{ "id": 8574329, "name": "WHALEHEAD PROPERTIES, a partnership v. COASTLAND CORPORATION, OCEAN SANDS PROPERTY OWNERS ASSOCIATION, INC. and OCEAN SANDS, INC.", "name_abbreviation": "Whalehead Properties v. Coastland Corp.", "decision_date": "1980-02-01", "docket_number": "No. 124", "first_page": "270", "last_page": "284", "citations": [ { "type": "official", "cite": "299 N.C. 270" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "256 S.E. 2d 284", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": -1 }, { "cite": "42 N.C. App. 198", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553305 ], "year": 1979, "opinion_index": -1, "case_paths": [ "/nc-app/42/0198-01" ] }, { "cite": "92 N.C. 547", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274520 ], "year": 1885, "opinion_index": 0, "case_paths": [ "/nc/92/0547-01" ] }, { "cite": "353 F. 2d 369", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 848386 ], "year": 1965, "pin_cites": [ { "page": "372" } ], "opinion_index": 0, "case_paths": [ "/f2d/353/0369-01" ] }, { "cite": "114 S.E. 2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625567 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0724-01" ] }, { "cite": "210 S.E. 2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "257" } ], "opinion_index": 0 }, { "cite": "286 N.C. 314", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565349 ], "year": 1974, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0314-01" ] }, { "cite": "173 S.E. 598", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "206 N.C. 247", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629662 ], "year": 1934, "pin_cites": [ { "page": "250" } ], "opinion_index": 0, "case_paths": [ "/nc/206/0247-01" ] }, { "cite": "188 S.E. 2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "614" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550491 ], "year": 1972, "pin_cites": [ { "page": "484" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0481-01" ] }, { "cite": "64 S.E. 2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "233 N.C. 428", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609855 ], "year": 1951, "pin_cites": [ { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/nc/233/0428-01" ] }, { "cite": "180 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "534" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "240 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "343" } ], "opinion_index": 0 }, { "cite": "294 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572343 ], "year": 1978, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0200-01" ] }, { "cite": "229 S.E. 2d 278", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557433 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0145-01" ] }, { "cite": "57 S.E. 2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] }, { "cite": "251 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1979, "pin_cites": [ { "page": "449" }, { "page": "491" }, { "page": "447" } ], "opinion_index": 0 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0486-01" ] } ], "analysis": { "cardinality": 977, "char_count": 32360, "ocr_confidence": 0.818, "pagerank": { "raw": 2.806540379996348e-07, "percentile": 0.837244372162238 }, "sha256": "7f7dffc9a79ca5afb80f501cc2d50c800d5b237916c6e7b1b5b32e1402195105", "simhash": "1:7feb947d0c3eb47e", "word_count": 5089 }, "last_updated": "2023-07-14T21:53:45.777487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WHALEHEAD PROPERTIES, a partnership v. COASTLAND CORPORATION, OCEAN SANDS PROPERTY OWNERS ASSOCIATION, INC. and OCEAN SANDS, INC." ], "opinions": [ { "text": "BROCK, Justice.\nThe Court of Appeals in its dismissal of the parties\u2019 appeals relied on our opinion in Tridyn Industries, Inc. v. American Mutual Insurance Company, 296 N.C. 486, 251 S.E. 2d 443 (1979). For the reasons which follow we hold Tridyn does not require dismissal of either plaintiff\u2019s or defendants\u2019 appeal.\nWe turn first to plaintiff\u2019s right of appeal. It is settled law in this State that the right of appeal lies from the final judgment of superior court or from an interlocutory order of the superior court which affects some substantial right. Veazey v. Durham, 231 N.C. 357, 362, 57 S.E. 2d 377, 381 (1950); Tridyn Industries, Inc. v. American Mutual Insurance Company, supra. Right of appeal is now statutorily provided by G.S. 1-277 and G.S. 7A-27(b). G.S. l-277(a) provides:\n\u201cAn appeal may be taken from every judicial order or determination of a judge of a superior or district court, . . . which affects a substantial right claimed in any action or proceeding. . . .\u201d\nG.S. 7A-27(b) provides:\n\u201cFrom any final judgment of a superior court, other than one [involving a sentence of death or life imprisonment where appeal is direct to the North Carolina Supreme Court], or one based on a plea of guilty or nolo contendere, including any final judgment entered upon review of a decision of an administrative agency, appeal lies of right to the Court of Appeals.\u201d\nIn this case plaintiff alleged three causes of action against the defendants. The first cause of action was settled by the consent of the parties. In its second cause of action, plaintiff was granted summary judgment and received a permanent injunction preventing the defendants from closing or threatening to deny plaintiff access to the \u201cSlick Easement.\u201d No exception was taken to this judgment by either party. In its third cause of action, plaintiff prayed for a declaratory judgment establishing, when reasonably construed under the agreements entered into between plaintiff and defendants, that plaintiff\u2019s redesign of the development plats in the Whalehead property complied with the agreements entered into between plaintiff and defendants. Judge Snepp held that plaintiff\u2019s redesign failed to comply with the \u201cCurrituck Plan\u201d and that plaintiff was in breach of its agreement. Therefore, on plaintiff\u2019s third cause of action summary judgment was entered in favor of the defendants.\nIn its third cause of action plaintiff prayed for no further relief beyond the declaratory judgment. Thus by the parties settling the first cause of action by consent and by Judge Snepp granting summary judgment in plaintiff\u2019s favor on its second cause of action, and against plaintiff on its third cause of action, plaintiff received a final judgment as to all causes of action which it had brought.\nThe summary judgment for defendants on plaintiff\u2019s third cause of action denies plaintiff a trial on the issue of whether plaintiff\u2019s redesign of the development of its Whalehead property complied with the agreements between plaintiff and defendants, and disposes of all of plaintiff\u2019s causes of action. Thus the order is a final judgment as to all of plaintiff\u2019s causes of action and affects a substantial right of plaintiff. The order is therefore appealable under G.S. 1-277(a) and G.S. 7A-27(b). See Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E. 2d 278 (1976).\nWe now turn to defendants\u2019 right of appeal from Judge Snepp\u2019s denial of the specific performance prayed for in its counterclaim. Judge Snepp granted summary judgment in favor of the defendants on their counterclaim, establishing as a matter of law plaintiff\u2019s breach of the contractual agreements. However, Judge Snepp rejected defendants\u2019 claim for specific performance. Judge Snepp made no ruling on defendants\u2019 claim for monetary damages, as Judge Fountain\u2019s pre-trial order had delayed this decision until a subsequent trial. From Judge Snepp\u2019s denial of the specific performance remedy, defendants claim a right to appeal.\nIn our recent decision of Tridyn Industries, Inc. v. American Mutual Insurance Company, supra, we held that in a suit by plaintiff for money damages, defendant was not entitled to appeal from an order granting partial summary judgment in favor of the plaintiff on the issue of defendant\u2019s liability prior to the trial court\u2019s determination of the damages to be awarded. Id. at 494, 251 S.E. 2d at 449. In Tridyn, defendant appealed from an order granting plaintiff\u2019s motion for summary judgment as to the liability of the defendant for breach of an insurance contract. Plaintiff had at first sought summary judgment on all issues before the court, including damages, but moved for summary judgment solely on the issue of liability. The trial court entered judgment for the plaintiff on the issue of liability but concluded that there was a genuine issue as to the amo\u00fant of money damages which plaintiff was entitled to recover. From the adverse summary judgment order defendant appealed. In holding defendant\u2019s appeal improper as interlocutory this Court noted:\n\u201cIf this partial summary judgment is in error defendant can preserve its right to complain of the error on appeal from the final judgment by a duly entered exception. Even if defendant is correct on its legal position, the most it will suffer from being denied, an immediate appeal is a trial on the issue of damages. Id. at 491, 251 S.E. 2d at 447. (Emphasis ours.)\nHere, unlike Tridyn where denial of defendant\u2019s interlocutory appeal subjected him only to a trial on damages, which was ap-pealable at the entry of final judgment, denial of these defendants\u2019 appeal will eliminate the opportunity to obtain specific performance. As we noted above, our decision in Tridyn held that an interlocutory order is appealable if it affects a substantial right, and will work injury to the appealing party if not corrected before an appeal from final judgment.\nIn determining whether an interlocutory judgment affects a substantial right, \u201c[i]t is usually necessary to resolve the question in each case by considering the particular facts of that case . . . .\u201d Waters v. Qualified Personnel, Inc., 294 N.C. 200, 208, 240 S.E. 2d 338, 343 (1978). In the case at bar, the preemptory denial by the trial court of specific performance will preclude the defendants from even seeking such relief at the subsequent trial on the issue of damages. By the time final judgment is rendered on defendants\u2019 counterclaim, plaintiff may have been able to develop the redesigned Whalehead property in a manner not in compliance with the \u201cCurrituck Plan.\u201d After development is complete an order to specifically perform the contract according to its terms would be foreclosed, and defendants would be forced to accept the remedy of money damages, which it argues is not an effective remedy nor the one it seeks.\nWe are of the opinion that denial of defendants\u2019 claim to the equitable relief of specific performance prior to hearing evidence on the question of damages, affected a substantial right of the defendants and therefore was appealable. We now turn to the substantive issues raised by these appeals.\nPlaintiff contends that the trial court erred in denying its motion for summary judgment, and granting summary judgment in favor of the defendants on plaintiff\u2019s third cause of action. By granting summary judgment in favor of the defendants, Judge Snepp ruled as a matter of law that plaintiff\u2019s redesign of the unsold portion of its Whalehead subdivision was in breach of the parties\u2019 contractual agreement whereby plaintiff was guaranteed access to the \u201cSlick Easement.\u201d The portion of the contract pertinent to plaintiff\u2019s alleged breach is as follows:\n\u201c3(a) Redesign the remaining unsold portions which are reasonably feasible for redesign of the Whalehead property to comply with the Currituck Plan. . . . (Emphasis ours.)\n3(b) Work out a participation agreement with Currituck County so that the Whalehead development will participate in the central water and sewer project being sponsored by Currituck County.\n3(c) . . . Coastland agrees not to oppose any design of K & R [plaintiff] on any of the Whalehead property provided the standards set out in paragraph 3(a) above are met.\u201d\nAccompanying its motion for summary judgment of 19 May 1978, plaintiff presented the affidavits of County Commissioners Bowden, Dozier and Ferrell which averred that the \u201cCounty Commissioners of Currituck County would not approve a development plat or plan which would place upon the County of Currituck the burden of operation and maintenance of a central water and sewer system constructed and paid for by the developer; nor would the County of Currituck supervise the construction thereof or set forth the specifications therefore (sic).\u201d Plaintiff also tendered the affidavit of S. G. Folkes, a licensed engineer, who averred that no portion of the Whalehead property was reasonably feasible for redesign into high density clusters without central water and sewer, and that the redesign under existing regulations was as close as reasonably possible to the \u201cCurrituck Plan.\u201d\nOn 19 May 1978 defendants also filed their motion for summary judgment which was granted by Judge Snepp. Accompanying their motion, defendants filed the affidavits of James E. Johnson, President of Coastland Corporation, Robert E. Upton, Jr., a real estate broker, John T. Sherrill, Secretary of Coastland Corporation, and Benjamin B. Taylor, President of Envirotek, Inc. (the company which designed the \u201cCurrituck Plan\u201d). All of the above noted affidavits averred the plaintiff\u2019s redesign of the undeveloped Whalehead property did not provide underground utilities, nor provide open space as required by the \u201cCurrituck Plan.\u201d The affidavits concluded that the redesign was in violation of the \u201cCurrituck Plan,\u201d and of the parties\u2019 agreements. Defendants also presented the affidavits of three Currituck County Commissioners, the Currituck County Manager, and the Currituck County Community Development Officer, which averred that the \u201cCurrituck Plan\u201d was no longer required as the development scheme on the outer banks, but that developments in compliance with the specifications of the \u201cCurrituck Plan\u201d were still allowed in the County.\nAs a result of the new \u201cLand Use Plan\u201d adopted by the Currituck County Commissioners, and the County\u2019s alleged unwillingness to participate in centralized public utilities, plaintiff argues that its literal compliance with the \u201cCurrituck Plan\u201d is impossible. Plaintiff contends that it has done everything reasonably feasible to redesign its Whalehead property to comply with the \u201cCurrituck Plan,\u201d and is thereby in compliance with paragraph 3(a) of the parties\u2019 agreement. As noted above, Judge Snepp disagreed, and concluded that plaintiff was in breach of its agreement, and therefore granted summary judgment on plaintiff\u2019s third cause of action in favor of the defendants.\nG.S. 1A-1 Rule 56(c) provides that summary judgment is appropriate if \u201c. . . there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d Accord Kessing v. Mortgage Co., 278 N.C. 523, 534, 180 S.E. 2d 823, 830 (1971). In the case at bar, both plaintiff and defendants moved the court for summary judgment. By their motions both parties are contending that there are no material issues of fact left for the trier of fact\u2019s determination. Therefore the question raised by plaintiff on this appeal is not the propriety of summary judgment, but the correctness of the trial court\u2019s granting summary judgment in favor of the defendants. For the reasons that follow, we hold that Judge Snepp\u2019s order granting the defendants\u2019 motion for summary judgment was proper.\nPlaintiff by both its pleadings and affidavits concedes that the redesign of the Whalehead property is not in absolute compliance with the \u201cCurrituck Plan.\u201d It contends however that its redesign constitutes the most reasonable compliance with the \u201cCurrituck Plan\u201d when measured by plaintiff\u2019s ability to perform under the current \u201cLand Use Plan.\u201d We disagree. The defendants presented affidavits of county officials which averred that developments in compliance with the \u201cCurrituck Plan\u201d were still allowed under the County\u2019s current \u201cLand Use Plan\u201d; however, pursuant to its new policy the County no longer required developments to comply with said \u201cCurrituck Plan.\u201d Plaintiff submitted no affidavits or testimony containing evidence that the new \u201cLand Use Plan\u201d prohibited construction in compliance with the \u201cCurrituck Plan.\u201d Further plaintiff\u2019s affidavits aver that its proposed new development of the Whalehead property does not contain the high density features found in developments constructed pursuant to the \u201cCurrituck Plan.\u201d Since plaintiff\u2019s evidence does not dispute that the adoption by Currituck County of a new land use policy, while encouraging low density housing, does not prohibit high density construction as called for under the \u201cCurrituck Plan,\u201d and the parties\u2019 agreement calls for development pursuant to the \u201cCurrituck Plan,\u201d we affirm Judge Snepp\u2019s judgment that the County\u2019s adoption of the new non-exclusive \u201cLand Use Plan\u201d does not excuse plaintiff from compliance with its contractual commitments.\nPlaintiff also contends that pursuant to the County\u2019s new \u201cLand Use Plan,\u201d no County participation would be available for construction of .central water and sewer as contemplated by paragraph 3(b) of the parties\u2019 agreement. Without such participation, plaintiff argues compliance with paragraph 3(b) of the contract becomes impossible, and plaintiff is therefore excused from literal compliance with the agreement. Again we disagree. Plaintiff in its affidavits presents no evidence that Currituck County actually refused to agree to participate in constructing a central water and sewer system for plaintiff\u2019s Whalehead property. In support of its argument that compliance with paragraph 3(b) of the contract is impossible, plaintiff presents affidavits of three individual County Commissioners which aver that the County \u201cwould not approve a development plat or plan which would place upon the County of Currituck the burden of operation and maintenance of a central water and sewer system . . . [built either by the developer or the County].\u201d (Emphasis ours.) Such affidavits do not represent the consensus of the present County Commissioners nor do they represent the opinions of any future County Commissioners. Also such affidavits refer to hypothetically proposed participation plans, not a definite participation proposal advanced by the plaintiff. Plaintiff also relies on two resolutions of the Currituck County Board of Commissioners which state inter alia:\n\u201cIt is no longer the county\u2019s policy to require \u2018cluster\u2019 or planned unit development (PUD) design schemes . . . nor are water and sewer utilities required for new developments.\nCurrituck County [will] not involve itself in affording water and sewage utilities on the Outer Banks which will result in extensive costs to the taxpayers of the County with very limited benefits thereof. . . .\u201d (Emphasis ours.)\nWe are of the opinion that these resolutions in themselves do not present the County\u2019s policy as a blanket denial of all participation plans for central water and sewer systems. They simply resolve that such plans are no longer required on outer banks developments, and that the County will not participate in such plans where extensive taxpayer cost will result with very limited taxpayer benefits.\nThe resolutions and affidavits offered by the plaintiff tend to show that County approval of the central sewer and water participation plans will not be automatic, but they do not show that plaintiff ever presented a definite proposal to the Commissioners, or that approval of such a plan would never be forthcoming. Therefore, we hold that plaintiff\u2019s affidavits and exhibits do not establish impossibility of performance of paragraph 3(b) of the contract. Simply because the County\u2019s actions subsequent to the parties\u2019 agreements may make plaintiff\u2019s ability to obtain County paticipation more difficult, does not excuse plaintiff\u2019s performance. Goldston Brothers v. Newkirk, 233 N.C. 428, 431, 64 S.E. 2d 424, 427 (1951). See also 17 Am. Jur. 2d Contracts \u00a7 402 (1964).\nThe evidence before the trial court established that plaintiff, without adequate excuse, failed to comply with the terms of the parties\u2019 contractual agreement, therefore summary judgment was properly entered for defendants.\nWe now turn to defendants\u2019 appeal from the judgment denying its prayer for specific performance. Defendants\u2019 motion for summary judgment on its counterclaim was granted, however Judge Snepp ruled that:\n\u201cThe motion by the Defendants that the plaintiff be ordered to specifically perform the agreements concerning the redesign of its Whalehead Development ... is denied. It is ORDERED that the issue of damages be tried at a later session of the court, pursuant to order of The Honorable George M. Fountain entered May 2, 1978.\u201d\nWe note that pursuant to Judge Fountain\u2019s pre-trial order, the issue of damages was separated from the remaining issues of liability, to be adjudicated at a subsequent trial. G.S. 1A-1 Rule 42(b) provides for such separation by the trial court in \u201cfurtherance of convenience or to avoid prejudice. . . .\u201d Judge Fountain\u2019s pre-trial separation of the damages issue was within his discretion, and entirely proper. Aetna Insurance Co. v. Carroll\u2019s Transfer, Inc., 14 N.C. App. 481, 484, 188 S.E. 2d 612, 614 (1972). However since the trial court was unable to consider the adequacy of the damages remedy following this order, we hold that its preemptory denial of the equitable relief of specific performance was error.\nIn Trust Co. v. Webb, 206 N.C. 247, 250, 173 S.E. 598, 600 (1934), this Court stated that \u201c[\u00bfjurisdiction to enforce specific performance rests ... on the ground that damages at law will not afford a complete remedy. (Citations omitted.)\u201d See 71 Am. Jur. 2d Specific Performance \u00a7 8 (1973). Corbin in his treatise on contracts also notes that it is \u201cthe stated rule of law that specific performance of a contract will not be decreed unless the remedy in money damages is an inadequate one.\u201d Corbin on Contracts, Vol. 5A \u00a7 1139 (1964). In the case sub judice the trial court heard no evidence as to the adequacy of the defendant\u2019s remedy through damages. In Hutchins v. Honeycutt, 286 N.C. 314, 319, 210 S.E. 2d 254, 257 (1974), Justice Huskins speaking for the Court noted, \u201cspecific performance does not depend upon an unbridled discretion that varies with the length of the chancellor\u2019s foot, but is granted or withheld according to the equities that flow from a just consideration of all the facts and circumstances of the particular case. (Emphasis ours.) Byrd v. Freeman, 252 N.C. 724, 114 S.E. 2d 715 (1960), 71 Am. Jur. 2d Specific Performance \u00a7 6 (1973).\u201d Here with the issue of damages not even before the court, Judge Snepp could not consider all the facts and circumstances of the case and determine if equitable relief was proper.\nThe denial of defendants\u2019 prayer for specific performance was improper because the trial court was without the necessary facts to determine whether damages would have provided defendants an adequate remedy at law.\nAt a subsequent hearing, for defendants to be entitled to specific performance, they must show their right in equity and good conscience to the relief demanded. The burden rests with the defendants as the parties seeking specific performance to first allege and prove that they have performed their obligations under the contract. Darden v. Houtz, 353 F. 2d 369, 372 (4th Cir. 1965). Wilson v. Lineberger, 92 N.C. 547 (1885). Also defendants will be entitled to demand that plaintiff specifically perform its portion of the contract only if they can show the inadequacy of their remedy at law. Trust Co. v. Webb, supra. Corbin on Contracts, Vol. 5A \u00a7 1142 (1965), notes factors to be considered in determining the adequacy of the legal remedy of money damages. Some of them are: (1) the difficulty and uncertainty in determining the amount of damages to be awarded for the breach, (2) difficulty and uncertainty of collecting such damages after they are awarded, and (3) the insufficiency of money damages to obtain duplicate or substantial equivalence of the promised performance. Because there has been no hearing on the damage issue, we are unable to determine from the present state of the record what relief, if any, the defendants are entitled to receive. Therefore in accordance with the order following herewith, this case must be remanded for determination of the propriety of defendants\u2019 claim for specific performance.\nThe order of the Court of Appeals dismissing the appeal is reversed; the order of Judge Snepp granting summary judgment for the defendants on plaintiff\u2019s third cause of action is affirmed; the order of Judge Snepp denying defendants\u2019 prayer for specific performance is vacated; and this cause is remanded to the Court of Appeals for further remand to the Superior Court, Currituck County, for trial upon the question of whether defendants are entitled to a decree of specific performance and the extent thereof, or are entitled to monetary damages and the amount thereof.\nThe order of the Court of Appeals is reversed and this cause is remanded.\nReversed and remanded.", "type": "majority", "author": "BROCK, Justice." } ], "attorneys": [ "J. Kenyon Wilson, Jr. and M. H. Hood Ellis, and White, Hall, Mullen, Brumsey and Small, by Gerald F. White, for Whalehead Properties, plaintiff.", "LeRoy, Wells, Shaw, Hornthal, Riley & Shearin, by Dewey W. Wells and Mark M. Maland, and Twiford, Trimpi & Thompson, by Russell E. Twiford and Jack E. Derrick, for Coastland Corporation, et al., defendants." ], "corrections": "", "head_matter": "WHALEHEAD PROPERTIES, a partnership v. COASTLAND CORPORATION, OCEAN SANDS PROPERTY OWNERS ASSOCIATION, INC. and OCEAN SANDS, INC.\nNo. 124\n(Filed 1 February 1980)\n1. Appeal and Error \u00a7 6.2\u2014 right of appeal \u2014 final judgment \u2014 interlocutory order affecting substantial right\nA right of appeal lies from the final judgment of superior court or from an interlocutory order of the superior court which affects some substantial right. G.S. 1-277; G.S. 7A-27(b).\n2. Appeal and Error \u00a7 6.2\u2014 finality of judgment \u2014 appeal from summary judgment order\nWhere plaintiff\u2019s first cause of action was settled by consent, summary judgment granting plaintiff a permanent injunction was entered on plaintiff\u2019s second cause of action, plaintiff\u2019s third cause of action sought a declaratory judgment that its redesigned plans for development of its property complied with an agreement of the parties, and the court found that the development plans did not comply with the agreement and entered summary judgment for defendants, plaintiff received a final judgment as to all its causes of action and could appeal from the court\u2019s order entering summary judgment for defendants on its third cause of action.\n3. Appeal and Error \u00a7 6.2\u2014 breach of contract \u2014summary judgment establishing liability \u2014 rejection of specific performance \u2014 appealability of order\nWhere the trial court granted summary judgment establishing plaintiff\u2019s liability for breach of an agreement to redesign its plan for development of its property to comply with the \u201cCurrituck Plan\u201d for development of outer banks property, but the court rejected defendants\u2019 claim for specific performance of the contract and ordered the issue of damages to be determined at a subsequent trial, the denial of defendants\u2019 claim for specific performance prior to hearing evidence on the question of damages affected a substantial right of defendants and was appealable, since the court\u2019s preemptory denial of specific performance will preclude defendants from seeking such relief at the trial on the issue of damages, and by the time final judgment is rendered on defendants\u2019 claim plaintiff may have been able to develop its property in a manner not in compliance with its agreement.\n4. Contracts \u00a7 20.1\u2014 breach of contract \u2014 no impossibility of performance\nPlaintiff was not excused on the ground of impossibility of performance from compliance with its contract with defendant to redesign its plans for development of its property to comply with the \u201cCurrituck Plan\u201d for development of outer banks property, which required a central water and sewer system, and the trial court properly entered summary judgment for defendants establishing plaintiff\u2019s liability for breach of the agreement, where (1) the evidence on motion for summary judgment tended to show that, although Cur-rituck County had adopted a new \u201cLand Use Plan\u201d for development of the outer banks which replaced the \u201cCurrituck Plan,\u201d developments in compliance with the \u201cCurrituck Plan\u201d were still permitted in the county, and (2) plaintiff\u2019s evidence tended to show that county approval of participation in a central water and sewer system would not be automatic but failed to show that plaintiff ever presented a definite proposal to the county commissioners or that approval of such a plan would never be forthcoming.\n5. Specific Performance \u00a7 1\u2014 breach of contract \u2014summary judgment \u2014denial of specific performance before evidence of damages\nThe trial court erred in preemptorily denying the equitable relief of specific performance when it granted summary judgment establishing plaintiff\u2019s liability for breach of contract and ordered that the issue of damages be decided at a subsequent trial, since the court was without the necessary facts to determine whether damages would provide defendants an adequate remedy at law.\nON plaintiff\u2019s and defendants\u2019 petition for discretionary-review of an opinion of the Court of Appeals reported at 42 N.C. App. 198, 256 S.E. 2d 284 (1979) dismissing plaintiff\u2019s and defendants\u2019 appeals from judgments of Snepp, J., entered at the May 29, 1978 Session of Superior Court, CURRITUCK County.\nPetition for discretionary review allowed 25 September 1979.\nPlaintiff and defendants are landowners and competing developers of adjoining tracts of land on the outer banks of Curri-tuck County, N.C. The plaintiff\u2019s Whalehead property lies immediately to the north of the defendants\u2019 Ocean Sands subdivision. Plaintiff\u2019s property is bordered on the north by federal lands, on the east by the Atlantic Ocean and on the west by Currituck Sound. Access to plaintiff\u2019s property from the north has been blocked by the federal government. To obtain a southern entrance to their development, plaintiff obtained use of a right-of-way known as the \u201cSlick Easement\u201d which extends southwardly along the Currituck outer banks from the southern boundary of defendants\u2019 Ocean Sands subdivision to the northern end of State Road 1200. The \u201cSlick Easement\u201d is an unpaved roadway which has not been dedicated to the public.\nThis suit arises out of contractual agreements between plaintiff and defendants in which plaintiff acquired use of the \u201cSlick Easement.\u201d Prior to the execution of the agreements in question, the defendants had obtained access over the \u201cSlick Easement\u201d by entering its various agreements with Earl F. Slick and others. These agreements granted defendant Coastland a non-exclusive right to use the \u201cSlick Easement\u201d with the proviso that others would be granted the right to use the roadway only with the joint consent of Coastland and Slick. Subsequently, defendant Coast-land granted use of the easement to the Ocean Sands Property Owners Association, and plaintiff also sought access across the \u201cSlick Easement\u201d in order that its employees, agents and eventually property owners could reach its Whalehead property.\nTo obtain this needed access plaintiff entered into various contractual agreements with defendants securing to the plaintiff the right to use the \u201cSlick Easement\u201d to reach its development. On 10 April 1974, in partial consideration for such access, plaintiff agreed to the following:\n\u201c3(a) Redesign the remaining unsold portions which are reasonably feasible for redesign of the Whalehead property to comply with the Currituck Plan . . . -\n3(b) Work out a participation agreement with Currituck County so that the Whalehead development will participate in the central water and sewer project being sponsored by Currituck County.\n3(c) . . . Coastland agrees not to oppose any design of K & R [plaintiff] on any of the Whalehead property provided the standards set out in paragraph 3(a) above are met.\u201d\nPlaintiff also agreed to other conditions, including payment of a percentage of the cost to construct and maintain the roadway on the \u201cSlick Easement.\u201d\nIn 1974 and 1975 when plaintiff and defendants entered into agreements concerning the \u201cSlick Easement,\u201d the \u201cCurrituck Plan\u201d was the only development scheme approved for construction on the Currituck Banks. However, in 1977 Currituck County adopted a plan known as the \u201cLand Use Plan\u201d which superseded the \u201cCurrituck Plan\u201d as the county\u2019s development policy for its outer banks. This \u201cLand Use Plan\u201d contrary to the \u201cCurrituck Plan\u201d permitted construction of low density housing without requiring that water and sewer service and other public utilities be provided. After adoption of the \u201cLand Use Plan,\u201d the \u201cCurrituck Plan\u201d was no longer required as a development scheme; however, use of development schemes approved by the \u201cCurrituck Plan\u201d was still allowed.\nIn compliance with the new \u201cLand Use Plan,\u201d plaintiff submitted plats of the undeveloped real estate which remained on the Whalehead property. The plats did not comply with the \u201cCur-rituck Plan.\u201d Subsequent to the recording of these new plats, defendants terminated or threatened to terminate plaintiff\u2019s right to use the \u201cSlick Easement\u201d for its alleged failure to comply with the contractual agreements which mandated compliance with the \u201cCurrituck Plan.\u201d\nThereupon plaintiff instituted this action against defendants alleging three causes of action. The first cause of action was settled between the parties by consent. In its second cause of action, plaintiff alleged compliance with the contractual agreements and sought a temporary restraining order, a preliminary injunction, and a permanent injunction restraining the defendants from terminating or threatening to terminate access by way of the \u201cSlick Easement.\u201d Plaintiff moved for summary judgment on this cause of action, and Judge Snepp, in a judgment dated 15 June 1978, granted the plaintiff\u2019s motion for summary judgment. The judgment entitled plaintiff to a permanent injunction so long as a pro rata share of the road\u2019s upkeep was paid by them. Neither party excepted to this order. In its third cause of action, plaintiff prayed for declaratory judgment which would hold that its design of the Whalehead property complied with plaintiff\u2019s and defendants\u2019 contractual agreements. However, defendants\u2019 motion for summary judgment on plaintiff\u2019s third cause of action was granted by Judge Snepp, who held as a matter of law that the new design failed to comply with the \u201cCurrituck Plan\u201d and therefore, the parties\u2019 agreement had been breached.\nDefendants filed a counterclaim alleging that the proposed redesign was in violation of the \u201cCurrituck Plan\u201d and their agreement. Defendants prayed for specific performance of their contract insofar as it related to the \u201cCurrituck Plan\u201d or, in the alternative $3,000,000 \u201cor some other large sum as actual damages.\u201d Judge Snepp granted the defendants\u2019 motion for summary judgment as to its counterclaim but denied specific performance. In accord with the pre-trial order by Judge Fountain, the issue of damages, if any, was not before the court and was to be decided at a separate and subsequent trial.\nFrom the order granting summary judgment in favor of the defendants on plaintiff\u2019s third cause of action, plaintiff appealed. Defendants appealed from Judge Snepp\u2019s denial of their requested relief of specific performance. The Court of Appeals dismissed both appeals as interlocutory in character and therefore non-appealable. Both parties petitioned to this Court for further review.\nJ. Kenyon Wilson, Jr. and M. H. Hood Ellis, and White, Hall, Mullen, Brumsey and Small, by Gerald F. White, for Whalehead Properties, plaintiff.\nLeRoy, Wells, Shaw, Hornthal, Riley & Shearin, by Dewey W. Wells and Mark M. Maland, and Twiford, Trimpi & Thompson, by Russell E. Twiford and Jack E. Derrick, for Coastland Corporation, et al., defendants.\n. The Currituck Plan adopted December 3, 1973 was a written and graphic policy statement about the future development of the outer banks. The plan required present and future developments to provide central water and sewer service. It further recommended cluster type or planned unit developments (PUDs) for new subdivisions." }, "file_name": "0270-01", "first_page_order": 294, "last_page_order": 308 }