             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA16-596

                              Filed: 17 January 2017

Orange County, No. 15 CVD 1471

RME MANAGEMENT, LLC, Plaintiff,

            v.

CHAPEL H.O.M. ASSOCIATES, LLC and CHAPEL HILL MOTEL ENTERPRISES,
INC., Defendants.


      Appeal by plaintiff from order entered 7 March 2016 by Judge Lunsford Long

in Orange County District Court. Heard in the Court of Appeals 3 November 2016.


      Hedrick Gardner Kincheloe & Garofalo, LLP, by Patricia P. Shields and James
      R. Baker, for plaintiff-appellant.

      Troutman Sanders LLP, by Ashley H. Story and D. Kyle Deak, for defendants-
      appellees.


      ZACHARY, Judge.


      Plaintiff RME Management, LLC (RME) appeals an order granting summary

judgment in favor of Defendants Chapel H.O.M. Associates, LLC (HOM) and Chapel

Hill Motel Enterprises, Inc. (CHME). For the reasons that follow, we affirm.

                                 I. Background

      RME and HOM are the assignees of the lessor and the lessee, respectively, of

real property located at 1301 Fordham Boulevard in Chapel Hill, North Carolina (the

property). The lease was executed on 17 March 1966, and shortly thereafter, the
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                                  Opinion of the Court



original lessee built a hotel on the property, which is still in operation today. In

January 1967, CHME entered into a sublease to operate the hotel. The lease and

sublease were assigned to HOM in August 1988. RME became the owner and current

lessor of the property in October 2012.

      The lease’s initial term commenced on 1 January 1966 and was scheduled to

terminate on 31 December 2015. However, the lease contained a renewal option that

allowed HOM to extend the lease for an additional forty-nine years. HOM exercised

the renewal option in September 2014, and the additional forty-nine-year lease term

was set to commence on 1 January 2016.

      Central to this case, the lease contained two provisions that required HOM, as

lessee, to pay taxes assessed against the property. Paragraph 17 of the lease provides,

in pertinent part:

             As a further rental hereunder, the Lessee shall pay all ad
             valorem and personal property taxes which may be
             assessed against the demised premises and the
             improvements thereon and personal property located
             therein, or any part thereof, for each year of the term of
             this lease. . . .

Paragraph 19 further provides that:

             The Lessee expressly agrees to pay all installments of taxes
             and assessments required to be paid by it hereunder when
             due, subject to the right of said Lessee to contest such tax
             or assessment, in good faith, provided the title of the
             Lessors shall not be placed in jeopardy by forfeiture,
             foreclosure, sale under tax warrant, or otherwise.



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(Emphasis added). Although HOM’s obligation to pay property taxes is clear, the

lease does not define the term “when due” as it relates to the date by which the taxes

must be paid. The lease also contains a default provision:

             If any default of the Lessee hereunder shall continue
             uncorrected for thirty (30) days after notice thereof from
             the Lessors, the Lessors may, by giving written notice to
             the Lessee, at any time thereafter during the continuance
             of such default either (a) terminate the lease, or (b) re-enter
             the demised premises by summary process or otherwise,
             and expel the Lessee and remove all personal property
             therefrom and re-let the premises at the best rent
             obtainable. . . .

      Property tax notifications and bills were mailed to CHME (which was obligated

to pay property taxes, in full, under the sublease), and HOM appears to have relied

on CHME to make all necessary payments. While the subject of considerable dispute

on appeal, it appears that RME, HOM, and their predecessors never gave much, if

any, attention to when the property taxes were being paid before 2013.

      On 23 October 2013, however, RME’s attorney, Jonathan Ganz, sent a letter to

defendants alleging that they had breached the lease by failing to pay property taxes

on or before September 1st in each of the preceding four years. The letter stated that

RME had just recently become aware of these circumstances, and further asserted

that “[i]n Orange County, real property tax bills for a calendar year are due on

September 1 of that year.” HOM responded, through its attorney, by sending a letter

to RME, asserting that the lease did not require the tenant to pay taxes by September



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1st of any fiscal year. Despite the parties’ contrary positions on the issue of exactly

when property tax payments were to be made, RME took no further action at that

time, as Mr. Ganz’s letter failed to comply with the technical requirements of the

lease’s notice and default provisions.

      There was no dispute in 2014 as to when the property taxes had to be paid, as

CHME appealed the property’s valuation, thereby tolling the date on which the taxes

were “due” under the lease. However, the 2015 tax bill for the property was issued

in July 2015 and defendants did not pay the taxes by 1 September 2015. As a result,

on 21 September 2015, RME sent HOM a notice of default “for failure to pay all taxes

as required pursuant to the lease.” HOM responded as follows in a letter dated 16

October 2016:

             This letter is sent in response to your letter dated
             September 21, 2015 which wrongfully alleges a default
             under the Lease. We specifically deny that a default exists
             for failure to pay all taxes as required under the Lease.

             Pursuant to N.C.G.S. § 105-360, 2015 real property taxes
             are payable without interest through January 5, 2016.
             Real property taxes are not delinquent, and interest does
             not begin to accrue until January 6, 2016. As such, there
             exists no delinquency in the payment of real property taxes
             and no default under the terms of the Lease.

For whatever reason, defendants chose not to pay the property tax bill immediately,

an action that would have cured the alleged default. Consequently, RME sent HOM

a written notice that the lease had been terminated and instructed HOM and CHME



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to vacate the premises.

      The notice of termination was dated 27 October 2015, the same day that RME

filed a summary ejectment action against defendants in the Small Claims Division of

Orange County District Court. RME paid the taxes on the morning of 3 November

2015. Later that same day, Federal Express delivered a tax payment from CHME to

the Orange County Tax Administrator’s Revenue Division. Thereafter, HOM tried to

tender the amount of the 2015 tax payment to RME on two occasions, but RME

refused to accept reimbursement.

      The complaint seeking summary ejectment was dismissed by an Orange

County Magistrate on 10 November 2015. RME noted an appeal to Orange County

District Court on 18 November 2015, and also filed a motion for summary judgment.

After conducting a hearing on the matter, the trial court denied RME’s motion for

summary judgment and granted summary judgment in favor of defendants. The trial

court’s order held:

             Here, the course of dealing clearly shows that the parties
             historically did not construe the lease to require that the
             taxes be paid by midnight on September 1 each year; they
             understood the terms “pay” and “pay when due” to have
             been used in their ordinary sense, rather than within the
             technical, literal definitional requirements of N.C. Gen.
             Stat. § 105-360.

             The ordinary meaning of “pay” and “pay when due”
             customarily includes an implicit grace period during which
             payment can be made without being overdue; few
             obligations, and certainly not property taxes, are expected


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             to be paid on the very first day they become due.

             The taxes were paid during the implicit grace period which
             the lease afforded, given the ordinary meaning of the terms
             used, and in light of the course of dealing.

             Accordingly, there is no genuine issue as to any material
             fact, Defendants are entitled to judgment as a matter of
             law, Plaintiff's motion for summary should be denied, and
             summary judgment should be entered for Defendants[.]

RME appeals.

                                     II. Analysis

      RME’s principal arguments on appeal are that the trial court erred in denying

its summary judgment motion and in granting summary judgment in favor of

defendants. We disagree.

      A. Standard of Review

      “Our standard of review of an appeal from summary judgment is de novo; such

judgment is appropriate only when the record shows 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.’ ” In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting

Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). “In ruling on a motion

for summary judgment the evidence is viewed in the light most favorable to the non-

moving party.” Hinson v. Hinson, 80 N.C. App. 561, 563, 343 S.E.2d 266, 268 (1986)

(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


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through discovery that 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.” Draughon v. Harnett Cty. Bd. of Educ., 158 N.C. App. 705, 708,

582 S.E.2d 343, 345 (2003) (citation and internal quotation marks omitted). “A trial

court may enter summary judgment in a contract dispute if the provision at issue is

not ambiguous and there are no issues of material fact.” Malone v. Barnette, __ N.C.

App. __, __, 772 S.E.2d 256, 259 (2015) (citing Metcalf v. Black Dog Realty, LLC, 200

N.C. App. 619, 633, 684 S.E.2d 709, 719 (2009) (“[W]hen the language of a contract is

not ambiguous, no factual issue appears and only a question of law which is

appropriate for summary judgment is presented to the court.”), and other citation

omitted). Furthermore, if a grant of “summary judgment can be sustained on any

grounds, it should be affirmed on appeal.” Shore v. Brown, 324 N.C. 427, 428, 378

S.E.2d 778, 779 (1989).

      B. “When Due”

      RME argues that the trial court improperly denied its motion for summary

judgment on the summary ejectment claim and that that the court erred in granting

summary judgment in favor of defendants. More specifically, RME contends that

Paragraph 19 of the lease, which states that taxes must be paid “when due,” required

defendants to pay the taxes immediately on 1 September 2015. RME’s argument, as

we understand it, is that because tax payments became “due” under N.C. Gen. Stat.



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§ 105-360 on September 1st, any payment made after that date was late, or “past

due,” such that RME was entitled to send a notice of default and terminate the lease.

In contrast, defendants argue that because the taxes first became due on September

1st and were not delinquent until January 6th, the taxes were “due,” i.e., payable, at

any time from September 1st to January 5th (of the following year). We agree with

defendants.

      “A lease is a contract which contains both property rights and contractual

rights.” Strader v. Sunstates Corp., 129 N.C. App. 562, 570, 500 S.E.2d 752, 756

(citation omitted), disc. review denied, 349 N.C. 240, 514 S.E.2d 274 (1998). The

provisions of a lease are, therefore, interpreted according to general principles of

contract law. Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 354, 396 S.E.2d

327, 330 (1990).

      “Interpreting a contract requires the court to examine the language of the

contract itself for indications of the parties’ intent at the moment of execution.” State

v. Philip Morris USA, Inc., 359 N.C. 763, 773, 618 S.E.2d 219, 225 (2005) (citing Lane

v. Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624 (1973)). “If the plain

language of a contract is clear, the intention of the parties is inferred from the words

of the contract.” Walton v. City of Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411

(1996) (citation omitted). “When the language of a contract is plain and unambiguous

then construction of the agreement is a matter of law for the court.” Whirlpool Corp.



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v. Dailey Constr., Inc., 110 N.C. App. 468, 471, 429 S.E.2d 748, 751 (1993). In such a

case, “ ‘the court may not ignore or delete any of [the contract’s] provisions, nor insert

words into it, but must construe the contract as written, in the light of the undisputed

evidence as to the custom, usage, and meaning of its terms.’ ” Hemric v. Groce, 169

N.C. App. 69, 76, 609 S.E.2d 276, 282 (quoting Martin v. Martin, 26 N.C. App. 506,

508, 216 S.E.2d 456, 457-58 (1975)), cert. denied, 359 N.C. 631, 616 S.E.2d 234 (2005).

      If the contract’s terms are ambiguous, however, “then resort to extrinsic

evidence is necessary and the question is one for the jury.” Whirlpool Corp., 110 N.C.

App. at 471, 429 S.E.2d at 751 (citation omitted). Even so, “ambiguity . . . is not

established by the mere fact that [one party] makes a claim based upon a construction

of its language which the [other party] asserts is not its meaning.” Wachovia Bank

& Trust Co. v. Westchester Fire Ins. Co., 276 N.C. 348, 354, 172 S.E.2d 518, 522 (1970).

Instead, “[a]n ambiguity exists where the language of a contract is fairly and

reasonably susceptible to either of the constructions asserted by the parties.”

Holshouser v. Shaner Hotel Grp. Props. One Ltd. P’ship, 134 N.C. App. 391, 397, 518

S.E.2d 17, 23 (1999), aff’d per curiam, 351 N.C. 330, 524 S.E.2d 568 (2000) (citations

and internal quotation marks omitted).

      An additional principle of contract construction is that “parties are generally

presumed to take into account all existing laws when entering into a contract.” Wise

v. Harrington Grove Cmty. Ass’n, 357 N.C. 396, 406, 584 S.E.2d 731, 739 (2003)



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(citation omitted). “When the language of a statute is clear and without ambiguity,

‘there is no room for judicial construction,’ and the statute must be given effect in

accordance with its plain and definite meaning.” AVCO Fin. Servs. v. Isbell, 67 N.C.

App. 341, 343, 312 S.E.2d 707, 708 (1984) (citation omitted). Mindful that our central

task is to interpret the parties’ intent “at the moment of [the lease’s] execution,”

Philip Morris USA, Inc., 359 N.C. at 773, 618 S.E.2d at 225, we first note that the

relevant statute—in terms of intent—is the one that was in effect in 1966, N.C. Gen.

Stat. § 105-345 (1965).1 However, there is no material difference between the 1965-

version of section 105-345 and its successor, N.C. Gen. Stat. § 105-360(a) (2015),

which provides:

               Taxes levied under this Subchapter by a taxing unit are
               due and payable on September 1 of the fiscal year for which
               the taxes are levied. Taxes are payable at par or face
               amount if paid before January 6 following the due date.
               Taxes paid on or after January 6 following the due date are
               subject to interest charges. Interest accrues on taxes paid
               on or after January 6 as follows. . . .

(emphasis added). Therefore, we base our analysis, as have the parties, on the

language contained in section 105-360. Here, we must interpret the phrase “when

due” in relation to defendants’ obligation to pay property taxes under Paragraph 19

of the lease and section 105-360. More precisely, the issue presented is whether a


       1 Section 105-345 provided that all property taxes were “due and payable on the first Monday
of October in which they [were] . . . assessed or levied.” It also provided that if tax payments were
made in cash “[a]fter the first day of November and on or before the first day of February next after
due and payable, the tax shall be paid at par or face value.” N.C. Gen. Stat. § 105-345(2) (1965).

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lessee fails to perform its obligation when property taxes are not paid at the moment

they become due when a lease requires the lessee to pay taxes “when due.” No

appellate decisions in North Carolina have addressed this exact question, but the

Court of Appeals of Michigan has confronted the issue.

      In Roseborough v. Empire of America, the plaintiffs claimed that the defendant

bank had failed to pay the real estate taxes in a timely manner, as required by the

parties’ mortgage agreement. 168 Mich. App. 92, 93, 423 N.W.2d 578, 579 (1987) (per

curiam). The plaintiffs contended that the bank’s agreement to pay the taxes “when

due” required payment of the 1984 taxes on 1 December 1984, the date on which

property tax collection commenced and the amounts assessed became a lien on the

property. Id. at 95, 423 N.W.2d at 579. As a result, the Roseborough Court had to

interpret the mortgage contract language “when due” in relation to the obligation to

pay property taxes under the law. Id. The Court held that “when due” meant when

payable, which under Michigan law was a period commencing December 1st and

ending at the point that the tax bill became delinquent on the following February

15th. Id. at 95-96, 423 N.W.2d at 579. Accordingly, the taxes were “due,” in the sense

of being payable, at any time between December 1st and February 15th, not just on

December 1st.

      Although clearly not controlling, we find the reasoning in Roseborough

compelling, and we apply it to the circumstances of this case. The effect of the



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interpretation that RME urges us to adopt is as follows: the lease required defendant

to pay the taxes at the moment they first became “due.” Under this interpretation,

defendants could only meet their obligation by paying the property taxes on, and only

on, September 1st. In other words, any payment before September 1st would be

“early,” any payment on September 1st would be “when due,” and any payment after

September 1st would be late, or past the point “when” the payments were “due.” This

is a nonsensical, hyper-technical construction of the lease and North Carolina

property tax law.

      Indeed, after noting that the first sentence of section 105-360 provides that

property taxes are “due and payable on September 1,” and that the second sentence

provides that property taxes are “payable” without interest “if paid before January 6

following the due date,” RME argues that “[d]efendants’ statement that taxes are ‘due

and payable through January 5’ inserts the phrase ‘and payable’ into the second

sentence of the statute.” But there is no meaningful distinction between the terms

due and payable. As recognized by one of America’s leading legal lexicographers,

“[b]ecause a debt cannot be due without also being payable, the doublet due and

payable is unnecessary in place of due.” Bryan A. Gardner, A Dictionary of Modern

Legal Usage 299 (2d ed. 1995). Just because taxes first become due on September 1st

does not mean that they become past due on the following day. Instead, property

taxes in North Carolina are “due” (i.e., payable) over a period of time (September 1st



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through the following January 5th) and not on any single date. The use of the phrase

“when due,” without qualifying language, must be given its plain meaning, and its

plain meaning is, when applied to section 105-360, the period of time between the

first and last dates for timely payment of those taxes (September 1st and January

5th, respectively). As noted in Roseborough, “Plaintiffs’ argument would have more

force if the . . . agreement contained qualifying language such as ‘when first become

due’ or ‘at the moment taxes become due.’ ” 168 Mich. App. at 95-96, 423 N.W.2d at

579.   Such qualifying language is absent from the lease in the instant case.

Accordingly, we reject RME’s interpretation of the phrase “when due” as it relates to

HOM’s obligation to pay property taxes under the lease.

       Application of section 105-360 to the lease’s terms reveals that taxes on the

property first become due on September 1st, but they do not become past due or

delinquent until the following January 6th. Because the plain meaning of “when due”

refers to the period running from September 1st to January 5th, we conclude that

Paragraph 19 of the lease is not ambiguous. When RME sent notice of termination

in October 2015 and paid the property taxes in November 2015, RME deprived HOM

of the opportunity to meet its obligation to pay (or direct CHME to pay) the taxes on

or before 5 January 2016. The trial court, therefore, properly concluded that no

genuine issue of material fact remained, that RME’s motion for summary judgment

should be denied, and that summary judgment should be entered in favor of



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defendants. As our decision results solely from our interpretation of Paragraph 19’s

plain language, we need not address whether the trial court properly considered

evidence of the parties’ prior course of dealing. See Shore, 324 N.C. at 428, 378 S.E.2d

at 779 (“If the granting of summary judgment can be sustained on any grounds, it

should be affirmed on appeal. If the correct result has been reached, the judgment

will not be disturbed even though the trial court may not have assigned the correct

reason for the judgment entered.”).

                                  III. Conclusion

      For the reasons stated above, we affirm the trial court’s order denying RME’s

motion for summary judgment and granting summary judgment in favor of

defendants.

      AFFIRMED.

      Judges STROUD and McCULLOUGH concur.




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