Peggy Lynn DeTORRE and Husband, James B.W. DeTorre, and Raymond W. Allen
v.
SHELL OIL COMPANY and Quality Oil Company.
No. 8610SC828.
Court of Appeals of North Carolina.
March 3, 1987.*271 Newsom, Graham, Hedrick, Bryson & Kennon by Charles F. Carpenter, Durham, for plaintiffs-appellants.
Petree Stockton & Robinson by Leon E. Porter, Jr., and R. Rand Tucker, Winston-Salem, for defendants-appellees.
JOHNSON, Judge.
Plaintiffs' only Assignment of Error challenges the trial court's granting of defendants' motion for judgment on the pleadings pursuant to Rule 12(c). At issue is whether the trial court properly granted defendants' motion as a matter of law. We find no error.
Our scope of review of a Rule 12(c) motion is to determine whether granting the motion was proper or in error. A motion for judgment on the pleadings, or a Rule 12(c) motion, is proper when all the material allegations of fact are admitted on the pleadings and only questions of law remain. Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). The movant must show, even when viewing the facts and permissible inferences in the light most favorable to the nonmoving party, that he is clearly entitled to judgment as a matter of law. Cathy's Boutique v. Winston-Salem Joint Venture, 72 N.C.App. 641, 642-43, 325 S.E.2d 283, 284 (1985). Because judgment on the pleadings is a summary procedure and the judgment is final, the movant is held to a strict standard and must show that no material issue of fact exists. Ragsdale v. Kennedy, supra, 286 N.C. at 137, 209 S.E.2d at 499.
*272 Plaintiffs argue that defendants wilfully breached the lease agreement by "removing and destroying the existing structures and pavement on said leasehold." Defendants admit as much in their answer. Plaintiffs incorporated a copy of the lease agreement into the complaint by reference, thereby making the lease part of the pleadings for purposes of Rule 12(c). The trial court properly looked at the lease to see if the terms were plain and unambiguous when deciding defendants' motion. 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.)
We find the language of the lease to be unambiguous. Under paragraph five (5) of the lease, defendants may construct on the premises an automobile service station and any additional buildings they desire, and may make any alterations to the premises and buildings they desire. Furthermore, defendants may use the premises for any lawful purpose. Plaintiffs have not alleged that defendants' use of the premises is for an illegal purpose, or that defendants have failed to pay rent. Defendants' removal of the buildings and pavement was clearly within their right under the lease to "alter" the premises and buildings thereon. We hold that, taken in the light most favorable to plaintiffs, the pleadings do not raise a genuine issue of fact as to whether defendants' removing and destroying buildings and pavement on the lease premises constitutes a breach of that lease agreement.
Plaintiff further alleges that the buildings originally constructed by defendants after taking possession became fixtures, and that plaintiffs as lessors have acquired an interest in such fixtures; defendant, therefore, cannot remove these fixtures without breaching the lease agreement, and whether defendants' actions constitute a breach is a genuine issue of material fact sufficient to survive a Rule 12(c) dismissal. We disagree.
This Court said in Ilderton Oil Co. v. Riggs, 13 N.C.App. 547, 551, 186 S.E.2d 691, 694 (1972) that:
The general rule is that any erection, even by the tenant, for the better enjoyment of the land becomes part of the land; but if it be purely for the exercise of a trade ... it belongs to the tenant, and may be severed during the term.
(Quoting Pemberton v. King, 13 N.C. 376 (1828-30)). Following Ilderton, the gas station and other buildings constructed by defendants in the case sub judice, being only for the exercise of trade, belong to the defendants and may be severed during the lease term. Furthermore, the lease did not require that any improvements be constructed on the vacant premises. This is simply a ground lease. If the plaintiffs had leased to defendants the premises with buildings thereon, defendants could not then tear down those buildings without injuring plaintiffs' interest in them. But that is not the case here.
Plaintiffs further argue that defendants' actions constitute waste of plaintiffs' reversionary interest, and that the pleadings raise a genuine issue of material fact as to waste sufficient to survive dismissal under Rule 12(c). Defendants' answer denies all allegations of waste, and further answers and defends that the new buildings defendants constructed have increased the fair market value of the premises.
This Court recently said that, at common law, waste "was any permanent injury with respect to lands, houses, gardens, trees, or other corporeal hereditaments by the owner of an estate less than a fee." Homeland, Inc. v. Backer, 78 N.C.App. 477, 481, 337 S.E.2d 114, 117 (1985). We noted further that in "the lessor-lesse situation, waste has been defined as an implied obligation... to treat the premises in such a manner that no injury is done to the property." Id.
Plaintiffs allege that defendants' acts constitute waste "resulting in permanent injury or destruction to plaintiffs' reversionary estate therein in that said acts consisted of the removal and destruction of *273 existing buildings and pavement." We disagree. The buildings destroyed were not existing at the beginning of the lease term. Defendants built the buildings after taking possession of the vacant lot, and later removed their own buildings which they had a right to do under the lease. Plaintiffs' interest in the value of the premises as originally rented was not shown to be permanently injured by returning the lot to its original condition. Furthermore, we found in Homeland, Inc. supra, that plaintiff failed to make a prima facie case for waste when there was plenary evidence that defendants extensively improved the property. 78 N.C.App. at 482, 337 S.E.2d at 117. Here defendants have improved rather than permanently injured the premises. We fail to see how plaintiffs' interest in the premises has been permanently injured, and hold that the trial court correctly found as a matter of law that there was no genuine issue of material fact supporting plaintiffs' claims for breach of contract and waste and properly granted defendants' motion to dismiss on the pleadings under Rule 12(c).
Affirmed.
BECTON and PHILLIPS, JJ., concur.