              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-845

                                  Filed: 7 May 2019

Jackson County, No. 17 CVS 439

CRYSTAL COGDILL and JACKSON’S GENERAL STORE, INC., Plaintiffs,

             v.

SYLVA SUPPLY COMPANY, INC., DUANE JAY BALL and IRENE BALL,
Defendants.


      Appeal by Plaintiffs from order entered 16 April 2018 by Judge Mark E. Powell

in Jackson County Superior Court. Heard in the Court of Appeals 31 January 2019.


      The Law Firm of Diane E. Sherrill, PLLC, by Diane E. Sherrill, for Plaintiffs-
      Appellants.

      Coward, Hicks, & Siler, P.A., by Andrew C. Buckner, for Defendants-Appellees.


      COLLINS, Judge.


      Plaintiffs appeal the trial court’s order granting summary judgment in favor of

Defendants as to Plaintiffs’ action alleging seven claims, including breach of contract.

Plaintiffs’ claims all stem from their assertion that they possessed a valid and

enforceable Right of First Refusal to purchase the property at issue at the time

Defendant Sylva Supply Company, Inc., conveyed the property to Defendants Duane

Jay and Irene Ball. Plaintiffs and Sylva had entered into a written lease agreement,

which was subsequently assigned to Plaintiff Jackson’s General Store, Inc., which

contained a Right of First Refusal. However, the written lease had expired and,
                            COGDILL V. SYLVA SUPPLY COMPANY, INC.

                                          Opinion of the Court



pursuant to this Court’s opinion in Ball v. Cogdill, COA17-409, 2017 N.C. App. LEXIS

1074 (N.C. Ct. App. December 19, 2017) (unpublished), Plaintiffs were holdover

tenants under a year-to-year tenancy created by operation of law. The question posed

by this appeal is whether the year-to-year tenancy created by operation of law

included the Right of First Refusal contained in the expired written lease. We hold

that it did not.

                    I. Procedural History and Factual Background

       On 19 May 1999, Crystal Cogdill1 (Cogdill) and Sylva Supply Company, Inc.

(Sylva), entered into a “Buy-Sell and Lease Agreement” (Original Lease) by which

Sylva leased the building located at 582 West Main Street (Property) to Cogdill. The

lease was for a period of five years and included an option to renew for a single,

additional period of five years. To exercise the option to renew, Cogdill had to provide

written notice to Sylva no later than thirty days before the expiration of the first, five-

year period. The renewal terms were to be determined at the time of renewal;

however, the terms of the renewed lease were to be determined by the parties at least

ninety days before the expiration of the first, five-year lease period.2 The first, five-

year period expired on 31 May 2004.




       1   Then Crystal Cogdill Jones.
       2   The apparent internal incongruency of this term has no significance in this appeal.

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                                  Opinion of the Court



      The Original Lease granted Cogdill a Right of First Refusal to purchase the

Property, should Sylva wish to sell the Property. Sylva was required to notify Cogdill

by certified mail of the option to purchase the Property at the lowest price and on the

same terms and conditions Sylva was willing to accept from other purchasers. If,

within fifteen days of receiving Sylva’s offer, Cogdill did not mail Sylva notice that

she intended to exercise her Right of First Refusal to purchase the Property, Sylva

had the right to sell the Property to other purchasers.

      On 1 June 1999, a “Memorandum of Lease and Right of First Refusal”

memorializing the Original Lease was recorded in the Jackson County Public

Registry. On 1 July 1999, Cogdill assigned the Original Lease to Jackson’s General

Store, Inc. (Jackson’s), a business incorporated by Cogdill.

      On 7 June 2001, Cogdill and Sylva executed an “Amendment to Lease

Agreement” (Lease), which amended the original rental period from five years to

seven years and, thus, extended the original rental period end date from 31 May 2004

to 31 May 2006. If Sylva opted to renew the Lease for an additional, seven-year

period, the new rental period would run from 1 June 2006 to 31 May 2013. The

amendment also modified the amount of rent to be paid. All other terms remained

unmodified.




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                                       Opinion of the Court



       No written notice was given to renew the Lease beyond the expiration of the

initial seven-year period, which ended 31 May 2006.                        However, Plaintiffs

continuously remained in tenancy.

       On 7 May 2015, without first giving Plaintiffs an option to the buy the

Property, Sylva sold the Property to Duane Jay and Irene Ball (the Balls). In June

2016, the Balls instituted a summary ejectment action against Plaintiffs. Both the

small claims court and district court ruled in favor of Plaintiffs and dismissed the

action. The Balls appealed to the Court of Appeals.

       While the appeal was pending, Plaintiffs filed the complaint in the present

action. In the complaint, Plaintiffs alleged causes of action for breach of contract,

fraud, constructive fraud, civil conspiracy, claim to set aside deed, tortious

interference with contract, and unfair and deceptive acts or practices. These claims

were based on Plaintiffs’ assertion that they were wrongfully denied the right to

exercise their Right of First Refusal to purchase the Property. Plaintiffs also filed a

notice of lis pendens.

       On 8 September 2017, Defendants moved to dismiss the complaint under Rule

12(b)(6) of the North Carolina Rules of Civil Procedure. On 19 December 2017, this

Court issued Ball v. Cogdill,3 holding as follows: “Where [Cogdill and Jackson’s]

remained in tenancy after the expiration of their lease, the lease became a year-to-


       3The Balls were the plaintiffs while Cogdill and Jackson’s were the defendants in the summary
ejectment action. The parties’ roles are reversed on this appeal. Sylva was not a party.

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                                        Opinion of the Court



year tenancy. Because [the Balls] failed to provide the necessary 30 days’ notice, the

trial court did not err in denying [the Balls’] summary ejectment complaint.” Id. at

*1.

       On 24 January 2018, Defendants filed an amended motion to dismiss, citing

this Court’s opinion in Ball as further support for dismissal. On 19 February 2018,

Plaintiffs filed a motion for partial summary judgment, also citing this Court’s

opinion in Ball as support for its motion.

       The trial court heard Defendants’ original motion to dismiss, but did not

consider this Court’s opinion in Ball, and entered an order on 12 March 2018 denying

the motion. On 16 March 2018, Defendants filed an answer to Plaintiffs’ motion for

partial summary judgment and raised the doctrine of collateral estoppel as a defense

to Plaintiffs’ claims.

       On 2 April 2018,4 the trial court heard Plaintiffs’ motion for partial summary

judgment and Defendants’ amended motion to dismiss. Defendants’ motion was

converted to a motion for summary judgment because the trial court considered the

Court of Appeals’ opinion in Ball, a matter outside the pleadings. On 16 April 2018,

the trial court entered its order denying Plaintiffs’ motion for partial summary




       4  The order states that this cause of action was “heard before the undersigned judge presiding
over the March 26, 2018 civil session of the Superior Court of Haywood County[.]” However, both
parties stipulated that the “Order appealed from was the result of a hearing held during the April 2,
2018 civil session of the Superior Court of Haywood County[.]”

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                      COGDILL V. SYLVA SUPPLY COMPANY, INC.

                                   Opinion of the Court



judgment and granting Defendants’ motion for summary judgment. From this order,

Plaintiffs appeal.

                                   II. Jurisdiction

      The trial court’s 16 April 2018 order granting Defendants’ motion for summary

judgment was a final judgment. Jurisdiction of this appeal is therefore proper under

N.C. Gen. Stat. § 7A-27(b)(1) (2018) and N.C. Gen. Stat. § 1-271 (2018).

                                   III. Discussion

A. Court of Appeals’ opinion in Ball v. Cogdill

      We begin this discussion with a summary of this Court’s opinion in Ball v.

Cogdill, which involved the same background facts and the same parties, except

Sylva, as the case presently before us. In Ball, this Court rejected the Balls’ argument

that the trial court erred by denying their complaint for summary ejectment because

the trial court erroneously concluded that Cogdill and Jackson’s were under a lease

when the Balls attempted to summarily evict them from the Property. This Court

noted, and Cogdill and Jackson’s conceded, that no written notice had been given to

renew the Lease beyond the expiration of the first, seven-year period. Id. at *4. This

Court explained, however, that the “failure to renew a lease does not automatically

result in ejectment of a tenant.” Id. The record reflected that Cogdill and Jackson’s

had “remained in tenancy” after the expiration of the Lease and paid rent every

month to the Balls, and the Balls had accepted the payment. Id. at *5-6. Citing our



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                                         Opinion of the Court



Supreme Court’s opinion in Coulter v. Capitol Fin. Co., 266 N.C. 214, 217, 146 S.E.2d

97, 100 (1966), this Court concluded the Lease had thus become a year-to-year

tenancy created by operation of law, terminable by either party upon giving the other

thirty days’ notice directed to the end of the year of such new tenancy. Id. at *5. As

the Balls had failed to give Cogdill and Jackson’s the requisite thirty days’ notice

before demanding they vacate the Property, the Balls could not summarily eject

Cogdill and Jackson’s after they refused to vacate. Id. at *6.

B. Present Appeal

      The parties agree that, pursuant to Ball, Plaintiffs were under a year-to-year

tenancy created by operation of law when Sylva sold the Property to the Balls.5 The

parties disagree, however, as to the legal import of the Ball decision regarding the

Right of First Refusal contained in the written Lease. Plaintiffs argue that all of their

rights and duties under the Lease, including their Right of First Refusal, continued

in effect after the Lease expired and became a year-to-year tenancy created by

operation of law. Defendants argue that following the expiration of the written Lease,

the Right of First Refusal did not become part of the new year-to-year tenancy created

by operation of law. Thus, the issue before us is whether the year-to-year tenancy

created by operation of law included the Right of First Refusal contained in the

written Lease. We hold that it did not.



      5   The parties each argue the doctrine of collateral estoppel to support this shared conclusion.

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                                     Opinion of the Court



C. Standard of Review

       Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2018). The standard

of review of an appeal from summary judgment is de novo. In re Will of Jones, 362

N.C. 569, 573, 669 S.E.2d 572, 576 (2008).

D. Analysis

       When a lease for a fixed term of a year, or more, expires, a tenant holds over,

and “the lessor elects to treat him as a tenant, a new tenancy relationship is created

as of the end of the former term.” Kearney v. Hare, 265 N.C. 570, 573, 144 S.E.2d

636, 638 (1965). “This is, by presumption of law, a tenancy from year to year, the

terms of which are the same as those of the former lease in so far as they are

applicable . . . .” Id. Our appellate courts have not squarely addressed whether a

right of first refusal, which “creates in its holder . . . the right to buy land before other

parties if the seller decides to convey it[,]” Smith v. Mitchell, 301 N.C. 58, 61, 269

S.E.2d 608, 610-11 (1980), is a term “applicable” to a year-to-year tenancy created by

operation of law after the expiration of a written lease. Our appellate courts have,

however, addressed this issue in the context of an option to purchase property in a




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                                       Opinion of the Court



written lease agreement. Id. (explaining that a right of first refusal is analogous to

an option to purchase, which creates in its holder the power to compel sale of land).

       This Court concluded in Vernon v. Kennedy, 50 N.C. App. 302, 273 S.E.2d 31

(1981), that an option in the written lease to purchase the leased property could not

be construed as “applicable” to the tenancy from year to year created by operation of

law. Id. at 304, 273 S.E.2d at 32. The one-year lease in Vernon included an option to

extend the lease for an additional, one-year period. The lease thus provided, “at an

absolute maximum, for a term of two years” and could not remain “in force after 30

April 1973.” Id. at 303, 273 S.E.2d at 32. The lease also included an option for

plaintiffs to purchase the property “at any time during the term of this lease or

extended period thereof . . . .” Id.

       On 21 November 1979, plaintiffs in Vernon brought an action for specific

performance of the option to purchase contained in the written lease. This Court

explained that upon the expiration of the written lease, a new tenancy relationship

had been created by operation of law, and thus, plaintiffs “were at best tenants from

year to year under the applicable terms of the expired lease.” Id. This Court held

that the option to purchase could not be construed as “applicable” to the tenancy from

year to year because by its own terms, the option was “limited to ‘the term of this

lease or the extended period thereof.’” Id. at 304, 273 S.E.2d at 32 (quoting the

contract at issue). “Since the lease, again by its own terms, could not be extended



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                                   Opinion of the Court



beyond 30 April 1973, an attempt to exercise the option in 1979 would come outside

the extended term of the lease.” Id.

      A similar result was reached in Hannah v. Hannah, 21 N.C. App. 265, 204

S.E.2d 212 (1974), where this Court held that defendant’s obligation under a written

lease to purchase plaintiff’s stock and equipment at the end of the lease did not

remain in effect throughout the period the plaintiff was permitted to hold over after

the expiration of the lease. Id. at 267, 204 S.E.2d at 214. By written agreement,

defendant leased his filling station to the plaintiff for a five-year period and agreed

that “‘[i]f at the end of five years, [defendant] should want possession of said filling

station,’ he would ‘purchase all stock and equipment at 20% discount . . . .’” Id.

Defendant did not want possession at the end of five years, but permitted plaintiff to

hold over and remain in possession as his tenant for more than fifteen additional

years. Id. When defendant proposed to raise plaintiff’s rent, plaintiff demanded that

defendant comply with the provisions of the lease agreement to purchase the stock

and equipment. Defendant refused.

      On appeal, this Court looked at the “express language of the original lease

[which] brought the purchase agreement into play only if ‘at the end of five years,’ the

landlord should want possession.” Id. at 267-68, 204 S.E.2d at 214. As the original

lease term was also for a period of five years, “obviously the parties contemplated the

possibility that there might be a holding over or an extension after the initial five-



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                                   Opinion of the Court



year term, but nothing in the language indicate[d] that the parties intended the

purchase obligation to remain in effect throughout whatever holdover or extended

period might occur.” Id. Accordingly, this Court held “that defendant’s obligation to

purchase as contained in the . . . written agreement was no longer in effect when,

more than twenty years thereafter, he was called upon to fulfill it.” Id. at 268, 204

S.E.2d at 214.

      In a slightly different factual scenario, the Court in Davis v. McRee, 299 N.C.

498, 263 S.E.2d 604 (1980), concluded that an option to purchase was incorporated

into an express extension of an original lease. The parties entered into a written,

one-year lease agreement, which contained an option for defendants to purchase the

property during the lease period. When the agreement expired on 31 January 1974,

defendants continued in tenancy and continued to make rental payments until 13

August 1974. On that date, the parties met and added the following language to the

end of the original lease agreement: “The term of this lease shall be from Jan. 31,

1974 through Jan. 31, 1976.” Id. at 500, 263 S.E.2d at 605.

      In the fall of 1975, defendants indicated their intention to exercise the option

to purchase. They arranged to borrow the purchase money, and plaintiffs executed a

deed to the property. The parties ultimately disagreed on the sale price, and plaintiffs

instituted an action to cancel the deed. In court, plaintiffs argued that the option to

purchase had died with the expiration of the term of the original lease and that the



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                                  Opinion of the Court



new agreement was not effective to revive the option. Id. at 501, 263 S.E.2d at 606.

Our Supreme Court noted, “Where the parties have made a separate agreement

extending the lease, the agreement must be examined in light of all the circumstances

in order to ascertain the meaning of its language, with the guide of established

principles for the construction of contracts, and in the light of any reasonable

construction placed on it by the parties themselves.” Id. at 502, 263 S.E.2d at 606-07

(quotation marks and citation omitted). The Court held it was “evident from the

conduct of the parties here that they intended to incorporate the option to purchase

in their August agreement to extend the lease.” Id. at 503, 263 S.E.2d at 607.

      As in Vernon and Hannah, Defendants’ obligation to offer Plaintiffs the Right

of First Refusal to purchase the Property was not applicable to the year-to-year

tenancy created by operation of law, and did not remain in effect throughout the

period in which Plaintiffs were permitted to hold over after the expiration of the

Lease. By written agreement, the Lease expired by its express terms on 31 May 2006,

unless timely renewed for a second, seven-year period. Prior to the expiration of the

Lease on 31 May 2006, Plaintiffs failed to timely exercise their option to renew the

Lease for a second, seven-year period. Additionally, prior to the expiration of the

Lease on 31 May 2006, Plaintiffs did not exercise their Right of First Refusal as

Defendants did not desire to sell the Property. Moreover, even if timely notice to




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                      COGDILL V. SYLVA SUPPLY COMPANY, INC.

                                  Opinion of the Court



renew had been given, the Lease provided, at an absolute maximum, for a period of

fourteen years and could not remain in force after 31 May 2013.

      As in Vernon, upon the expiration of the written Lease, a new tenancy

relationship was created by operation of law, and thus, Plaintiffs were tenants from

year to year under the applicable terms of the expired lease. Ball at *5. Although

the Right of First Refusal clause itself does not specifically reference the Lease

expiration dates, the Lease by its own terms could not be extended beyond 31 May

2013. Thus, an attempt to enforce the Right of First Refusal in 2015 “would come

outside the extended term of the lease.” Vernon, 50 N.C. App. at 304, 273 S.E.2d at

32.

      Moreover, unlike in Davis, the parties in this case did not expressly extend the

Lease after its expiration and Plaintiffs’ attempt to exercise their Right of First

Refusal was not made during such extended term, but was made nine years after the

Lease’s expiration. Furthermore, while the parties’ conduct in Davis evidenced an

intent to incorporate the purchase option into the express extension of the lease

agreement, the parties’ conduct in entering into the Lease in this case did not. The

terms of the Lease specifically did not provide for incorporation of the Right of First

Refusal as the renewal terms were to be determined by the parties at least ninety

days before the expiration of the first, seven-year lease period. See Hannah, 21 N.C.

App. at 268, 204 S.E.2d at 214 (“nothing in the language indicate[d] that the parties



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                          COGDILL V. SYLVA SUPPLY COMPANY, INC.

                                         Opinion of the Court



intended the purchase obligation to remain in effect throughout whatever holdover

or extended period might occur”).6             Accordingly, Defendants’ obligation to offer

Plaintiffs the Right of First Refusal contained in the written Lease was no longer in

effect when, approximately nine years thereafter, they were called upon to do so. See

Vernon, 50 N.C. App. at 304, 273 S.E.2d at 32; Hannah, 21 N.C. App. at 268, 204

S.E.2d at 214; see also Atlantic Product Co. v. Dunn, 142 N.C. 471, 471, 55 S.E. 299,

300 (1906) (holding that an option to renew a lease or purchase property contained in

a written lease can “be exercised only while the lease was in force”); Smyth v. Berman,

242 Cal. Rptr. 3d 336 (Cal. App. 5th 2019) (holding that a right of first refusal

contained in an expired written lease was not an essential term which carried over

into the holdover tenancy); Bateman v. 317 Rehoboth Ave., LLC, 878 A.2d 1176, 1185

(Del. Ch. 2005) (holding that a right of first refusal in a lease agreement does not

presumptively carry over into a holdover tenancy).

       This result is supported by the public policy purposes that statutory and

common law holdover tenancies were generally created to address, as explained by

Vice Chancellor Strine of the Court of Chancery of Delaware:

               Historically, in our legal tradition, when tenants continued
               to occupy property beyond the expiration of a lease,
               landlords were entitled to treat holdover tenants as
               trespassers, or to summarily evict them. The doctrine of

       6 The dissent’s analysis relies upon testimonial evidence contained in a transcript from a prior
case, concerning a different issue, before this Court. That transcript is not part of this record on
appeal. Our “review is solely upon the record on appeal, the verbatim transcript of proceedings . . .,
and any other items filed pursuant to this Rule 9.” N.C. R. App. P. 9(a) (2018).

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                      COGDILL V. SYLVA SUPPLY COMPANY, INC.

                                   Opinion of the Court



             ‘self-help’ arose in the interest of landlords and incoming
             tenants, allowing landlords to promptly recover possession
             of leased property from tenants who held it improperly.
             Not surprisingly, widespread use of ‘self-help’ remedies led
             to concerns for the endangerment of persons and property,
             and breaches of the peace. Statutory [and common law]
             holdover tenancies emerged as a means of protecting
             tenants from self-help by landlords who were legally
             entitled to treat them as trespassers -- that is, to keep
             people from being dumped out on the street. [Holdover
             tenancies] attempt to maintain the status quo of a tenant’s
             occupancy and use of leased property for a short period of
             time during which a landlord can pursue summary
             eviction. This approach balances the policy objectives of
             permitting landlords and incoming tenants to recover
             possession of property in a timely fashion and permitting
             outgoing tenants to move out in an orderly manner,
             thereby ‘improving the prospects for preserving the public
             peace.’

Bateman, 878 A.2d at 1182-83. “Holdover tenancies are therefore not intended to

prolong the existence of legal rights between the landlord and tenant, such as rights

of first refusal, that are otherwise unrelated to occupancy and use of property.” Id.

at 1183. Moreover, “[u]nlike an option to purchase property, which an option holder

can proactively exercise, a right of first refusal can be exercised only when the holder

of property entertains an offer from a third party to purchase the property.” Id. at

1183-84. Thus, “the extension of a right of first refusal beyond the termination of the

contract that conveyed that right makes little sense, given the ease with which the

exercise of such a right could be frustrated.” Id. at 1184.

             If a right of first refusal presumptively carried forward into
             a holdover tenancy, a landlord wishing to nullify that right


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                                  Opinion of the Court



             could easily do so by evicting the holdover tenant and
             selling the property one day later, both of which would be
             within its rights as the landlord of a holdover tenant. This
             creates an incentive for landlords to evict holdover tenants
             as soon as possible [], a result at odds with the stability of
             commercial tenancies. The contrary rule that carries such
             purchase options forward only if the parties so specify
             avoids this result, thereby making holdover tenancies more
             stable.

Smyth, 242 Cal. Rptr. 3d at 345 (internal quotation marks and citation omitted).

      Plaintiffs cite no authority for their assertion that the Right of First Refusal

provided under the Lease continued in effect when Plaintiffs failed to renew the Lease

and continued to inhabit the Property as holdover tenants on a year-to-year basis,

beyond Ball’s inclusion of this quote from Coulter v. Capitol Fin. Co.:

             “Nothing else appearing, when a tenant for a fixed term of
             one year or more holds over after the expiration of such
             term, the lessor has an election. He may treat him as a
             trespasser and bring an action to evict him and to recover
             reasonable compensation for the use of the property, or he
             may recognize him as still a tenant, having the same rights
             and duties as under the original lease, except that the
             tenancy is one from year to year and is terminable by either
             party upon giving to the other 30 days’ notice directed to
             the end of any year of such new tenancy.”

Ball at *4-5 (quoting Coulter, 266 N.C. at 217, 146 S.E.2d at 100) (emphasis added).

However, Coulter relied on Kearney v. Hare, cited above, which more precisely

explains that when a lease for a fixed term of a year, or more, expires, a tenant holds

over, and “the lessor elects to treat him as a tenant, a new tenancy relationship is

created as of the end of the former term.” Kearney, 265 N.C. at 573, 144 S.E.2d at


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                                   Opinion of the Court



638. “This is, by presumption of law, a tenancy from year to year, the terms of which

are the same as those of the former lease in so far as they are applicable . . . .” Id.

      To be sure, there is precedent from several states holding that rights of first

refusal (or other purchase options) presumptively carry forward into holdover

tenancies. See Smyth, 242 Cal. Rptr. 3d at 345 (listing cases discussing presumptive

rights and options in holdover tenancies). However, the majority rule is the rule

supported by our case law and general policy that we apply today. See id. The Right

of First Refusal in this case was not “applicable” to the year-to-year tenancy created

by operation of law after the expiration of the Lease.

                                    IV. Conclusion

      For the reasons stated above, the Right of First Refusal in the written Lease

was not a term applicable to the year-to-year tenancy created by operation of law

upon the expiration of the written Lease. Accordingly, Plaintiffs were not entitled to

be given the Right of First Refusal to purchase the Property prior to Sylva’s sale of

the Property to the Balls. Because of our holding, we need not reach Plaintiffs’

argument that the Right of First Refusal did not violate the rule against perpetuities.

As there was no genuine issue of material fact and Defendants were entitled to

judgment as a matter of law, the trial court’s order granting summary judgment in

favor of Defendants is affirmed.

      AFFIRMED.



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              COGDILL V. SYLVA SUPPLY COMPANY, INC.

                         Opinion of the Court



Judge ZACHARY concurs.

Judge TYSON dissents by separate opinion.




                                - 18 -
 No. COA18-845 – Cogdill v. Sylva Supply Company, Inc.


      TYSON, Judge, dissenting.

      The majority’s opinion erroneously concludes as a matter of law the tenant’s

right of first refusal to purchase the property, included in the original lease between

Plaintiffs and Defendant Sylva Supply Co. Inc., is not a term or provision that is

applicable to or enforceable by Plaintiffs’ during their year-to-year tenancy. The trial

court’s grant of summary judgment in favor of Defendants is error. Whether the

Plaintiffs’ right of first refusal in this case applies to the year-to-year tenancy or is a

wholly independent, stand-alone agreement between the parties, rests upon the

intent of the parties and raises genuine issues of material fact. Summary judgment

is inappropriate in this circumstance. I vote to reverse the trial court’s order and

remand for a trial on the merits. I respectfully dissent.

                                 I. Standard of Review

      Summary judgment is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that any party is entitled to a

judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2017). “[T]he party

moving for summary judgment ultimately has the burden of establishing the lack of

any triable issue of fact.” Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 447,

579 S.E.2d 505, 507 (2003) (citation omitted).

             A defendant may show entitlement to summary judgment
             by (1) proving that an essential element of the plaintiff’s
             case is non-existent, or (2) showing through discovery that
                           COGDILL V. SYLVA SUPPLY CO.

                                 TYSON, J., dissenting



            the plaintiff cannot produce evidence to support an
            essential element of his or her claim, or (3) showing that
            the plaintiff cannot surmount an affirmative defense.
            Summary judgment is not appropriate where matters of
            credibility and determining the weight of the evidence
            exist.

Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 208, 212, 580 S.E.2d 732, 735

(2003) (citations and internal quotation marks omitted). Defendants cannot meet

this standard.

                              II. Right of First Refusal

      The parties are operating under a year-to-year tenancy, pursuant to this

Court’s holding in Ball v. Cogdill, __ N.C. App. __, 808 S.E.2d 617, 2017 N.C. App.

LEXIS 1074 (2017) (unpublished). Our Supreme Court has stated that when a

landlord continues to accept rent from a tenant after the express term of the lease

expires, a tenancy from year-to-year is created, “the terms of which are the same as

those of the former lease in so far as they are applicable, in the absence of a new

contract between them or of other circumstances rebutting such presumption.”

Kearney v. Hare, 265 N.C. 570, 573, 144 S.E.2d 636, 638 (1965).

      The majority’s opinion concludes a right of first refusal is not an “applicable”

term of the lease as a matter of law to affirm summary judgment. Based upon

controlling North Carolina contract law and cases involving option and first refusal

contracts, the intent of the parties is a question of fact and summary judgment is

inappropriate in this case. On the merits and as a question of law, a review of


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                                  TYSON, J., dissenting



jurisdictions which have ruled on this issue supports a conclusion that a right of first

refusal survives and applies in year-to-year tenancies.

                               A. North Carolina Law

      A right of first refusal is a preemptive right, which “creates in its holder only

the right to buy land before other parties if the seller decides to convey it.” Smith v.

Mitchell, 301 N.C. 58, 61, 269 S.E.2d 608, 610-11 (1980). Though distinguishable

from a unilateral option contract, our Supreme Court has held review of preemptive

rights and options can be analogous. Id. at 63, 269 S.E.2d at 612 (“Just as the

commercial device of the option is upheld, if it is reasonable, so too the provisions of

a preemptive right should be upheld if reasonable, particularly here where the

preemptive right appears to be part of a commercial exchange, bargained for at arm’s

length.”). The right of first refusal can be an express, unitary agreement or can be

contained within a lease, option, covenant, or other agreement.

      “[T]he same principles of construction applicable to all contracts apply to option

contracts.” Lagies v. Myers, 142 N.C. App. 239, 247, 542 S.E.2d 336, 341 (2001). If

the terms of the contract are clear, the contract “must be enforced as it is written,

and the court may not disregard the plainly expressed meaning of its language.”

Catawba Athletics, Inc. v. Newton Car Wash, Inc., 53 N.C. App. 708, 712, 281 S.E.2d

676, 679 (1981). “Where the language of a contract is ambiguous, courts consider




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                                  TYSON, J., dissenting



other relevant and material extrinsic evidence to ascertain the parties’ intent[.]”

Lagies, 142 N.C. App. at 247, 542 S.E.2d at 342.

      Ambiguous terms are conditions or provisions that are “fairly and reasonably

susceptible to either of the constructions asserted by the parties.” Glover v. First

Union National Bank, 109 N.C. App. 451, 456, 428 S.E.2d 206, 209 (1993). In

reviewing and construing contracts, ambiguous terms are to be “construed against

the drafting party.” Lagies, 142 N.C. App. at 248, 542 S.E.2d at 342.

      The majority’s opinion erroneously purports to base the outcome of this case

on Vernon v. Kennedy, 50 N.C. App. 302, 273 S.E.2d 31 (1981), and Hannah v.

Hannah, 21 N.C. App. 265, 204 S.E.2d 212 (1974).           Neither of those cases are

applicable to the facts before us nor are controlling to the outcome of this case.

      Vernon construed an option to purchase, as opposed to a right of first refusal,

whose express and explicit terms stated the right could not be construed to survive

expiration of the lease term or be “applicable” to the subsequent year-to-year tenancy:

             The option term in paragraph 7 of the lease cannot be
             construed as “applicable” to the tenancy from year to year
             for the reason that by its own terms, paragraph 7 is limited
             to ‘the term of this lease or the extended period thereof.’
             Since the lease, again by its own terms, could not be
             extended beyond 30 April 1973, an attempt to exercise the
             option in 1979 would come outside the extended term of the
             lease.

Vernon, 50 N.C. App. at 304, 273 S.E.2d 32 (emphasis supplied).




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                                  TYSON, J., dissenting



       The issue presented in Hannah was similar.          A lease of a filling station

included the provision: “If at the end of five years, [the tenant] should want possession

of said filling station, he would purchase all stock and equipment at 20% discount,

and not over 2 years bills.” Hannah, 21 N.C. App. at 267, 204 S.E.2d at 214 (internal

quotation marks omitted) (emphasis supplied). The tenant remained in possession of

the premises for over fifteen years after the lease expired. Id. at 267, 204 S.E.2d at

214. This Court held that the express term “at the end of five years” could not be

construed to include the end of any renewal or extension, and the obligation to

purchase was extinguished. Id. at 268, 204 S.E.2d at 214.

       Unlike in Vernon and Hannah, neither the right of first refusal paragraph in

Plaintiffs’ lease nor the “Memorandum of Lease and Right of First Refusal”

(“Memorandum”) contain any express limitation restricting the right to a specific

term or event. Paragraph XI states that if the landlord desires to sell the property

“it shall offer” the option to purchase to the tenant. The majority’s opinion asserts

the terms of the lease restrict the right of first refusal to the dates of the lease and

one additional seven year extension.        Without express language limiting the

applicability of the right of first refusal upon the expiration of the lease as in Vernon

or to a specific time as in Hannah, the applicability of the right is, at minimum,

ambiguous.

       The Memorandum states:



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                             COGDILL V. SYLVA SUPPLY CO.

                                   TYSON, J., dissenting



                   The undersigned hereby declare that they have
             entered into a Lease and Right of First Refusal Agreement
             dated May 19, 1999, which contains a right of first refusal
             conveyed by Sylva Supply Company, Inc. to Crystal Cogdill
             Jones, upon the property located at 582 West Main Street,
             Sylva, North Carolina, known as the Sylva Supply
             Company Building.

                     The undersigned further state that the written
             instrument of lease and right of first refusal and any
             amendments thereto will be kept for safekeeping at the
             office of Sylva Supply Company, Inc. . . .

(Emphasis supplied). This written Memorandum is express in its terms and meets

all the requirements of the Statute of Frauds for “the party to be charged.” N.C. Gen.

Stat. § 22-2 (2017). At minimum, genuine issues of material fact exist on the intent

of the parties of the provisions and Memorandum.

        The majority’s opinion purports to distinguish our Supreme Court’s holding in

Davis v. McRee, 299 N.C. 498, 263 S.E.2d 604 (1980), though the facts of that case

are clearly more applicable here than either Vernon or Hannah.               The majority

opinion’s analysis hinges upon the parties in Davis having retroactively extended

their lease beyond the original term after a holdover, and attempted to exercise their

option to purchase during that retroactively extended renewal term. However, the

terms of the lease in Davis were deemed to be ambiguous, and our Supreme Court’s

analysis of how to construe ambiguous option terms is instructive and controlling

here:

             [T]he ultimate test in construing any written agreement is
             to ascertain the parties’ intentions in light of all the relevant

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                             COGDILL V. SYLVA SUPPLY CO.

                                  TYSON, J., dissenting



             circumstances and not merely in terms of the actual
             language used.

              ...

             The parties are presumed to know the intent and meaning
             of their contract better than strangers, and where the
             parties have placed a particular interpretation on their
             contract after executing it, the courts ordinarily will not
             ignore that construction which the parties themselves have
             given it prior to the differences between them.

Davis, 299 N.C. at 502, 263 S.E.2d at 606-07 (emphasis supplied).

       Our Supreme Court in Davis looked to the actions of the parties because the

Court deemed the language and applicability of the lease extension to be ambiguous.

Id. at 502-03, 263 S.E.2d 607. The subsequent actions of both parties indicated their

intention to abide by and extend the option: the defendants exercised their option and

the plaintiffs had the deed of purchase drawn up. Id.

       Here, the terms of the lease and the signed and recorded Memorandum,

viewed in the light most favorable to Plaintiffs, are ambiguous, as there is no

expressed limitation on or termination of the right of first refusal. We also take

judicial notice of subsequent behavior by parties, which also suggests the recorded

right of first refusal survived the expiration of the lease, with or without the year-to-

year tenancy, and shows ambiguity. See N.C. Gen. Stat. § 8C-1, Rule 201 (2017) (a

fact that is “capable of accurate and ready determination by resort to sources whose

accuracy cannot reasonably be questioned” can be judicially noticed “at any stage of

the proceeding”); see also West v. Reddick, Inc., 302 N.C. 201, 202-03, 274 S.E.2d 221,

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                             COGDILL V. SYLVA SUPPLY CO.

                                   TYSON, J., dissenting



223 (1981) (“This Court has long recognized that a court may take judicial notice of

its own records in another interrelated proceeding where the parties are the same,

the issues are the same and the interrelated case is referred to in the case under

consideration . . . . on any occasion where the existence of a particular fact is

important, as in determining the sufficiency of a pleading”).

         As noted in the record when this case was previously before this Court, Sylva

Supply Company, Inc., provided Ms. Cogdill with an opportunity to purchase the

property during the year-to-year tenancy in 2012, though the transaction did not

close.   This proffer indicates the owner/landlord’s recognition of the continued

viability and its intent to continue honoring the tenant’s express right of first refusal,

either as stated in the lease or the recorded Memorandum. However, the 2015 sale

of the property that is before us, closed without seller-landlord offering Plaintiffs the

first refusal to exercise their right to purchase the property, which injects ambiguity

into the intent and actions of the parties.

         Further, W. Paul Holt, Jr., the attorney who drafted the original lease,

amendment, and recorded Memorandum, and maintained possession of the lease in

his office, was also the closing attorney and drafted the 2015 deed for the sale of the

property to the Balls.      This deed warrants the premises were free from all

encumbrances on 7 May 2016. Not only are ambiguous terms construed against the

drafter, see Lagies, 142 N.C. App. at 248, 542 S.E.2d at 342, the lease is also construed



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                            COGDILL V. SYLVA SUPPLY CO.

                                  TYSON, J., dissenting



against the original drafter’s successor-in-interest. See Mosley & Mosley Builders,

Inc. v. Landin, Ltd., 97 N.C. App. 511, 525, 389 S.E.2d 576, 584 (1990).

       The ambiguity present in the language of the contract, in the express language

contained in the Memorandum, and in the subsequent actions of the parties presents

and shows genuine issues of material fact exist, which precludes disposition of this

case by summary judgment. See Pacheco, 157 N.C. App. at 447, 579 S.E.2d at 507.

The trial court’s order is properly reversed.

                                B. Other Jurisdictions

       The genuine issues of material facts of the parties’ intent existing in this case

do not require a determination on whether rights of first refusal are “applicable”

terms under a year-to-year lease. The express terms and provisions of the signed and

recorded Memorandum preclude summary judgment for Defendants. I also disagree

with the majority opinion’s analysis of how North Carolina law determines this issue.

       The majority’s opinion cites a purported “majority” rule, which holds the right

of first refusal presumptively does not carry forward, as the rule that is supported by

North Carolina case law and general public policy. A closer reading of states which

have decided this issue indicates North Carolina does not agree with nor follow their

decisions.

       The majority’s opinion cites Smyth v. Berman, 242 Cal. Rptr. 3d 336 (Ct. App.

2 Dist. 2019), which provides a survey of states that have ruled on the issue of



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                                 TYSON, J., dissenting



whether rights of first refusal carry forward into holdover tenancies after the lease

term expires. Id. at 345-46. The opinion in Smyth characterizes North Carolina as

part of the “majority” rule, based upon the ruling in Vernon. As discussed above and

in other jurisdictions, Vernon is distinguishable “based on . . .        [the court’s]

interpretation of the particular [and express] lease terms presented.” Kutkowski v.

Princeville Prince Golf Course, LLC, 289 P.3d 980, 992 (Haw. Ct. App. 2012), rev’d on

other grounds, 300 P.3d 1009 (Haw. 2013); see also Peter-Michael, Inc. v. Sea Shell

Assocs., 709 A.2d 558, 563 & n.6 (Conn. 1998).

       Kutkowski held that “[w]hen a lease for a specified term is not extended or

renewed, and the lessee holds over after the expiration of the lease, unless otherwise

agreed, the law implies that the parties’ rights and obligations with respect to that

holdover tenancy continue as set forth in the expired lease agreement.” Id. at 994

(emphasis supplied). This principle “states the common law followed in Hawai‘i and

most every other jurisdiction surveyed, and sets forth the common understanding and

rules applicable to the dealings of landlord and tenant after the termination of their

express agreement, but effectuates, as the law must, the parties’ right to agree to the

contrary.” Id. This analysis and conclusion follows the common law of our state. See

Kearney, 265 N.C. at 573, 144 S.E.2d at 638; see also Coulter v. Capitol Fin. Co., 266

N.C. 214, 217, 146 S.E.2d 97, 100 (1966).




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                              COGDILL V. SYLVA SUPPLY CO.

                                    TYSON, J., dissenting



       The majority’s opinion from this “error correcting court” cites Bateman v. 317

Rehoboth Ave., LLC, 878 A.2d 1176, 1183 (Del. Ch. 2005), to explain the purported

“public policy” reasons behind its holding. The Chancery Court of Delaware noted

that

               Statutory holdover tenancies emerged as a means of
               protecting tenants from self-help by landlords who were
               legally entitled to treat them as trespassers – that is, to
               keep people from being dumped out on the street. Statutes
               such as § 5108 attempt to maintain the status quo of a
               tenant’s occupancy and use of leased property for a short
               period of time during which a landlord can pursue
               summary eviction. This approach balances the policy
               objectives of permitting landlords and incoming tenants to
               recover possession of property in a timely fashion and
               permitting outgoing tenants to move out in an orderly
               manner, thereby “improving the prospects for preserving
               the public peace.” Holdover tenancies are therefore not
               intended to prolong the existence of legal rights between
               the landlord and tenant, such as rights of first refusal, that
               are otherwise unrelated to occupancy and use of property.

Id. at 1183. For lease terms of a year or more in Delaware, the holdover “term shall

be month-to-month, and all other terms of the rental agreement shall continue in full

force and effect.” Del. Code Ann. tit. 25, § 5108 (2009).

       Similarly, California courts also declined to presumptively extend the right of

first refusal into the holdover period in order to make “holdover tenancies more

stable.” Smyth, 242 Cal. Rptr. 3d at 345. Like Delaware, California prescribes an

express month-to-month term for a holdover period, generally. Cal. Civ. Code § 1945

(West 2010).


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                            COGDILL V. SYLVA SUPPLY CO.

                                  TYSON, J., dissenting



       Delaware and California’s rule, and thus their “public policy” support for this

rule, is inapplicable to North Carolina. As stated by our Supreme Court, the “common

understanding and rules applicable to the dealings of landlord and tenant after the

termination” of a lease agreement in North Carolina is:

             Nothing else appearing, when a tenant for a fixed term of
             one year or more holds over after the expiration of such
             term, the lessor has an election. He may treat him as a
             trespasser and bring an action to evict him and to recover
             reasonable compensation for the use of the property, or he
             may recognize him as still a tenant, having the same rights
             and duties as under the original lease, except that the
             tenancy is one from year to year and is terminable by either
             party upon giving to the other 30 days’ notice directed to
             the end of any year of such new tenancy.

             The parties to the lease may, of course, agree upon a
             different relationship.

Coulter, 266 N.C. at 217, 146 S.E.2d at 100 (citations omitted) (emphasis supplied).

The parties can also reach an express, independent agreement irrespective of the

lease for a right of first refusal as is contained in the signed and recorded

Memorandum. Further, in Spinks v. Taylor, our Supreme Court held that a landlord

maintains the right of peaceful self-help to evict a holdover tenant and to regain

possession of the premises, at least in a non-residential lease. Spinks v. Taylor, 303

N.C. 256, 262, 278 S.E.2d 501, 504 (1981). The lease before us is a commercial lease

between parties of relatively equal bargaining power.

       In deciding the applicability of rights of first refusal to holdover tenancies, if

the agreement before us is wholly dependent upon the lease, North Carolina should

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                            COGDILL V. SYLVA SUPPLY CO.

                                  TYSON, J., dissenting



consider persuasive authority from states with similar holdover tenancy structures.

Wisconsin enacted a statute which “gives the landlord the election to treat the

holdover tenant as a tenant from year to year under the lease and gives both the

landlord and the tenant the right to terminate such lease at the end of any year upon

30-days-written notice.” Last v. Puehler, 120 N.W.2d 120, 122 (Wis. 1963). In its

consideration of rights of first refusal, the Wisconsin Supreme Court stated:

             We consider an option to purchase or right of a first refusal
             to be an integral part of the lease and one of its terms
             within the meaning of this section. It is not an uncommon
             practice to insert an option to purchase or a right of first
             refusal in a lease. In many cases no lease would be entered
             into by the tenant without such protection.

             The interpretation commanded by the language of this
             section is both logical and fair. Upon the expiration of the
             written lease the tenant has the duty to surrender the
             property. If he holds over, he runs the risk of being
             considered a holdover tenant with all the burdens of the
             lease. The pinpointed question in this case is whether he
             also runs the risk, if it is one, of acquiring all the benefits
             which the lease might provide. Conversely, the landlord
             may eject the tenant, make a new agreement mutually
             satisfactory to him and the tenant, or elect under sec.
             234.07, Stats. By such an election the landlord receives the
             benefits of the lease from year to year but likewise incurs
             its obligations and the tenant is then bound from year to
             year both as to the advantages and disadvantages to him
             of the lease. It is logical to believe the legislature intended
             by the operation of this section to leave the parties as they
             were under the original lease after the landlord elected to
             come under the section. We cannot construe the statute to
             mean that by the election of the landlord a common law
             tenancy is created free and clear from some terms of the
             lease but not from others.


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                            COGDILL V. SYLVA SUPPLY CO.

                                  TYSON, J., dissenting



Id. at 122-23 (emphasis supplied).

       This analysis and logic presumes a right of first refusal or other option to

purchase carries forward into a holdover tenancy unless a contrary intent appears.

Unlike in both Vernon and Hannah, the lease in this case contained no language

indicating the right of first refusal did not carry into the year-to-year tenancy. The

applicable law to these facts should be applied under this analysis.

                                     III. Conclusion

       The Defendants failed to meet their burden to be awarded summary judgment,

as factual questions of intent of the parties remain. I disagree with the majority

opinion’s holding and with its application of policies from states with disparate

holdover tenancy rules. Also, the recorded Memorandum contains an express right

of first refusal agreement between the parties, which is not tied to nor dependent

upon the lease.

       Genuine issues of material facts exist of the parties intent and actions. I vote

to reverse summary judgment and remand to the trial court for a hearing on the

merits. I respectfully dissent.




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