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Anderson v. Walker

Court of Appeals of North Carolina

July 3, 2018

DAVID ANDERSON, Plaintiff
v.
CHRISTOPHER DAVID WALKER, GEORGE TSIROS and CURTIS T, LLC, a North Carolina limited liability company, Defendants

          Heard in the Court of Appeals 10 January 2018.

          Appeal by defendants from judgment entered 9 January 2017 by Judge Sharon Tracey Barrett in Buncombe County No. 14 CVS 1006 Superior Court.

          Dungan, Kilbourne & Stahl, P.A., by Robert C. Carpenter, for plaintiff-appellee.

          Matney & Associates, P.A., by David E. Matney, III, and Sonya N. Rikhye, for defendant-appellants George Tsiros and Curtis T, LLC.

          No brief filed on behalf of defendant-appellee Christopher David Walker.

          CALABRIA, JUDGE.

         George Tsiros ("Tsiros") and Curtis T, LLC (collectively, "defendants") appeal from the trial court's judgment ordering Christopher David Walker ("Walker") to convey certain commercial real property to David Anderson ("plaintiff"). After careful review, we affirm.

         I. Factual and Procedural Background

         On 7 March 2014, plaintiff filed the instant complaint and lis pendens in Buncombe County Superior Court. Plaintiff alleged that, in December 2010, he entered into an agreement with Walker to lease a piece of real estate at 1022 Haywood Road in Asheville ("the property"), to operate plaintiff's business. In January 2013, plaintiff and Walker executed a new lease that included a notarized right of first refusal in plaintiff's benefit ("the ROFR Agreement"). Subsequently, Curtis T, LLC, through its member and manager Tsiros, entered into an agreement ("the Option Agreement" or "Memorandum of Option") to purchase the property from Walker. In his complaint, plaintiff sought specific performance and a declaratory judgment of the rights of the parties. Specifically, plaintiff sought to exercise his interest in the property pursuant to the ROFR Agreement, and to have defendants' Memorandum of Option declared null and void.

         On 9 May 2014, defendants filed a responsive pleading, which included an answer, multiple motions to dismiss, a motion for judgment on the pleadings, and a crossclaim requiring Walker to tender the property, or alternatively to pay liquidated damages. On 21 May 2014, the Clerk of Superior Court of Buncombe County entered a default against Walker, with regard to plaintiff's complaint, for failure to plead or appear.

         On 31 October 2014, the trial court entered an order denying plaintiff's motion for summary judgment, denying defendants' motion for judgment on the pleadings, and granting in part defendants' motions to dismiss. Specifically, the trial court granted in part and denied in part the motions to dismiss, "in that Plaintiff's claim to have the Memorandum of Option declared null and void is dismissed and no other claims of Plaintiff are dismissed."

         On 27 October 2016, the Clerk of Superior Court of Buncombe County entered a default against Walker, with regard to defendants' crossclaim, for failure to plead or appear. On 9 January 2017, the trial court entered its judgment in this matter. The court noted the defaults entered against Walker with respect to both plaintiff's complaint and defendants' crossclaim. The court found that although plaintiff and Walker had executed a notarized right of first refusal with respect to the property in 2013, the document was never recorded. The court also found that when defendants executed agreements to purchase the property, Walker gave Tsiros a copy of plaintiff's lease, and that the ROFR Agreement specifically referenced in the lease had not yet expired. In addition, in 2014, defendants met with plaintiff, who informed them of his intent to exercise his right of first refusal.

         The court further found that in January of 2014, defendants executed agreements to purchase the property, which were recorded. The court found that it was only after plaintiff became aware of defendants' Option Agreement that he gave formal notice of his intent to exercise the right of first refusal. However, the court found that "it would be unjust and inequitable to enforce the Option Agreement procured by [defendants] so as to deprive Plaintiff of" his right of first refusal, and that defendants, inasmuch as they relied upon equity, failed to comport with the maxim, "he who comes into equity must come with clean hands."

         The trial court therefore determined that defendants' conduct in securing the option contract was "overreaching and oppressive[, ]" that plaintiff's right of first refusal took precedence, and that defendants maintained a claim against Walker for breach of contract. The court ordered Walker to convey the property to plaintiff by a general warranty deed pursuant to the right of first refusal, with the same terms and conditions, and concluded that defendants had no rights in the property. The court further ...


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