# Sutton v. Messer

> Court of Appeals of North Carolina · October 4, 2005 · 173 N.C. App. 521

URL: https://www.frixlaw.com/law-library/cases/9580611

## Case

- **Full name:** JOHN R. SUTTON and JAMES M. EDMONDS, Plaintiffs v. JARVIS WAYNE MESSER, STAR STONE ENTERPRISES, INC., SAMUEL E. GRIFFIN, REESE LASHER, JOE EBLEN, DANNY BULLMAN, CHARLIE BULLMAN, SANDRA DUCKET, LESTER WRIGHT, ENOC PRATHER, CHARLIE HENSLEY, STEVE METCALF, BOB POSEY, JOE PENLAND, SR., GUS COLAGERAKIS, and MIKE MONTAPERTO, Defendants
- **Court:** Court of Appeals of North Carolina
- **Decided:** October 4, 2005
- **Citations:** 173 N.C. App. 521; 620 S.E.2d 19; 2005 N.C. App. LEXIS 2119
- **Precedential status:** Published
- **Opinion:** Dissent by Bryant
- **Judges:** Jackson, Hunter, Bryant
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580611

## Opinion text

BRYANT, Judge
dissenting.
The majority interprets the language in the Agreement “without opposition from either party” to mean that such Agreement “provides for the institution of a receivership at the unilateral request of either party.” This interpretation goes beyond the pleadings and the Agreement which were before the trial court in an effort to determine the intent of the parties. Therefore, I respectfully dissent.
A motion for judgment on the pleadings is properly allowed when all material allegations of fact are admitted in the pleadings and only questions of law remain. Ragsdale v. Kennedy, 286 N.C. 130, 137 , 209 S.E.2d 494, 499 (1974). When language of a contract is plain and unambiguous its construction is a matter of law for the court. Wright v. Auto Sales, Inc., 72 N.C. App. 449, 453 , 325 S.E.2d 493, 496 (1985); See Howard v. Oakwood Homes Corp., 134 N.C. App. 116, 120 , 516 S.E.2d 879, 882 (where the language of a contract is clear, the contract must be interpreted as written), disc. review denied, 350 N.C. 832 , 539 S.E.2d 288 (1999), cert. denied, 528 U.S. 1155 , 145 L. Ed. 2d 1072 (2000).
*530 The challenged phrase in paragraph 4, “without opposition of the other party,” plainly states that absent the consent of both parties to a court-appointed receivership sale, the Sales Committee had two additional years in which to attempt to sell either ruby. Accordingly, plaintiffs filed a receivership action one day prior to the expiration of the two-year additional time period. Per the terms of the Agreement, defendants exercised their right to oppose initiating the receivership sale of either ruby. Under the plain meaning of the Agreement, plaintiffs had no right to compel defendants to sell the rubies within the five-year time period.
The trial court properly reviewed the Agreement to see if the terms were plain and unambiguous. See De Torre v. Shell Oil Co., 84 N.C. App. 501 , 353 S.E.2d 269 (1987) (judgment on the pleadings proper whére agreement unambiguous). The time period under the Agreement as to the sale of either ruby expired effective 30 September 2001, the date on which the trial court granted defendants’ motion for judgment on the pleadings. There exists no ambiguity regarding the terms of the Agreement. The Agreement further detailed the parties’ anticipated process of selling either ruby over a five-year period from the date it was executed. As no genuine issue of material fact exists, I would affirm judgment in favor of defendants.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580611. Public record. Not legal advice.