Area Storage, Inc. v. Old Oak Estates Community Association (Lawyers Weekly No. 12-16-0537, 7 pp.) (Robert C. Hunter, J.) Appealed from Currituck County Superior Court. (Walter H. Godwin Jr., J.) N.C. App. Unpub. Full-text opinion.
Holding: Pursuant to the parties’ contract, if the plaintiff-storage business got its land re-zoned to commercial and obtained a building permit, then plaintiff would deed a 50-foot buffer to defendant — its neighbor – install a buffer of vegetation, and pay defendant $20,000. Although plaintiff placed the deed and $30,000 in escrow and had the property re-zoned, it decided not to seek a building permit because of an economic downturn. Plaintiff’s failure to seek a building permit was not a breach of its duty of good faith.
We affirm the trial court’s conclusion that plaintiff acted in good faith.
The parties’ contract contained an implied promise that plaintiff would act in good faith and make reasonable efforts to obtain the re-zoning of the land on which it intended to expand and to obtain a building permit. There is no indication that plaintiff did not satisfy these requirements in deciding not to obtain a permit. The evidence supports the trial court’s conclusion that plaintiff decided not to pursue the building permit due to an “economic downturn” and a reduction in its business’s occupancy rates. The trial court did not err in concluding as a matter of law that plaintiff acted in good faith under the terms of the contract.