CB&H Business Services, L.L.C. v. J.T. Comer Consulting, Inc.

646 S.E.2d 843, 184 N.C. App. 720, 2007 N.C. App. LEXIS 1623
CourtCourt of Appeals of North Carolina
DecidedJuly 17, 2007
DocketCOA06-1383
StatusPublished
Cited by4 cases

This text of 646 S.E.2d 843 (CB&H Business Services, L.L.C. v. J.T. Comer Consulting, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CB&H Business Services, L.L.C. v. J.T. Comer Consulting, Inc., 646 S.E.2d 843, 184 N.C. App. 720, 2007 N.C. App. LEXIS 1623 (N.C. Ct. App. 2007).

Opinions

STEELMAN, Judge.

The presence of quotation marks around a phrase in a contract does not require a court to construe the phrase in a technical sense. The trial court erroneously granted summary judgment for defendants in this matter.

Background

The facts in this matter are not in dispute. On 14 December 2001, CB&H Business Services,' L.L.C. (“plaintiff’), and J.T. Comer Consulting, Inc. (“Comer”), entered into an Asset Purchase [721]*721Agreement (“agreement”). The agreement provided for plaintiff to sell to Comer its pension administration division, CB&H Employee Benefits Group, in exchange for $400,000.00. The term “CB&H” refers to the accounting firm Cherry, Bekaert and Holland, LLP, which joined in the agreement for the sole purpose of agreeing not to compete with Comer for a period of five years. Two sections of the agreement referenced Comer’s use of the name CB&H:

2.6 Goodwill. The goodwill associated with the Business, the exclusive right of Buyer to represent itself as carrying on the Business previously conducted by Seller, except as otherwise agreed herein, the right for one (1) year following closing to use the names CB&H Employee Benefits Group and CB&H Pension Services, Inc. owned by seller. . . .
13.2 Successors and Assigns. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by a •party without the written consent of the other party. Subject to the foregoing, the provisions hereof shall inure to the benefit of, and be binding upon, the successors, permitted assigns, heirs, executors and administrators of the parties hereto. Provided, however, Buyer is hereby authorized to assign its rights under this contract to an affiliate which is in the process of being formed under the name of CB&H Pension Services, Inc. so long as the name of this corporation is changed one (1) year following Closing to remove “CB&H” from its name.

On or about 11 December 2001, CB&H Pension Services, Inc., a new North Carolina corporation, was formed by filing of articles of incorporation with the Secretary of State. Comer assigned its rights under the agreement to the new corporation. By letter dated 13 August 2002, the North Carolina CB&H Pension Services, Inc., submitted to plaintiff its new logo and proposed name of “CBH Pensions” (with no ampersand). The letter stated “Please advise that the change is acceptable under our CB&H contract.” On 28 August 2002, plaintiff wrote to counsel for Comer and the North Carolina CB&H Pension Services, Inc. (together, hereinafter “defendants”), and advised “we do not believe that the elimination of the ampersand sign, retaining CBH is in the spirit of our agreement per Section 13.2.” By subsequent letter, plaintiff advised defendants that plaintiffs former clients were confused as to whether plaintiff was still handling their accounts. Under the terms of the agreement defendants were required to remove “CB&H” from the name of the North Carolina CB&H Pension [722]*722Services, Inc., by 14 December 2002. On 5 February 2003, the name of the North Carolina CB&H Pension Services, Inc., was changed to CBH Pensions, Inc.

On 30 November 2005, plaintiff filed a complaint against Comer and its assignee CBH Pensions, Inc., seeking: (1) specific performance of the terms of the agreement; (2) a declaratory judgment that defendants breached the agreement and should be required to remove any reference to CBH or any variation from their corporate name; (3) costs; (4) attorney fees; and (5) interest. Plaintiff asserted no claim for monetary damages. On 7 June 2006, defendants filed a motion for summary judgment. On 30 June 2006, plaintiff filed a motion for summary judgment. On 25 July 2006, the trial court granted defendants’ motion for summary judgment and dismissed plaintiffs complaint with prejudice. Plaintiff appeals.

Analysis

In its sole argument on appeal, plaintiff contends that the trial court erroneously denied its motion for summary judgment. We agree.

Summary judgment, is proper when “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) (2005). “On appeal, an order allowing summary judgment is reviewed de novo.” Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004).

Contracts must be interpreted according to their entirety or “four corners.” Stephens Co. v. Lisk, 240 N.C. 289, 293, 82 S.E.2d 99, 102 (1954) (internal citation omitted). “It is well settled that where the language of a contract is plain and unambiguous, it is for the court and not the jury to declare its meaning and effect.” Lowe v. Jackson, 263 N.C. 634, 636, 140 S.E.2d 1, 2 (1965). “The heart of a contract is the intention of the parties, which is to be ascertained from the expressions used, the subject matter, the end in view, the purpose sought, and the situation of the parties at the time.” Gould Morris Electric Co. v. Atlantic Fire Insurance Co., 229 N.C. 518, 520, 50 S.E.2d 295, 297 (1948). “[P]unctuation or the absence of punctuation in a contract is ineffectual to control its construction as against the plain meaning of the language.” Huffman v. Occidental Life Ins. Co., 264 N.C. 335, 337-38, 141 S.E.2d 496, 498 (1965); see also 17A Am. [723]*723Jur. 2d Contracts § 366 (2006).

Defendants assert that because the term “CB&H” is surrounded by quotation marks in section 13.2 of the agreement that this requires that we give it a technical meaning. They argue that any modification of the term “CB&H” changes the term, and that the removal of the ampersand complies with the agreement. In support of this argument, defendants cite the case of Rawls v. Rideout, 74 N.C. App. 368, 328 S.E.2d 783 (1985), for the concept that: “Generally words set off in quotation marks should be given their technical meanings.” We have thoroughly reviewed the Rawls case and can find no such holding, either express or implied, in that opinion. Rawls does discuss punctuation, but discusses parentheses, and not quotation marks. It holds that “parentheses are used to set off supplementary or illustrative material; they ‘tend to minimize the importance of the elements they enclose.’ ” Id. at 372, 328 S.E.2d at 786 (internal citation omitted). We find this holding to be inapplicable to the issues presented in the instant case.

A review of the entire agreement in the case sub judice reveals that Comer or its assigns could use the names “CB&H Employee Benefits Group” and “CB&H Pension Services, Inc.,” for a period of one year following 14 December 2001. The clear purpose of this provision was to allow Comer to transition the business from plaintiff to itself.

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CB&H Business Services, L.L.C. v. J.T. Comer Consulting, Inc.
646 S.E.2d 843 (Court of Appeals of North Carolina, 2007)

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Bluebook (online)
646 S.E.2d 843, 184 N.C. App. 720, 2007 N.C. App. LEXIS 1623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cbh-business-services-llc-v-jt-comer-consulting-inc-ncctapp-2007.