Jerry S. FURR and wife, Patricia D. Furr
v.
Betty K. CARMICHAEL and Annie Carmichael.
No. 8521DC991.
Court of Appeals of North Carolina.
September 2, 1986.*483 Peebles & Schramm by John J. Schramm, Jr., Winston-Salem, for plaintiffs-appellants.
Hutchins, Tyndall, Doughton & Moore by Laurie H. Woltz, Winston-Salem, for defendants-appellees.
PARKER, Judge.
I. PLAINTIFFS' APPEAL
Plaintiffs first argue that the trial court erred in entering the 17 September 1984 Order granting defendants' partial summary judgment on the issue of fraud and dismissing plaintiffs' claim for fraud. Plaintiffs contend, and we agree, that the issues before the court on defendants' motion for summary judgment were the same issues that were before the court on plaintiffs' motion heard by Judge Alexander and that his finding that there were triable issues of material fact precluded entry of partial summary judgment for defendants on their later motion.
The general rule was stated by this Court in American Travel Corp. v. Central Carolina Bank, 57 N.C.App. 437, 440, 291 S.E.2d 892, 894, cert. denied, 306 N.C. 555, 294 S.E.2d 369 (1983) as follows:
Under the authority of Carr v. Carbon Corp., 49 N.C.App. 631, 272 S.E.2d 374 (1980), disc. rev. denied, 302 N.C. 217 [276 S.E.2d 914] (1981), a motion for summary judgment denied by one superior court judge may not be allowed by another superior court judge on identical legal issues. See also Biddix v. Construction Corp., 32 N.C.App. 120, 230 S.E.2d 796 (1977). This rule is based on the premise that no appeal lies from one superior court judge to another. Moreover, as pointed out in Carr, to allow an unending series of motions for summary judgment "would defeat the very purpose of summary judgment procedure, to determine in an expeditious manner whether a genuine issue of material fact exists and whether the movant is entitled to judgment on the issue presented as a matter of law." 49 N.C.App. at 634, 272 S.E.2d at 377.
Generally, motions for summary judgment should not be heard until all parties are prepared to present their contentions on all issues. Id. at 441, 291 S.E.2d at 895. In the instant case, defendants did not move for summary judgment or ask for a continuance when plaintiffs' motion was heard. On the record before this Court, no new affidavit or evidence based on discovery was filed or presented by either party at the hearing on defendants' motion for summary judgment that was not before the trial court at the hearing on plaintiffs' motion for summary judgment. Therefore, when Judge Harrill considered defendants' motion for summary judgment, he was in effect reviewing what Judge Alexander had considered earlier, to wit: whether a triable issue of material fact existed as to plaintiffs' claim for specific performance arising out of breach of contract and fraudulent conveyance. Judge Alexander ruled that there were triable issues of fact as to these claims; he did not rule that there were no issues of fact, but that plaintiffs were barred as a matter of law. By entering partial summary judgment on the issue of fraud, Judge Harrill overruled Judge *484 Alexander's earlier order finding triable questions of fact on that issue. Judge Harrill erred in granting partial summary judgment for defendants on the issue of fraud, and the 17 September 1984 order is vacated.
Because of our disposition of defendant Carmichael's appeal, we do not address plaintiffs' other assignment of error.
II. DEFENDANT BETTY K. CARMICHAEL'S APPEAL
In her first assignment of error, defendant contends the trial court erred in directing a verdict in favor of plaintiffs. We agree.
The following facts are undisputed. On 25 August 1983, the plaintiffs and this defendant entered into a real estate sales contract. The written contract does not recite a closing date and does not indicate in any way that time is of the essence with regard to closing. This defendant asked to be allowed to collect the September rent payment from the tenant living in the house and did collect this payment. This defendant wrote a letter to Mr. Furr on 13 October 1983 indicating that she was no longer willing to go through with the sale and refunding his earnest money deposit. This defendant sold and conveyed the property which was the subject of the real estate contract to the defendant Annie Carmichael. Defendant contends it was improper to remove the case from the jury because there was a triable issue as to reasonable time of performance. Defendant's position is that the jury should have decided whether the 49-day interval between 25 August 1983 and 13 October 1983 was a reasonable time to perform.
Where an option or contract to purchase does not specify the time within which the right to buy may be exercised, the right must be exercised within a reasonable time. Lewis v. Allred, 249 N.C. 486, 106 S.E.2d 689 (1959). Though the determination of reasonable time is generally a mixed question of law and fact and thus for the jury, it becomes a question of law when the facts are simple and admitted and only one inference can be drawn. Yancey v. Watkins, 17 N.C.App. 515, 195 S.E.2d 89, cert. denied, 283 N.C. 394, 196 S.E.2d 277 (1973). Time is ordinarily not of the essence of a contract of sale and purchase. Douglass v. Brooks, 242 N.C. 178, 87 S.E.2d 258 (1955). By directing a verdict in plaintiffs' favor, the trial court ruled that forty-nine (49) days was not an unreasonable time, as a matter of law, to close on the property.
In Cadillac-Pontiac Co. v. Norburn, 230 N.C. 23, 51 S.E.2d 916 (1949), the parties entered into a contract to buy and sell land. The contract provided: "It is agreed that settlement under this contract shall be completed on or before November, 20, A.D. 1945." The court held that time was not of the essence of this agreement because "[t]he agreement itself is not worded to avoid the contract altogether or expressly vitiate it, if settlement is not made at that time." Id. at 29, 51 S.E.2d at 920. Similarly, in Walker v. Weaver, 23 N.C.App. 654, 209 S.E.2d 537 (1974), this Court held that time was not of the essence in a contract to purchase real estate where the contract provided that it was "to be definitely closed within a period of 30days ..." since the statement did not indicate any intention of the contracting parties that all rights and obligations were to terminate if, through no fault of either vendors or vendees, the sale could not be closed exactly within the time prescribed. See also Taylor v. Bailey, 34 N.C.App. 290, 237 S.E.2d 918 (1977), where this Court held that time was not of the essence in a land contract, and the failure to close on or before 15 October 1975 as specified in the contract did not void the defendant-seller's obligations under the contract. These later cases indicate that a closing within a reasonable period of time was sufficient even in the face of specific closing dates where nothing else appeared to indicate that time was of the essence of the contract.
In passing upon a motion for a directed verdict, the court must consider the evidence in the light most favorable to the nonmovant, Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973), and all discrepancies *485 must be resolved in favor of the party against whom the motion was made. Odell v. Lipscomb, 12 N.C.App. 318, 183 S.E.2d 299 (1971). When the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury. Koonce v. May, 59 N.C.App. 633, 298 S.E.2d 69 (1982).
Under the facts of this case, and in light of defendant Betty K. Carmichael's testimony that she attempted to close on the property at least ten times during the month of September, we are unable to say that forty-nine (49) days was a reasonable time as a matter of law within which to close on this property. Clearly, more than one inference can be drawn from the facts presented herein. The issue of reasonable time is for the jury. Accordingly, Judge Gatto erred in directing a verdict in favor of plaintiffs.
To summarize our holding:
The order granting partial summary judgment entered on 17 September 1984 is vacated.
The directed verdict granted at the close of all of the evidence in favor of plaintiff is reversed.
This cause is hereby remanded to the District Court of Forsyth County for a trial by jury on all issues raised by the pleadings except defendants' counterclaim for slander of title from which defendants did not appeal.
Reversed and remanded.
HEDRICK, C.J., and WEBB, J., concur in the result.