IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-289

No. COA21-452

Filed 3 May 2022

Gaston County, No. 19CVS709

JAMES A. JOHNSTON and PHYLLIS M. JOHNSTON, Plaintiffs,

v.

TIMOTHY PYKA and JANICE PYKA, Defendants.

Appeal by plaintiffs from order entered 21 March 2021 by Judge Gregory R. 

Hayes in Gaston County Superior Court. Heard in the Court of Appeals 11 January 

2022.

John M. Kirby for plaintiffs-appellants.

Thomas B. Kakassy for defendants-appellees.

GORE, Judge.

¶ 1 This matter concerns a contractual dispute over the sale of real property and 

several landlord/tenant claims. We affirm in part; reverse in part, and remand for 

further proceedings not inconsistent with this opinion. 

I. Factual and Procedural Background

¶ 2 Defendants, Timothy and Janice Pyka, are the owners of a house and lot in 

Belmont, North Carolina. This house was their former residence, and they made it 

available for rental in 2013. In their efforts to rent the property out, defendants 
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contracted with Leslie Dale of Re/Max Realty. Defendants relied upon Ms. Dale to 

find suitable tenants for the property. 

¶ 3 At the recommendation of Ms. Dale, defendants entered into a residential 

rental agreement with plaintiffs James and Phyllis Johnston on 5 December 2013 for 

the period 5 December 2013 to 31 December 2014. The parties contracted to extend 

this lease by written agreement on 22 February 2015, for the period 1 January 2015 

until 31 January 2016. On 13 January 2016, the parties contracted for another 

extension of the lease for the period 1 February 2016 to 31 January 2018. Defendants 

later discovered that Ms. Dale is the sister of plaintiff James Johnston.

¶ 4 In early 2018, plaintiffs inquired about purchasing the home from defendants. 

Without defendants’ knowledge or authorization, Ms. Dale drafted a purported 

extension of the lease until December 2020. This document was not signed by 

defendants nor seen by them until after this lawsuit had commenced.

¶ 5 On 2 March 2018, defendants sent plaintiffs a registered letter, confirming 

their understanding that plaintiffs were not interested in buying the home and 

asking that they vacate by 2 April 2018. On 6 April 2018, defendants emailed 

plaintiffs and indicated: an acknowledgement of the month-to-month rental status, 

to be extended only until 1 June 2018; that the most recent payment was short by 

$200.00; and that, if plaintiffs were serious in their expressed desire to buy the house, 

defendants were still willing to sell.
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¶ 6 In April 2018, the parties executed a Contract for Purchase of defendants’ 

home. The due diligence period began on 12 April 2018 and extended through 5:00 

p.m. on 16 May 2018. Plaintiffs alleged that on or about 15 April 2018, a severe 

thunderstorm impacted the Belmont, North Carolina region, and the thunderstorm 

produced hailstones that substantially damaged the property’s roof and caused water 

intrusion issues. On or about 1 May 2018, plaintiffs notified defendants about the 

storm damage and requested that defendants repair the property.

¶ 7 On or about 8 June 2018, plaintiffs arranged for CSH Inspections to inspect 

the property, including the hail damage. CSH Inspections prepared a report that 

detailed their findings. The report noted that water intrusion had taken place. 

Defendants alerted their insurance company to the claims of plaintiffs, in addition to 

notifying an independent roofing company, neither of which found any significant 

hail damage or other significant damage.

¶ 8 On 18 July 2018, defendants received a letter from plaintiffs that alleged the 

roof damage triggered “a breach of the existing agreement,” and instead of offering to 

“proceed to closing,” threated a lawsuit. Plaintiffs alleged that, as of 23 May 2018, 

they had performed all conditions precedent and fulfilled all obligations under the 

Offer to Purchase and Contract, and were ready, willing, and able to complete the 

transaction. Defendants contend that plaintiffs have refused to complete the 

transaction and failed to demonstrate that they had the financing, ability, or 
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inclination to ever complete the transaction, despite requests from their attorney for 

proof of financing.

¶ 9 On 19 February 2019, plaintiffs filed a Complaint that alleged breach of 

contract, breach of warranty of habitability, unfair and deceptive trade practices, and 

sought damages and specific performance of the parties’ contract for sale of real 

property.

¶ 10 Defendants filed an Answer and Counterclaims on 11 June 2019. Defendants 

filed counterclaims for tortious interference with contract, fraud, and summary 

ejectment. Defendants’ contractual counterclaims were based on an assertion that 

plaintiffs’ action was frivolous and had caused defendants to lose money from the sale 

of the house to other potential purchasers.

¶ 11 The fraud claim was based on an allegation that plaintiffs had represented 

that the house sustained hail damage. The summary ejectment claim alleged that 

plaintiffs were tenants at will or trespassers and should be ordered to vacate the 

premises. Defendants also filed a Third-Party Complaint against Ms. Dale that they 

later settled.

¶ 12 Following the filing of pleadings and during the pendency of this action, and 

up until December 2020, plaintiffs paid a monthly amount of rent, $200.00 short of 

the amount requested by defendants, and defendants have taken that money. On 14 

December 2020, defendants refused additional payments and demanded once again 
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that plaintiffs vacate the premises. Defendants have accepted no rent since the last 

payment of plaintiffs on 1 December 2020.

¶ 13 Defendants filed a Motion for Partial Summary Judgment on the issue of 

liability, and plaintiffs filed a Motion for Summary Judgment. On 23 March 2021, 

the trial court granted defendants’ Motion for Partial Summary Judgment on liability 

and denied plaintiffs’ Motion. The trial court reserved the matter of damages owed 

to defendants for later determination. The trial court dismissed plaintiffs’ claims and 

further ordered plaintiffs to vacate the premises within 30 days. On 15 April 2021, 

plaintiffs filed written notice of appeal to this Court.

II. Interlocutory Appeal

¶ 14 We must first address whether plaintiffs’ appeal is premature and subject to 

dismissal.

¶ 15 In this case, the trial court determined that defendants are entitled to 

summary judgment on their claims. It entered an Order granting defendant’s Motion 

for Partial Summary Judgment on the issue of liability while reserving the matter of 

damages for later determination. It also denied plaintiffs’ Motion for Summary 

Judgment and Motion for Injunctive Relief, dismissing plaintiffs’ claims in their 

entirety.

¶ 16 “An order or judgment is interlocutory if it is made during the pendency of an 

action and does not dispose of the case but requires further action by the trial court 
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in order to finally determine the entire controversy.” N.C. Dep’t of Transp. v. Page, 

119 N.C. App. 730, 733, 460 S.E.2d 332, 334 (1995) (citation omitted). “A grant of 

partial summary judgment, because it does not completely dispose of the case, is an 

interlocutory order from which there is ordinarily no right of appeal.” Bartlett v. 

Jacobs, 124 N.C. App. 521, 523-24, 477 S.E.2d 693, 695 (1996) (quotation marks and 

citation omitted). “Ordinarily, an appeal from an interlocutory order will be 

dismissed as fragmentary and premature unless the order affects some substantial 

right and will work injury to appellant if not corrected before appeal from final 

judgment.” Stanback v. Stanback, 287 N.C. 448, 453, 215 S.E.2d 30, 34 (1975)

(citations omitted).

¶ 17 Plaintiffs argue this Court has jurisdiction pursuant to N.C. Gen. Stat. §§ 7A27(b)(3) and 1-277(a), because the trial court’s decision affects a substantial right. 

Specifically, plaintiffs assert their claim for specific performance is intertwined with 

defendants’ pending counterclaims. Plaintiffs contend defendants’ counterclaims are 

based on an argument that plaintiffs were wrongfully in possession of the property, 

and that plaintiffs’ claims prevented defendants from selling the house. On appeal, 

plaintiffs assert they had a right to purchase the property. It is therefore plaintiffs’ 

contention that, without immediate appeal, there is a possibility of inconsistent 

verdicts and multiple trials on the same issues. 

¶ 18 “[T]he right to avoid a trial is generally not a substantial right, but the right 
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to avoid two trials on the same issue may be.” Page, 119 N.C. App. at 735, 460 S.E.2d

at 335 (citation omitted). In determining what constitutes a substantial right, “[i]t is 

usually necessary to resolve the question in each case by considering the particular 

facts of that case and the procedural context in which the order from which appeal is 

sought was entered.” Bernick v. Jurden, 306 N.C. 435, 439, 293 S.E.2d 405, 408

(1982) (purgandum). “Essentially a two-part test has developed—the right itself 

must be substantial and the deprivation of that substantial right must potentially 

work injury to plaintiff if not corrected before appeal from final judgment.” Goldston 

v. Am. Motors Corp., 326 N.C. 723, 726, 392 S.E.2d 735, 736 (1990) (citation omitted). 

“The test is satisfied when overlapping issues of fact between decided claims and 

those remaining create the possibility of inconsistent verdicts from separate trials.” 

CBP Res., Inc. v. Mountaire Farms, Inc., 134 N.C. App. 169, 172, 517 S.E.2d 151, 154 

(1999) (citation omitted).

¶ 19 Here, the trial court resolved the issue of liability as to all claims in this case. 

Where “the only remaining issue is that of damages[,] . . . there is no danger of 

inconsistent verdicts. Therefore, no substantial right will be affected pending the 

trial court’s consideration of the remaining issue.” Id.

¶ 20 Nonetheless, this Court may exercise our supervisory jurisdiction to review a 

nonappealable interlocutory order. N.C. Gen. Stat. § 1-278 provides: “Upon an appeal 

from a judgment, the court may review any intermediate order involving the merits 
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and necessarily affecting the judgment.” “Appellate review pursuant to G.S. § 1-278 

is proper under the following conditions: (1) the appellant must have timely objected 

to the order; (2) the order must be interlocutory and not immediately appealable; and 

(3) the order must have involved the merits and necessarily affected the judgment.” 

Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535 S.E.2d 55, 59 (2000)

(citation omitted). All three conditions must be met. Id. at 642, 535 S.E.2d at 59.

¶ 21 Here, plaintiffs immediately objected to the 23 March 2021 Order by appealing 

it. As previously discussed, an order granting partial summary judgment on the issue 

of liability while reserving the issue of damages for later determination is 

interlocutory and not immediately appealable. Finally, the 23 March 2021 Order

dismissed all of plaintiffs’ claims and resolved the issue of liability for all of 

defendants’ remaining counterclaims. Thus, the Order involved the merits and 

necessarily affected the judgment because it “substantially decided the primary 

issues in contention . . . .” Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. 

App. 748, 758, 758 S.E.2d 169, 176 (2014); see also Gaunt v. Pittaway, 139 N.C. App. 

778, 783, 534 S.E.2d 660, 663 (2000). Therefore, this Court may exercise jurisdiction 

over this appeal pursuant to § 1-278. 

III. Standard of Review

¶ 22 North Carolina Civil Procedure Rule 56(c) allows summary judgment to be 

“rendered on the issue of liability alone although there is genuine issue as to the 
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amount of damages.” “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)

(quotation marks and citation omitted). “Under de novo review, we consider the 

matter anew and freely substitute our own judgment for that of the lower tribunal.” 

Barrow v. D.A.N. Joint Venture Props. of N.C., LLC, 232 N.C. App. 528, 530, 755 

S.E.2d 641, 644 (2014) (purgandum). 

¶ 23 “The moving party has the burden of showing there is no genuine issue of 

material fact and that it is entitled to judgment as a matter of law.” Hyman v. 

Efficiency, Inc., 167 N.C. App. 134, 137-38, 605 S.E.2d 254, 257 (2004) (citation 

omitted). “All inferences are to be drawn against the moving party and in favor of 

the opposing party. Likewise, on appellate review of an order for summary judgment, 

the evidence is considered in the light most favorable to the nonmoving party.” 

Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 

(1999) (quotation marks and citations omitted). 

IV. Breach of Contract

¶ 24 Plaintiffs argue the trial court erred in granting partial summary judgment in 

favor of defendants on plaintiffs’ claim for breach of contract. Specifically, plaintiffs 

contend the trial court misconstrued a critical portion of the Offer to Purchase and 
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Contract for sale of the real property at issue, which expressly allocates risk of loss 

to the seller in the event of damage by fire or other casualty prior to closing. In 

plaintiffs’ estimation, there is a genuine issue of material fact as to whether the roof 

sustained hail damage, and if it did, plaintiffs are entitled to specific performance 

with an adjustment in the sale price for the cost of repairing the roof. We disagree.

¶ 25 “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) (citation 

omitted).

Where the language of a contract is plain and 

unambiguous, the construction of the agreement is a 

matter of law; and the court may not ignore or delete any 

of its provisions, nor insert words into it, but must construe 

the contract as written, in the light of the undisputed 

evidence as to the custom, usage, and meaning of its terms.

Martin v. Martin, 26 N.C. App. 506, 508, 216 S.E.2d 456, 457-58 (1975) (citation 

omitted). “However, it is a fundamental rule of contract construction that the courts 

construe an ambiguous contract in a manner that gives effect to all of its provisions, 

if the court is reasonably able to do so.” McKinnon v. CV Indus., 213 N.C. App. 328, 

334, 713 S.E.2d 495, 500 (2011) (quotation marks and citation omitted).

¶ 26 In our review of the Offer to Purchase and Contract agreement, we note the 

following provisions are relevant to resolving plaintiffs’ risk of loss argument:
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Repair/Improvement Negotiations/Agreement: Buyer 

acknowledges and understands that unless the parties 

agree otherwise, THE PROPERTY IS BEING SOLD IN 

ITS CURRENT CONDITION. Buyer and Seller 

acknowledge and understand that they may, but are not 

required to, engage in negotiations for 

repairs/improvements to the Property. Buyer is advised to 

make any repair/improvement requests in sufficient time 

to allow repair/improvement negotiations to be concluded 

prior to the expiration of the Due Diligence Period. Any 

agreement that the parties may reach with respect to 

repairs/improvements shall be considered an obligation of 

the parties and is an addition to this Contact and as such, 

must be in writing and signed by the parties in accordance 

with Paragraph 20.

. . .

CLOSING SHALL CONSTITUTE ACCEPTANCE OF 

THE PROPERTY IN ITS THEN EXISTING CONDITION 

UNLESS PROVISION IS OTHERWISE MADE IN 

WRITING.

. . .

CONDITION OF PROPERTY AT CLOSING: Buyer’s 

obligation to complete the transaction contemplated by this 

Contract shall be contingent upon the Property being in 

substantially the same or better condition at Closing as on 

the date of this offer, reasonable wear and tear excepted.

RISK OF LOSS: The risk of loss or damage by fire or other 

casualty prior to Closing shall be upon Seller. If the 

improvements on the Property are destroyed or materially 

damaged prior to Closing, Buyer may terminate this 

Contract by written notice delivered to Seller or Seller’s 

agent and the Earnest Money Deposit and any Due 

Diligence Fee shall be refunded to Buyer. In the event 

Buyer does NOT elect to terminate this Contract, Buyer 

shall be entitled to receive, in addition to the Property, any
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of Seller’s insurance proceeds payable on account of the 

damage or destruction applicable to the Property being 

purchased. Seller is advised not to cancel existing 

insurance on the Property until after confirming 

recordation of the deed.

¶ 27 We conclude that the language of the contract is clear and unambiguous. If 

plaintiffs are dissatisfied with their due diligence inspections, or any other matter 

regarding material damage to the condition of the property, they may proceed to 

closing, negotiate repairs, or terminate the contract. If there is material damage to 

the property—and they do not elect to terminate the contract—they have a right to 

receive any of defendants’ insurance proceeds.

¶ 28 Here, any alleged hail damage to the roof of the property is not a genuine issue 

of material fact precluding summary judgment. The record does not show the

existence of any recoverable insurance proceeds, and the parties did not agree upon 

terms for improvement or repair to the property. Plaintiffs were permitted to walk 

away from the transaction if they were not satisfied with the condition of the 

property, and there were no insurance proceeds available to recover. Instead, they 

filed suit to compel specific performance.

¶ 29 The trial court did not err in concluding plaintiffs are not entitled to specific 

performance. “If the language is clear and only one reasonable interpretation exists, 

the courts must enforce the contract as written; they may not, under the guise of 

construing an ambiguous term, rewrite the contract or impose liabilities on the 
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parties not bargained for and found therein.” Hodgin v. Brighton, 196 N.C. App. 126, 

129, 674 S.E.2d 444, 446 (2009) (quotation marks and citations omitted). Partial 

summary judgment in favor of defendants on plaintiffs’ claim for breach of contract 

was appropriate in this case.

V. Implied Warranty of Habitability

¶ 30 Plaintiffs argue the trial court erred in dismissing their claims for breach of 

the implied warranty of habitability. Defendants respond with two arguments: (1) 

no landlord-tenant relationship existed at the time of the hearing; and (2) there is no 

evidence in the record to support plaintiffs’ claim for breach of the implied warranty 

of habitability. We address these arguments as follows.

¶ 31 Pursuant to § 42-42(a)(2), a landlord is required to “[m]ake all repairs and do 

whatever is necessary to put and keep the premises in a fit and habitable condition.” 

Additionally, § 42-42(a)(4) provides that a landlord must:

[m]aintain in good and safe working order and promptly 

repair all electrical, plumbing, sanitary, heating, 

ventilating, air conditioning, and other facilities and 

appliances supplied or required to be supplied by the 

landlord provided that notification of needed repairs is 

made to the landlord in writing by the tenant, except in 

emergency situations.

¶ 32 First, we note that defendants acknowledge plaintiffs were tenants for a period 

immediately preceding the commencement of this action. Defendants stated in their 

affidavit: 
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3. That this house was our former residence, and that we 

made it available for rental in 2013.

. . .

6. That, as the Complaint alleges, and after at least two 

unsuccessful efforts to find suitable renters, we entered 

into a residential rental agreement with the Plaintiffs on 

[5 December 2013], for the period [5 December 2013] to [31 

December 2014].

. . .

8. The Complaint alleges, and we agree, that the written 

rental agreement was extended for another two years, until 

[31 January 2018].

. . .

21. Our understanding is that: the contract for purchase 

in no way entitles the Plaintiffs to be in our house; that the 

purported lease extension, never being executed, was void 

from the beginning, and the date covered by the extension 

has passed; that the Plaintiffs were holdovers at best; and 

that the Plaintiffs have no rights to be in our house.

22. On [14 December 2020], our present attorney, at our 

direction, sent the letter attached to this Affidavit, 

demanding that the Plaintiffs vacate the premises and 

refusing the acceptance of any further rent.

23. To date, the Plaintiffs remain in our house.

24. To date, we have accepted no rent since the last 

payment of the Plaintiffs on [1 December 2020].

¶ 33 This evidence is sufficient to show that, pursuant to a written lease agreement, 

plaintiffs were tenants of defendants until the end of 2018. Despite the absence of a 

valid written lease extension, plaintiffs remained in defendants’ house, and 
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defendants accepted payment of rent through the end of 2020. Thus, a landlordtenant relationship existed for a period preceding the commencement of this action.

¶ 34 Next, defendants contend there is no evidence in the record to support 

plaintiffs’ allegations. We agree.

¶ 35 Under the North Carolina Rules of Civil Procedure, summary judgment will 

only be granted “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.” § 1A-1, Rule 56(c). “By making a motion for summary judgment, a defendant 

may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff 

will be able to make out at least a prima facie case at trial.” Boudreau v. Baughman, 

322 N.C. 331, 342, 368 S.E.2d 849, 858 (1988) (citation omitted). “All inferences of 

fact from the proofs offered at the hearing must be drawn against the movant and in 

favor of the party opposing the motion.” Id. at 343, 368 S.E.2d at 858 (citation 

omitted).

¶ 36 Here, plaintiffs fail to plead or forecast any evidence that would successfully 

demonstrate a Chapter 42 violation. Plaintiffs’ Complaint and Affidavit contain 

conclusory statements about unspecified electrical issues, violations of zoning 

ordinances and building code. The averments in plaintiffs’ affidavit mirror the those 

found in their Complaint. Plaintiffs forecast of evidence shows:
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28. That the Defendants have failed to keep the premises 

in a fit and habitable condition in:

a. refusing to repair electrical issues with the 

Property;

b. failing and refusing to maintain the Property in a 

habitable condition per zoning ordinance and 

building code;

c. failing and refusing to make appropriate repairs 

to the Property’s roof as necessary to address the 

water leaks;

d. failing to address and repair a malfunctioning air 

conditioning system; and

e. failing to take measures to remove vermin from 

the Property.

29. That on numerous occasions, [plaintiffs] complained to 

the Defendants of these issues, and the Defendants have 

failed and refused to address or correct the issues.

30. That instead of the [sic] addressing or correcting the 

issues, the Defendants responded in retaliation by 

wrongfully threatening to prematurely terminate our 

tenancy.

¶ 37 Rule 56(e) provides that an adverse party, when responding to a motion for

summary judgment, must set forth specific facts showing that there is a genuine issue 

for trial. N.C. R. Civ. P. 56(e). No specific facts appear in the record to substantiate 

a claim that water leaks, a malfunctioning air conditioning system, or vermin 

presented a triable issue of material fact for a Chapter 42 violation.

¶ 38 Moreover, there is no indication that defendants received written notice of any 
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needed repairs or if the conditions constituted an emergency. See § 42-42(a)(4). “Rule 

56(e) clearly precludes any party from prevailing against a motion for summary 

judgment through reliance on such conclusory allegations unsupported by facts.” 

Nasco Equip. Co. v. Mason, 291 N.C. 145, 152, 229 S.E.2d 278, 283 (1976). Therefore, 

the trial court properly allowed defendants’ motion for summary judgment on 

plaintiffs’ claim for breach of the implied warranty of habitability.

VI. Summary Ejectment

¶ 39 In this case, defendants filed a counterclaim for summary ejectment seeking 

an order for plaintiffs to vacate the premises. Plaintiffs argue the trial court lacked 

jurisdiction to summarily eject them. Plaintiffs also contend they were deprived of 

the protective provisions within Article 3 of Chapter 42. We disagree.

A. Subject Matter Jurisdiction

¶ 40 We first address plaintiffs’ argument that the superior court lacked subject 

matter jurisdiction to order summary ejectment in this case. The issue of subject 

matter jurisdiction can be raised at any time, even for the first time on appeal. 

Huntley v. Howard Lisk Co., 154 N.C. App. 698, 700, 573 S.E.2d 233, 235 (2002) 

(citation omitted). “Whether a trial court has subject-matter jurisdiction is a question 

of law, reviewed de novo on appeal.” McKoy v. McKoy, 202 N.C. App. 509, 511, 689 

S.E.2d 590, 592 (2010) (citation omitted).

¶ 41 Section 7A-240 provides that, except for the original jurisdiction vested in our 
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Supreme Court, 

original general jurisdiction of all justiciable matters of a 

civil nature . . . is vested in the aggregate in the superior 

court division and the district court . . . . Except in respect 

of proceedings in probate and the administration of 

decedents’ estates, the original civil jurisdiction so vested 

in the trial divisions is vested concurrently in each division.

§ 7A-240 (2021). In applying this statute to summary ejectment proceedings, this 

Court held that

when the legislature created the district court division and 

gave it concurrent original jurisdiction over all matters 

except probate and matters of decedents’ estates, it did not 

thereby divest the superior court division of any of its 

original jurisdiction. Hence, . . . the superior court division 

has original jurisdiction over summary ejectment actions.

E. Carolina Farm Credit, ACA v. Salter, 113 N.C. App. 394, 399, 439 S.E.2d 610, 612 

(1994) (emphasis added). Thus, the trial court possessed jurisdiction to rule on 

summary ejectment in this case.

B. Statutory Argument

¶ 42 Next, we consider whether plaintiffs’ argument regarding the proper 

application of §§ 42-25.6, 42-26-36.3, has been preserved for appellate review. After 

reviewing the record, including the transcript from the motions hearing held on 15 

March 2021, we are unable to identify any procedural argument regarding summary 

ejectment raised at the trial level. “Generally, a party may not raise an issue on 

appeal if that argument was not first raised in the trial court.” Bentley v. Jonathan 
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Piner Constr., 254 N.C. App. 362, 367, 802 S.E.2d 161, 164-65 (2017); see also N.C.R. 

App. P. 10(a)(1). “[W]here a theory argued on appeal was not raised before the trial 

court, the law does not permit parties to swap horses between courts in order to get 

a better mount in the appellate courts.” State v. Holliman, 155 N.C. App. 120, 123, 

573 S.E.2d 682, 685 (2002) (quotation marks and citations omitted). Therefore, we 

deem this argument waived.

VII. Remaining Counterclaims

¶ 43 Plaintiffs argue the trial court erred in granting partial summary judgment in 

favor of defendants on their claims for, inter alia, tortious interference with contract 

and fraud. Defendants do not respond to this issue.

¶ 44 “[S]ummary judgment is a drastic remedy, one to be approached with caution.” 

Billings v. Joseph Harris Co., 27 N.C. App. 689, 696, 220 S.E.2d 361, 367 (1975). It 

is only 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.” § 1A-1, Rule 56(c). “In determining whether a genuine issue of material fact 

exists, the court must view all material furnished in support of and in opposition to 

the motion for summary judgment in the light most favorable to the party opposing 

the motion.” Bradshaw v. McElroy, 62 N.C. App. 515, 518, 302 S.E.2d 908, 911 (1983)

(citation omitted).
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¶ 45 To establish a claim for tortious interference with contract, a plaintiff must 

show:

(1) a valid contract between the plaintiff and a third person 

which confers upon the plaintiff a contractual right against 

a third person; (2) the defendant knows of the contract; (3)

the defendant intentionally induces the third person not to 

perform the contract; (4) and in doing so acts without 

justification; (5) resulting in actual damage to plaintiff.

Beverage Sys. of the Carolinas, LLC v. Associated Bev. Repair, LLC, 368 N.C. 693, 

700, 784 S.E.2d 457, 462 (2016) (citation omitted). Here, an examination of the record 

reveals that defendants have not forecast evidence necessary to satisfy any essential 

element of this claim.

¶ 46 As to defendants’ claim for fraud, “the following essential elements of 

actionable fraud are well established: (1) False representation or concealment of a 

material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) 

which does in fact deceive, (5) resulting in damage to the injured party.” Ragsdale v. 

Kennedy, 286 N.C. 130, 138, 209 S.E.2d 494, 500 (1974) (citations omitted).

¶ 47 In the pleadings, defendants assert that plaintiffs: (1) falsely represented the 

roof to be substantially damaged by hail as a pretext for filing this action; (2) knew 

or should have known this representation was false; and (3) defendants have been 

damaged in an amount exceeding $25,000.00. Plaintiffs responded that there was 

substantial hail damage to the residence and furnished an Inspection Report, which 
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indicated a potential structural concern where water entry had taken place. After 

hearing from both parties’ counsel at the motions hearing, the trial court expressly 

stated that, “during the due diligence period it appears that there may have been 

some hail damage to the property. And I say, there may have been some hail damage 

to the property, because that’s disputed.”

¶ 48 When the evidence is viewed in a light most favorable to the nonmovant, 

defendants failed to carry their burden on this issue as well. It is not the duty of a 

trial court hearing a motion for summary judgment to decide an issue of fact, but 

rather to determine whether a genuine issue as to any material fact exists. Lee v. 

Shor, 10 N.C. App. 231, 233-34, 178 S.E.2d 101, 103 (1970). Regarding the claim for 

fraud, whether the roof was substantially damaged by hail is a disputed issue of 

material fact, and there are gaps in the forecast of evidence as to whether defendants 

were in fact deceived by plaintiffs’ alleged false representation. We conclude that 

defendants are not entitled to summary judgment on this issue.

VIII. Conclusion

¶ 49 For the foregoing reasons, the trial court properly dismissed plaintiffs’ claims 

for breach of contract and breach of the implied warranty of habitability. The 

superior court has jurisdiction over summary ejectment proceedings. However, 

plaintiffs failed to raise any objection or argument as to the application of Article 3 of 

Chapter 42 at the trial level. The trial court erred by granting partial summary 
JOHNSTON V. PYKA

2022-NCCOA-289

Opinion of the Court

judgment in favor of defendants on their claims for tortious interference with contract 

and fraud. We affirm in part, reverse in part, and remand for further proceedings.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

Chief Judge STROUD and Judge TYSON concur.