insurance Company without the Needham Path exception but the Defendant did not provide a copy of the Old Republic policy to its attorney Chris Crowson and he was not aware of the fact that Old Republic had previously issued a policy for the property.\u201d\nThe record does not support the trial court\u2019s finding that 42 East provided Horton with a copy of the Old Republic policy. Significantly, 42 East has pointed to no evidence supporting that portion of the finding. Instead, testimony presented at trial, along with the documentary exhibits in this case, show that 42 East only provided the Old Republic commitment to Horton and not the insurance policy itself. That commitment evidenced title exceptions for the Needham Pathway and that 18\u2019 Cart Path that were at issue in clearing the title for closing. As Horton did not have a copy of the Old Republic policy, it could not have provided the policy to its closing attorney, Chris Crowson, contrary to findings of fact 49 and 50.\nIn addition, the trial court\u2019s findings of fact indicating that the temporary exception for Needham Path would be deleted upon completion of the roads is not wholly correct. The Old Republic policy also included a permanent exception for \u201c[b]uilding restriction lines, easements and any other facts shown on plat(s) recorded in Book of Maps 63, Page 232; Book 64, Page 294; Book 67, Page 16 & 256; and Book 52, Page 407, Johnston County Registry.\u201d The plats to which the exception refers contain the Needham Pathway and 18\u2019 Cart Path, and testimony established that because of the permanent exception, the Needham Path exception would survive even after completion of the roads. Therefore, to the extent that the trial court found that Horton could have obtained title insurance from Old Republic without the Needham Path exception, that finding is not supported by the evidence.\nThese findings of fact are material to the trial court\u2019s conclusion that Horton \u201cdid not act in good faith and make a reasonable effort to obtain insurable title to the property as defined by the Lot Purchase Agreement.\u201d While the record contains evidence that could support the trial court\u2019s conclusion that Horton did not properly terminate the contract under section 5, we cannot assume that the trial court would have reached the same decision in the absence of its findings regarding the Old Republic title insurance policy. On remand, the trial court must, therefore, also revisit its conclusion of law regarding section 5.\nConclusion\nWe, therefore, vacate the order below and remand for further findings of fact and conclusions of law. The trial court is free to revisit those findings, although it is not required to do so, with the exception of the portions of the findings related to the Old Republic title insurance policy discussed above. See Friend-Novorska v. Novorska, 143 N.C. App. 387, 393-94, 545 S.E.2d 788, 793 (holding that when appellate court vacates trial court judgment and order, that judgment and order is \u201cvoid and of no effect:\u201d on remand; trial court is \u201cfree to reconsider the evidence before it and to enter new and/or additional findings of fact based on the evidence, with the exception that the trial court [i]s bound on remand by any portions of the ... order affirmed by this Court\u201d), aff\u2019d per curiam, 354 N.C. 564, 556 S.E.2d 294 (2001). We stress, however, that nothing in this opinion is intended to express any view on what conclusion the trial court should reach.\nVacated and Remanded.\nChief Judge MARTIN and Judge BEASLEY concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Manning, Fulton & Skinner, P.A., by Robert S. Shields, Jr. and Katherine M. Bulfer, for plaintiff-appellee.", "Smith Moore Leatherwood LLP, by Sidney S. Eagles, Jr., Stephen W. Petersen, and Elizabeth Brooks Scherer, for defendant-appellant." ], "corrections": "", "head_matter": "42 EAST, LLC, Plaintiff v. D.R. HORTON, INC., Defendant\nNo. COA10-1570\n(Filed 7 February 2012)\n1. Contracts \u2014 home construction \u2014 closing date \u2014 extension of time \u2014 time of the essence\nThe trial court erred in a breach of contract case arising out of a home building contract by concluding that defendant breached the contract. The findings and conclusions were inadequate to determine if the required closing date had been extended or if the \u201ctime is of the essence\u201d clause was breached or waived.\n2. Contracts \u2014 home construction \u2014 termination of agreement\nThe trial court erred in a breach of contract case arising out of a home building contract by concluding that defendant did not properly terminate the contract. The trial court was required to determine whether defendant properly terminated the contract under sections 40 and 5 of the agreement, but did not address whether defendant properly terminated the agreement under section 40. Furthermore, the trial court did not address whether defendant acted in good faith and in the exercise of honest judgment under section 40.\n3. Contracts \u2014 home construction \u2014 findings of fact \u2014 misapprehension of law\nThe trial court erred in a breach of contract case arising out of a home building contract by concluding that defendant breached the contract. Because the trial court made its findings of fact under a misapprehension of law, the order was vacated and remanded to the trial court.\nAppeal by defendant from judgment entered 10 May 2010 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 17 August 2011.\nManning, Fulton & Skinner, P.A., by Robert S. Shields, Jr. and Katherine M. Bulfer, for plaintiff-appellee.\nSmith Moore Leatherwood LLP, by Sidney S. Eagles, Jr., Stephen W. Petersen, and Elizabeth Brooks Scherer, for defendant-appellant." }, "file_name": "0503-01", "first_page_order": 513, "last_page_order": 530 }