An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1422
                       NORTH CAROLINA COURT OF APPEALS

                               Filed: 17 June 2014


PROMENADE AT SURF CITY, LLC and
SHOPPES AT THE PROMENADE, LLC,

      Plaintiffs,

      v.                                      Pender County
                                              No. 12 CVS 231
NIKKIS ON TOPSAIL ISLAND, INC. and
JIAN CHEN,

      Defendants.


      Appeal by defendants from order and judgment entered 19

June 2013 by Judge Phyllis M. Gorham in Pender County Superior

Court.     Heard in the Court of Appeals 22 April 2014.


      Murchison, Taylor & Gibson, PLLC, by Andrew K. McVey, for
      plaintiff-appellees.

      Ray C. Blackburn, Jr., for defendant-appellants.


      STEELMAN, Judge.


      Where the trial court’s evidentiary findings of fact are

not contested on appeal, are binding upon appeal, and supported

the trial court’s conclusions of law, the trial court did not

err in its Order and Judgment.
                                             -2-




                    I. Factual and Procedural Background

       On 10 June 2010, Nikki’s on Topsail Island, Inc. (Nikki’s),

an    entity     organized   by       Jian   Chen    (collectively,         defendants),

signed a letter of intent with Shoppes at the Promenade, LLC,

the     successor-in-title            to     Promenade       at      Surf    City,     LLC

(collectively, plaintiffs).                  The letter indicated defendants’

desire      to   enter    into    a    ten-year      lease     for    an    area    within

plaintiffs’ proposed development.                   The parties signed the lease

on 23 September 2010.            Jian Chen guaranteed the lease under the

alias Andy Chen.          The lease was contingent upon the development

achieving a 70% occupancy rate.                On 28 December 2011, defendants

notified plaintiffs that they wished to terminate the lease.

       On   12    March   2012,       plaintiffs     filed     a   complaint       seeking

monetary damages and attorney’s fees from defendants based upon

Nikki’s      anticipatory        repudiation        of   the       lease    and    Chen’s

guarantee of the lease.               On 14 November 2012, defendants filed

an amended answer and counterclaim, denying plaintiffs’ right to

recover damages and raising a number of affirmative defenses.

Nikki’s also counterclaimed against plaintiffs, seeking monetary

damages for plaintiffs’ breach of contract.                            On 21 November
                                              -3-
2012,    plaintiffs       filed    a    reply       to    the    amended         counterclaim,

denying    Nikki’s        right    to    recover          and    raising         a    number      of

affirmative defenses.

    On 7 January 2013, Judge Alford entered an order granting

summary        judgment    in     favor       of        plaintiffs          on       “Defendants’

contention       in   their     Counterclaim            that    Plaintiffs            represented

that a bowling alley, movie theater, and laser tag facility

would     be     among    the     shopping          center       facilities”           and      that

“Plaintiffs       breached      the     lease      in    failing       to    construct          such

amenities[.]”         Defendants did not appeal from this order.                                  The

remaining       issues    between       the     parties         were   heard          at    the   28

January 2013 session of Superior Court, before Judge Gorham,

sitting without a jury.

    On 19 June 2013, Judge Gorham’s Order and Judgment was

filed.     It provided that “Defendants are to take possession of

the leased property and pay Plaintiffs' attorney's fees in the

amount    of     $84,955.00[,]”         and     if       defendants         failed         to   take

possession of the property within 60 days, that plaintiffs would

recover damages from defendants, jointly and severally, in the

amount of $566,370.

    On 17 July 2013, defendants appealed from Judge Gorham’s

order.
                                      -4-
                         II. Standard of Review

       “The standard of review on appeal from a judgment entered

after a non-jury trial is ‘whether there is competent evidence

to support the trial court’s findings of fact and whether the

findings support the conclusions of law and ensuing judgment.’”

Cartin v. Harrison, 151 N.C. App. 697, 699, 567 S.E.2d 174, 176

(quoting Sessler v. Marsh, 144 N.C. App. 623, 628, 551 S.E.2d

160, 163 (2001)), disc. review denied, 356 N.C. 434, 572 S.E.2d

428 (2002).

             III. Findings of Fact and Conclusions of Law

       Defendants contend that the trial court erred in concluding

that   Nikki’s   breached     the   lease,   in   concluding     that   Nikki’s

repudiated the lease, in failing to conclude that plaintiffs

repudiated    the    lease,    and    in     concluding   that     Jian   Chen

guaranteed the lease.       We disagree.

       First, defendants contend that the trial court erred in

concluding    that   Nikki’s    repudiated     the   lease,   in   failing   to

conclude that plaintiffs repudiated the lease, and in concluding

that Nikki’s breached the lease.1              “Breach of contract is a



1
  We note that the trial court’s opinion grouped findings of fact
and conclusions of law under a single heading. “Where ‘findings
of fact’ should have been ‘more properly designated conclusions
of law[,]’ this Court will ‘treat them as such for the purposes
of ... appeal.’ Sheffer v. Rardin, 208 N.C. App. 620, 624, 704
                                -5-
conclusion of law reviewable by this Court.”   Long v. Long, 160

N.C. App. 664, 670, 588 S.E.2d 1, 5 (2003).

    In support of its conclusion that Nikki’s repudiated the

lease, the trial court found:

         16. The     Landlord   sent    Nikki's   an
         anticipated timeline for construction which
         included a request that Defendants provide
         their architectural drawings for use in the
         construction.   Those  drawings   were  not
         forthcoming.

         17. In the interest of attempting to speed
         up the development timeline and delivering
         space to Nikki's, the Landlord offered to
         amend the Lease to move       Nikki's from
         Outparcel G of the development to Outparcel
         D.

         18. Some    time   later,   Chen   showed  up
         unannounced at the office of Mo Afify and
         communicated on behalf of Nikki's that
         Defendants were disappointed that a new
         Chinese buffet retail tenant had taken
         occupancy in the development located across
         the street from the proposed Promenade at
         Surf City development. In the same meeting,
         Chen communicated that Nikki's did not want
         to move to Outparcel D and instead wanted to
         remain on Outparcel G. Notably, the Landlord
         reconfigured the footprint of the building
         to be constructed on Outparcel G at the
         urging of Chen, essentially rotating the
         footprint 45 degrees. Chen requested this
         change   to  maximize   the   visibility  and
         traffic to the new Nikki's location from
         both Highways 50 and 210.


S.E.2d 32, 35 (2010) (citation omitted).       We will   therefore
recharacterize the trial court’s findings of fact        as being
either findings of fact or conclusions of law.
                                    -6-


            19. The following day, Nikki's real estate
            agent again related that Nikki's wanted to
            remain on Outparcel G "even if takes Mo
            longer to deliver."

            20. Subsequently, in late July, 2011, the
            parties had discussions regarding a proposed
            amendment to the Lease which would have
            allowed Nikki's to take occupancy of a
            smaller space on Outparcel G, and would have
            restricted the Landlord from leasing space
            to     other    hibachi-style      restaurants
            throughout the entire development.

            . . .

            22. On November 29, 2011, the Landlord
            notified Nikki's that it intended to begin
            construction the following week and again
            requested Nikki's architectural drawings.

            . . .

            24. Again, the architectural drawings were
            not forthcoming from Defendants.

            25. Then, on December 28, 2011, Defendants
            notified the Landlord that they would not
            execute the amendment to the Lease and
            wanted to terminate the Lease because sales
            at another Surf City restaurant owned by
            Chen were "way off."

            26. The Landlord is ready, willing, and able
            to perform its obligations under the Lease
            Agreement.

      On appeal, these findings are not challenged by defendants,

and   are   therefore   binding   upon    this   Court.   See   Koufman   v.

Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).                These
                                                -7-
findings show that plaintiffs were willing to proceed under the

terms    of    the     lease,      and    that     it    was       Nikki’s        conduct       which

brought about the termination of the lease.                                These findings in

turn     support       the    trial        court’s          conclusions           that        Nikki’s

repudiated the lease, and that this conduct constituted a breach

of the lease agreement.                   Further, the trial court found that

plaintiffs      were     “ready,         willing      and    able     to     perform          [their]

obligations      under       the     Lease      Agreement.”                This     unchallenged

finding established that plaintiffs did not repudiate the lease.

       Next,    defendants           argue      that    the        trial    court        erred    in

concluding that Jian Chen personally guaranteed the lease.                                        The

original      complaint      listed        “Andy       Chen”   as     a     defendant.            The

guarantee       of     the   lease        was     signed       by     “Andy        Chen.”          By

stipulation of all of the parties, plaintiffs were allowed to

change    the    caption        of    their      complaint          and     names        in    their

complaint.       One of the stipulated changes was “to replace all

references      to   Defendant        ‘Andy     Chen’       with    his     legal    name       ‘Jian

Chen[.]’”        The    order      allowing      this       stipulation       was     signed       by

counsel for all parties.

       “Pretrial stipulations duly entered into by the parties are

binding upon them.”             City of Durham v. Lyckan Dev. Corp., 26

N.C. App. 210, 219, 215 S.E.2d 814, 820 (1975).                               By signing that

stipulation, defendants conceded that Jian Chen and Andy Chen were
                                -8-
the same person.   Defendants cannot now, on appeal, claim that Jian

Chen and Andy Chen are different persons.      We hold that the trial

court did not err in finding that Jian Chen was the same person as

Andy Chen, and that he guaranteed the lease.

     This argument is without merit.

     AFFIRMED.

     Judges HUNTER, Robert C., and BRYANT concur.

     Report per Rule 30(e).
