Clarence B. Ridout v. KEP MORRISVILLE REALTY, LLC, A New York limited liability company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1384
CLARENCE B. RIDOUT,
Plaintiff – Appellee,
v.
KEP MORRISVILLE REALTY, LLC, A New York limited liability
company,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:08-cv-00453-F)
Submitted: January 5, 2012 Decided: January 12, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
George F. Sanderson, III, ELLIS & WINTERS, LLP, Raleigh, North
Carolina; C. Scott Meyers, ELLIS & WINTERS, LLP, Greensboro,
North Carolina, for Appellant. William Woodward Webb, THE
EDMISTEN & WEBB LAW FIRM, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Clarence B. Ridout filed a Complaint in the district
court alleging that KEP Morrisville Realty, LLC, (“KEP”)
breached a real estate contract (“the Contract”) between the two
parties. Ridout claimed that KEP had refused to pay ad valorem
taxes on certain property, as provided under the Contract. In
response, KEP asserted that it had no obligation to pay the
taxes because Ridout had breached an implied Contract provision
requiring him to make a reasonable effort to sell or lease the
property in question. Ridout moved for summary judgment, and
the district court granted Ridout’s motion. KEP timely appeals.
As a threshold matter, KEP contends that the district
court erred in resolving the summary judgment motion without
considering two affidavits submitted by KEP. This court reviews
a district court’s ruling on the admissibility of an affidavit
for abuse of discretion. Nader v. Blair, 549 F.3d 953, 963 (4th
Cir. 2008).
Under North Carolina law,1 the parol evidence rule
prohibits consideration of evidence concerning discussions that
transpired before or during execution of a contract that would
vary the terms of the contract. Drake v. Hance, 673 S.E.2d 411,
1 The parties agree that under the Contract, North Carolina
law applies.

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413 (N.C. Ct. App. 2009). However, parol evidence may be
admissible to help construe an ambiguous written document, or
where there is evidence of mutual mistake or fraud. Id. Here,
the district court correctly determined that KEP did not allege
fraud, mistake, or ambiguity, and thus did not abuse its
discretion in refusing to consider the affidavits in question.
Next, KEP contends that the district court erred in
granting summary judgment to Ridout. We review a district
court’s grant of summary judgment de novo. Brandt v. Gooding,
636 F.3d 124, 132 (4th Cir. 2011). A court “shall grant summary
judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). For a non-moving party
to present a genuine issue of material fact, “[c]onclusory or
speculative allegations do not suffice, nor does a mere
scintilla of evidence in support of [the non-moving party’s]
case.” Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649
(4th Cir. 2002) (internal quotation marks omitted).
KEP asserts that the district court erred in granting
summary judgment to Ridout based on its conclusion that the
Contract did not explicitly or implicitly require Ridout to make
reasonable efforts to sell or lease the property designated as
the New Ridout Property. KEP asserts that the Contract, taken

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as a whole, imposes that obligation on Ridout and that otherwise
the obvious intent of the parties is thwarted.
In North Carolina, to determine the intent of the
parties, a court considers “the language used, the situation of
the parties, and objects to be accomplished.” Carter v. Barker,
617 S.E.2d 113, 116-17 (N.C. App. 2005). A contract not only
encompasses “its express provisions but also all such implied
provisions as are necessary to effect the intention of the
parties unless express terms prevent such inclusion.” Lane v.
Scarborough, 200 S.E.2d 622, 624 (N.C. 1973). “If it can be
plainly seen from all the provisions of the instrument taken
together that the obligation in question was within the
contemplation of the parties when making their contract or is
necessary to carry their intention into effect, the law will
imply the obligation and enforce it.” Id. at 625. However,
when the language of a contract “is plain and unambiguous, the
construction of the agreement is a matter of law; and the court
may not ignore or delete any of its provisions, nor insert words
into it, but must construe the contract as written.” Hodgin v.
Brighton, 674 S.E.2d 444, 446 (N.C. Ct. App. 2009).
Our review of the record convinces us that the
district court correctly interpreted the plain language and
purpose of the Contract, and held that the parties did not
intend to imply into the Contract a term obligating Ridout to

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make reasonable efforts to sell or lease the New Ridout
Property. Therefore, the court did not err in granting summary
judgment to enforce KEP’s unambiguous obligation to pay the ad
valorem taxes.2
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
2 KEP’s claim that Ridout did not act in good faith in
exercising his discretion not to lease or sell the New Ridout
Property also fails. As discussed above, Ridout had no
obligation under the Contract to make efforts to sell or lease
the New Ridout Property, and therefore his decision to retain
the property cannot be found unreasonable or lacking in good
faith.

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