Kintz v. Spoor. (Lawyers Weekly No. 10-16-0894, 7 pp.) (Richard Elmore, J.) Appealed from Nash County Superior Court (Alma L. Hinton, J.) N.C. App. Unpub.
Holding: When a settlement agreement specifies that only a failure to meet a payment schedule would allow any resumption of litigation, the defendant’s failure to pay a sheriff for a writ of execution is not sufficient.
Trial court judgment is affirmed.
In 2008 plaintiff entered into a settlement agreement with Amerlink Ltd., of which defendant was the president and CEO. The agreement involved a general release of all claims. Plaintiff filed a voluntary dismissal without prejudice and satisfaction of judgment.
The terms of the agreement set out a series of payments that defendant was to make and specified that litigation would be dismissed. Plaintiff agreed not to refile the lawsuit or bring any claim unless released parties failed to comply with payments.
The parties agree that the first two payments were made on time. But in December 2008, the plaintiff filed a complaint alleging breach of contract, breach of express warranty and breach of implied warranty of merchantability.
Defendant filed a motion to dismiss, arguing that the settlement agreement had resolved all the claims and the complaint failed to state a claim upon which relief could be granted. The motion to dismiss was allowed.
Plaintiff appeals this ruling, arguing that the trial court erred in concluding that the plaintiff could not bring the action solely against defendant; that is, that the trial court believed that once the defendant’s company had been dismissed as a party, the suit could no longer proceed. However, the trial court did not state either in its written ruling or in court that this was the basis for its ruling.
Plaintiff also argues that the court erred in dismissing his complaint because his documents were sufficient to establish a prima facie case for actual and/or anticipatory breach of contract.
Plaintiff says the actual breach resulted from defendant’s failure to pay a fee owed the sheriff’s office for a serving a writ of execution. While part of the settlement agreement does say that each party will pay their own costs for dismissing the appeals, the only part of the agreement that allows plaintiff to reinstate claims is the section outlining a payment schedule.
Plaintiff argues that defendant committed an anticipatory breach of contract. But the plaintiff only points to defendant’s failure to reply to a message and request by plaintiff. At best, plaintiff can claim a lack of response to a demand for clarification. Plaintiff provides no case law suggesting that such a lack of response constitutes the type of refusal to perform required for anticipatory breach.
Trial court’s judgment is affirmed.