IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA22-825

Filed 06 June 2023

Brunswick County, No. 21CVS671

RICHARD KASSEL, and wife, SUSAN KASSEL, Plaintiffs,

v.

KENNETH RIENTH, and wife, CATHERINE RIENTH, Defendants.

Appeal by defendants-appellants from order entered 14 March 2022 by Judge 

J. Stanley Carmical in Brunswick County Superior Court. Heard in the Court of 

Appeals 26 April 2023. 

Law Offices of G. Grady Richardson, Jr., P.C., by Susan Groves Renton and G. 

Grady Richardson, Jr., for defendants-appellants. 

The Del Re Law Firm, by Benedict J. Del Re, Jr., for plaintiffs-appellees.

FLOOD, Judge.

Kenneth and Catherine Rienth (“Defendants”) appeal from the 14 March 2022 

Order for Specific Performance (the “March Order”). On appeal, Defendants argue 

the trial court erred by: (1) interpreting the consent order as a standard real estate 

purchase contract and not an order of the court; (2) inserting words into the 

unambiguous consent order; (3) making findings of fact that are unsupported by the 

evidence; and (4) denying their motion for sanctions. After careful review, we find no 

error. 
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I. Factual and Procedural Background

On 13 February 2020, Richard and Susan Kassel (“Plaintiffs”) entered into a 

Lease Agreement and Option to Purchase (the “Lease Agreement”) Defendants’ home 

(the “Home”) located at 3227 St. Andrews Circle SE, Southport, North Carolina. Per 

the Lease Agreement, Plaintiffs would lease the Home for a term of one year, 

beginning on 15 February 2020, with the right to purchase the Home at any time 

prior to the expiration of the Lease Agreement. 

On 3 August 2020, a hurricane substantially damaged the Home, resulting in 

the need to replace the roof. Defendants did not name Plaintiffs as an additional 

insured party on the Home and had difficulty obtaining insurance proceeds on repairs 

made by Plaintiffs. Plaintiffs alleged Defendants refused to pay those funds in an 

attempt to profit from the storm repairs. 

On 22 January 2021, Plaintiffs sent Defendants written notice of their intent 

to close with a cash sale on the Home. Plaintiffs hired Sandra Darby (“Ms. Darby”) 

as their closing attorney, and Defendants hired Zach Clouser (“Mr. Clouser”) as their 

closing attorney. The closing date was scheduled for 14 February 2021, but the 

parties were unable to close on the sale. 

On 16 February 2021, after it became clear to Plaintiffs that Defendants were 

not going to close on the Home, Plaintiffs filed a Claim of Lien with the Brunswick 

County Clerk of Court for $13,512.87. This “mechanic’s lien” was filed against the 

Home to secure the costs they expended to repair the roof damaged by the hurricane. 
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Subsequently, Excel Roofing filed their own mechanic’s lien for the roofing work they 

completed on the Home. 

On 8 April 2021, Plaintiffs filed a Complaint in Brunswick County Superior 

Court for breach of the Lease Agreement, breach of offer to purchase, specific 

performance, breach of duty of good faith, and damages. In their Complaint, 

Plaintiffs alleged Clay Collier (“Mr. Collier”) contacted Ms. Darby and represented 

himself as the attorney for Defendants. Plaintiffs alleged the sale of the Home did 

not take place because Defendants did not procure and provide the documents 

necessary to close on the Home and continued to demand more money related to the 

costs of repairing the roof. 

In June 2021, after ongoing negotiations, Plaintiffs’ current counsel, Benedict 

Del Re (“Mr. Del Re”) drafted a consent order (the “Consent Order”) memorializing 

Plaintiffs’ and Defendants’ resolution of issues and agreement to close. After drafting 

the Consent Order, Mr. Del Re sent the Consent Order to Defendants for their 

approval and signature. Defendants signed the Consent Order on 21 June 2021 and 

sent it to Plaintiffs for their signature. The Consent Order, which was “the result of 

arm’s length negotiation” between parties, was intended to resolve all claims between 

the parties and grant Plaintiffs’ claim for specific performance. Per the Consent 

Order, Defendants were responsible for satisfying Excel Roofing’s mechanic’s lien, 

and Plaintiffs were responsible for “satisfy[ing] the [mechanic’s] lien for $13,512.87.” 

Defendants were also responsible for providing proper execution and delivery of all 
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documents necessary to complete the closing transaction. The parties further agreed 

rent would be abated from the time the Consent Order was filed until the closing was 

complete. 

On 22 June 2021, Mr. Del Re emailed then-attorney for Defendants, Mr. 

Collier, summarizing what Defendants needed to complete in order to close. It is 

unclear from the Record whether Mr. Collier responded to this email, but Mr. Del Re 

sent a follow up email on 24 June 2021, stating: 

This is just not working. The mortgage company is going to 

back out of the financing which will cause further delay . . 

. . I have no order, nor lien cancellation, no response on 

[Plaintiffs’] lien payment. 

On 28 June 2021, Mr. Clouser sent the seller documents and the receipt for Excel 

Roofing’s mechanic’s lien payoff to Mack Hewett (“Mr. Hewett”), who took over closing 

responsibilities from Ms. Darby on behalf of Plaintiffs. Later that afternoon, the 

lender emailed Mr. Clouser requesting a list of items the lender needed “ASAP” to 

secure financing. Mr. Clouser responded that he was not doing the closing, and that 

last he heard, Mr. Hewett was responsible for the closing. 

On 7 July 2021, Judge Disbrow signed the Consent Order, and it was filed with 

the clerk the same day. The Consent Order did not specify the date for closing, but it 

stipulated closing was to occur sixty days after the Consent Order was filed, which
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would have been 7 September 2021.1 Defendants sent a request for a closing date but 

were told Plaintiffs were waiting on lender confirmation. Plaintiffs did not 

communicate a closing date to Defendants, but Plaintiffs worked with the lender 

through the month of August to complete the transaction. On 9 August 2021, 

Plaintiffs emailed Mr. Hewett that they had “scheduled a closing for [12 August 

2021,]” but due to final documents being “held-up,” closing on this date would not be 

feasible. It is unclear from the Record who was responsible for holding up these 

documents. 

On 8 September 2021, Mr. Del Re emailed Mr. Collier to schedule the closing 

date for 10 September 2021. Mr. Collier responded, “I am not acting as [sellers’] 

attorney for the closing; that is [Mr.] Clouser who, according to [Defendants] has tried

to contact [Mr. Hewett] and got no response. The deadline for closing was yesterday.” 

On 9 September 2021, Mr. Clouser emailed Mr. Del Re and Mr. Hewett the 

following: “As of last evening I was told not to release the seller documents because 

the deadline expired as far as the closing date. I just got off the phone with [Mr. 

Hewett] and let him know, since I received an additional email today that stated the 

same.” On 10 September 2021, Mr. Clouser sent another email that stated: 

“[Plaintiffs] told me to not release documents or order an updated payoff statement. 

They said the date that closing was required expired.” The parties attempted to 

1 Sixty days after 7 July 2021 would have been 5 September 2021 but this day was a Sunday 

and the following day was Labor Day. 
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resolve issues related to the closing but were unable to reach a resolution. 

On 1 November 2021, Plaintiffs filed a Motion for Clarification and a Motion 

for Relief from Final Entry of Judgment/Order under Rule 60 of the North Carolina 

Rules of Civil Procedure (the “Rule 60 Motion”), requesting the trial court extend the 

closing date. In their Motion, Plaintiffs alleged the delay in closing was due to 

Defendants’ delay in “consenting to inspections and providing verification of rents 

paid by Plaintiffs, delays in loan commitment due to title issues surrounding the 

cancellation of a mechanic’s lien in the Clerk’s office (official record), unexpected 

delays, and other delays not the fault of the Plaintiffs[.]” 

On 20 December 2021, Defendants filed a Motion to Enforce the Consent 

Order, which included a motion to eject Plaintiffs from the Home and restore 

possession to Defendants. Defendants further requested an award of Rule 11 

sanctions (the “Rule 11 Motion”) against Plaintiffs and Mr. Del Re for the Rule 60 

Motion. In response, Plaintiffs filed an Objection to Defendants’ Motion and a 

Countermotion for Specific Performance. 

On 14 March 2022, Judge Carmical entered the March Order granting 

Plaintiffs’ Motion for Specific Performance and denying Defendants’ Rule 11 Motion. 

The March Order concluded as a matter of law that the Consent Order “was intended 

to be a recital of the parties’ agreement . . . [and] should be considered a courtapproved contract and be subject to the normal rules of contract interpretation.” The 

trial court further concluded:
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Where a contract for the sale of real property does not 

include an explicit provision that time is of the essence for 

execution of the contract terms, the ‘the dates stated in an 

offer to purchase and contract agreement serve on as 

guidelines, and such dates are not binding on the parties.’

The trial court did not rule on the Rule 60 Motion filed by Plaintiffs. 

On 12 April 2022, Defendants filed timely notice of appeal. 

II. Jurisdiction

This Court has jurisdiction to hear this appeal as a final order from a superior 

court pursuant to N.C. Gen. Stat. § 7A-27(b) (2021). 

III. Analysis

A. Consent Order

Defendants’ first two issues on appeal are whether the trial court erred in (1) 

interpreting the Consent Order as a standard real estate contract and not a court 

order and (2) rewriting the Consent Order’s explicit deadline for Plaintiffs to close on 

the purchase of the Home by allowing Plaintiffs “a reasonable time to perform.” To 

address these issues, we are required to determine whether the Consent Order is a 

court-approved contract subject to regular principles of contract interpretation, or an 

order of the court enforceable only through contempt powers. Traditionally, consent 

orders have been considered “merely a recital of the parties’ agreement and not an 

adjudication of rights. This type of judgment does not contain findings of fact and 

conclusions of law because the judge merely sanctions the agreement of the parties.” 

Rockingham Cnty. DSS ex rel. Walker v. Tate, 202 N.C. App. 747, 750, 689 S.E.2d 
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913, 915 (2010). The question before us, therefore, is whether the inclusion of findings 

of fact and conclusions of law in the Consent Order transformed it from a courtapproved recitation of the parties’ agreement into a binding order of the court subject 

to enforcement only through contempt powers. In answering this question, we first 

examine diverging views of this State’s jurisprudence regarding consent orders. 

North Carolina’s jurisprudence regarding consent orders has long agreed “the 

general rule is that a consent judgment is the contract of the parties entered upon 

the record with the sanction of the court.” Handy Sanitary Dist. v. Badin Shores 

Resort Owners Ass’n, Inc., 225 N.C. App. 296, 298, 737 S.E.2d 795, 798 (2013); see 

also In re Smith’s Will, 249 N.C. 563, 568–69, 107 S.E.2d 89, 93–94 (1959) (consent 

judgment was nothing more than a contract not punishable by contempt); Yount v. 

Lowe, 288 N.C. 90, 96, 215 S.E.2d 563, 567 (1975) (“The decisions of this State have 

gone very far in approval of the principle that a judgment by consent is but a contract 

between the parties . . . .”); Crane v. Greene, 114 N.C. App. 105, 441 S.E.2d 144 (1994); 

Potter v. Hileman Lab’y, Inc., 150 N.C. App. 326, 564 S.E.2d 259 (2002); Duke Energy 

Corp. v. Malcolm, 178 N.C. App. 62, 630 S.E.2d 693 (2006). 

There appears, however, to be ansplit in our jurisprudence in how a court 

determines the proper remedy for a breach or violation of a consent order. One line 

of cases has concluded that, when a consent order contains findings of fact and 

conclusions of law, it is an order of the court only actionable through contempt 

powers. In Potter, we reasoned: 
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A consent judgment is the contract of the parties entered 

upon the record with the sanction of the court. Thus, it is 

both an order of the court and a contract between the 

parties. If a consent judgment is merely a recital of the 

parties’ agreement and not an adjudication of rights, it is 

not enforceable through the contempt powers of the court, 

but only through a breach of contract action.

150 N.C. App. at 334, 564 S.E.2d at 265 (citations omitted). In Potter, we determined 

the consent order was not a “mere recital of the parties’” agreement—and was an 

order of the court—because the consent order contained findings of fact and an order 

based on those findings. Id. at 334, 564 S.E.2d at 265. In the opposite vein, in Ibele 

v. Tate, we found a consent order was not an order of the court because it did not 

contain findings of fact or conclusions of law but was merely a recitation of the parties’ 

settlement agreement. 163 N.C. App. 779, 781, 594 S.E.2d 793, 795 (2004).

In another line of cases, our jurisprudence has definitively held consent orders 

are court-approved contracts subject to principles of contract interpretation, not 

contempt powers, without indicating whether the consent order contained findings of 

fact. Cf. Duke Energy Corp. v. Malcolm 178 N.C. App. 62, 65 630 S.E.2d 693, 695 

(2006) (“Consent judgments delineating easement rights are foremost contracts.”); see 

also Reaves v. Hayes, 174 N.C. App. 341, 343–44, 620 S.E.2d 726, 728–29 (2005) (“A 

consent judgment is a contract between the parties entered upon the records of the 

court with the approval and sanction of a court of competent jurisdiction. It is 

construed as any other contract. . . . Thus, a consent judgment ‘must be enforced 

according to contract principles.’”) (emphasis added); Hemric v. Gore, 154 N.C. App. 
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393, 397, 572 S.E.2d 245, 257 (2002); (“A consent judgment is a contract between the 

parties entered upon the record with the sanction of the trial court and is enforceable 

by means of an action for breach of contract and not contempt.”); Walton v. City of 

Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411 (1996) (“A consent judgment is a 

court-approved contract subject to the rules of contract interpretation.”). 

In a third line of cases, this Court reviewed the four-corners of the consent 

judgment at issue to determine whether it was more appropriately considered a courtapproved contract or an order of the court. In Crane, this Court considered whether 

the trial court merely approved the agreement of the parties or went beyond the 

original agreement and made a judicial determination of the parties’ respective

rights. 114 N.C. App. at 106, 441 S.E.2d at 144–45 (“In the ordinary case, when a 

court merely approves the agreement of the parties and sets it out in the judgment, 

a judicial determination is obviated, and the judgment is nothing more than a 

contract which is enforceable only by means of an action for breach of contract.”). 

Even though the consent order at issue did not contain findings of fact or conclusions 

of law, the Court did not conclude this was dispositive of the consent order being a 

court-approved contract. Id. at 107, 441 S.E.2d at 145. Instead, the Crane Court 

reasoned the introduction to the consent order “clearly” stated its purpose: 

THIS MATTER coming on before the undersigned Superior 

Court Judge at the October 8, 1990 Civil Session of the 

Avery County Superior Court, and it appearing to the 

Court that the parties, acting through their attorneys and 
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pro se respectively, have agreed to resolve all matters 

pertaining to the above-captioned action as set forth below.

THEREFORE, IT IS HEREBY, ORDERED, ADJUDGED 

AND DECREED.

Id. at 106–107, 441 S.E.2d 145 (second emphasis added). We found the consent 

judgment was a court-approved contract because the judgment, “[o]n its face,” did not 

reflect a determination by the trial court of either issues of fact or conclusions of law, 

but merely recited the parties’ agreement. Id. at 106–107, 441 S.E.2d at 145 (“Viewed 

from its four corners, it is clear that the order . . . is merely a recital of the parties’ 

agreement and not an adjudication of rights.”). 

In Nohejl v. First Homes of Craven County Inc., this Court held, based on “the 

facts of [the] case,” the trial court had the power to enforce a consent order through 

contempt. 120 N.C. App. 188, 189, 461 S.E.2d 10, 11 (1995) (emphasis added). The 

consent order provided it could be enforced “by specific performance, contempt, or any 

method that may be available.” Id. at 189, 461 S.E.2d at 11.2 Distinguishing from 

the consent order at issue in Crane, the Nohejl Court concluded the consent order was

an order of the court because it was entered by the trial court and contained written 

findings of fact and an order based on those findings. Id. at 190–91, 461 S.E.2d at 12. 

2 It is worth noting, the plaintiffs in Nohejl filed a motion to hold the defendant in contempt 

based on the consent order. It seems, based on the wording of the consent order at issue, the Court 

would have also affirmed an order for specific performance had the plaintiffs requested and been 

granted specific performance by the trial court. This Court determined the appropriate remedy based 

on the plain-language of the Consent Order, which lends further support to our conclusion that 

findings of fact alone are not dispositive. 
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In PCI Energy Services, Inc. v. Wachs Technology Services, Inc, this Court once 

again considered whether a consent judgment that contained findings of fact and 

conclusions of law was a court-approved contract or an order of the court. 122 N.C. 

App. 436, 439, 470 S.E.2d 565, 566 (1996). We found the procedural history of the 

case to be significant, specifically noting the same trial judge who entered the consent 

order had previously entered a preliminary injunction in the case. Id. at 439, 470 

S.E.2d at 567. We also found the language of the consent order to be significant. Id. 

at 439, 470 S.E.2d at 567. Similar to Crane, the consent order at issue in PCI Energy 

stated, “the parties have entered into a Settlement Agreement which can be made the 

subject of this Consent Agreement.” Id. at 439, 470 S.E.2d at 567 (emphasis added). 

The trial court, however, went a step further than that in Crane and “explicitly 

‘approve[d,] . . . adopt[ed,] . . . incorporate[ed] and . . . made an enforceable judgment 

of the Court,’ the terms of the settlement agreement.” Id. at 439, 470 S.E.2d at 567 

(alterations in original). We ultimately held, “[b]y ‘adopting’ and ‘incorporating’ the 

settlement agreement, the [trial] court transformed the parties’ agreement into the 

[trial] court’s own determination of the parties’ respective rights and obligations[,]” 

and “did not merely ‘rubber stamp’ the parties’ private agreement[.]” Id. at 439–40, 

470 S.E.2d at 567. 

Nohejl, Crane, and PCI Energy lend support to our conclusion that findings of 

fact and conclusions of law are not dispositive of whether a consent order is a courtapproved contract enforceable through a breach of contract action, or an order of the 
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court enforceable through contempt powers. Instead, a court must consider whether, 

on its face, the order goes beyond a “mere[] recital” of the parties’ agreement, see 

Crane, 114 N.C. App. at 107, 441 S.E.2d at 145, the facts of each individual case, see 

Nohejl, 120 N.C. App. at 189, 461 S.E.2d at 11, and the procedural history 

surrounding the litigation. See PCI Energy, 122 N.C. App. at 439, 470 S.E.2d at 567. 

Turning to the case sub judice, we conclude the above-referenced 

considerations weigh in favor of the Consent Order being a court-approved contract 

subject to standard rules of contract interpretation. First, the plain language of the 

Consent Order shows the court “merely approve[d] the agreement of the parties and 

set[] it out in the judgment.” See Crane, 114 N.C. App. at 106, 441 S.E.2d at 145. 

Similar to the consent order at issue in Crane, the Consent Order in this case states, 

“the parties have reached an agreement regarding resolution of the issues plead in the 

Complaint and Counterclaim . . . .” (emphasis added). The plain language of the 

Consent Order affirms that it is the result of a mutual agreement reached by the 

parties. The Consent Order was not an adjudication of parties’ respective rights, but 

rather was the result of an “arm’s length negotiation” between parties. 

Second, based on the facts of this case, it appears that Judge Disbrow approved 

the agreement reached by the parties, and did not make a judicial determination of 

the parties’ respective rights. See Crane, 114 N.C. App. at 106, 441 S.E.2d at 145. 

Judge Disbrow signed the Consent Order after it had been drafted and signed by the 

parties and notarized. Judge Disbrow did not “adopt” or “incorporate” the terms of 
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the settlement agreement into Consent Order; he signed the Consent Order exactly 

as it was presented to him by the parties. See PCI Energy, at 439, 470 S.E.2d at 567. 

Notably, Defendants had already signed and notarized the Consent Order on 21 June 

2021 before it was presented to Judge Disbrow. Judge Disbrow could not have 

“transformed the parties’ agreement” into his “own determination of the parties’ 

respective rights and obligations” without sending it back to Defendants for approval 

and signature. See id. at 439, 470 S.E.2d at 567. 

Third, from our review of the language of the Consent Order, it appears that 

Judge Disbrow essentially “rubber stamped” the agreement reached by the parties. 

See PCI Energy, 122 N.C. App. at 439, 470 S.E.2d at 566. The first six findings of fact 

identify the parties, summarize the Complaint, and summarize the option to 

purchase. Finding of Fact 7 explains the “terms of the agreement” reached by the 

parties, including the sixty days to close provision. The remaining findings of fact 

are standard contract provisions including: a merger clause, representations of 

warranties, effect of the agreement on successors and assigns, modifications, and 

choice of law. The Consent Order lacks any evidence that Judge Disbrow 

“transformed” it by “incorporating,” or “adopting” provisions of the parties’ agreement

into his own determination of their respective rights. See PCI Energy, 122 N.C. App. 

at 439–40, 470 S.E.2d at 567. The Consent Order was the parties’ agreement in its 

entirety. 

Although the Consent Order uses language that could imply the trial court’s 
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independent insertion of findings of fact or conclusions of law—e.g., “upon greater 

weight of the evidence and the Record,” “entry of judgment,” “concludes as a matter 

of law,” “it is ordered, adjudged and decreed,” and “hereby made an Order of the 

Court”—such terminology does not outweigh the overwhelming evidence that the 

trial court merely approved the agreement of the parties and did not make a judicial 

determination of their respective rights. See Crane, 114 N.C. App. at 107, 441 S.E.2d 

at 145. The language from the Consent Order is not unlike that seen in Crane, where 

this Court used the terms “ordered, adjudged and decreed” and concluded the consent 

order was not an adjudication of the parties’ rights. See Crane, 114 N.C. App. at 107, 

441 S.E.2d at 145. 

Not only does our jurisprudence indicate that the Consent Order here is a 

court-approved contract, but likewise, Defendants’ filing also indicates they viewed it 

similarly. Defendants filed a Motion to Enforce the Court Order, not a motion to hold 

Plaintiffs in contempt for failing to comply with the Consent Order. Thus, Defendants 

themselves likely viewed the Consent Order as a real estate contract between the 

parties, not a court order enforceable through contempt powers. At trial, Defendants 

acknowledged that they could have filed a motion for contempt, and that they 

ultimately decided not to because it would not have afforded them any relief. 

Therefore, we find the Consent Order was a court-approved contract subject to 

the usual principles of contract interpretation. See Reaves, 174 N.C. App. at 343, 620 

S.E.2d at 728. 
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B. Modification of the Consent Order 

Defendants next argue the trial court erred by inserting Plaintiffs’ requested 

language of “reasonable time to perform” into the unambiguous Consent Order. The 

trial court, however, did not “insert” language into the Consent Order as Defendants 

contend. The trial court interpreted the Consent Order as allowing a “reasonable time 

to perform” because the Consent Order did not have a “time is of the essence” clause. 

Having determined the Consent Order was a court-approved contract subject to 

principles of contract interpretation, we hold the trial court’s interpretation was 

correct. 

“The trial court’s determination of whether the language in a consent judgment 

is ambiguous . . . is a question of law and therefore our review of that determination 

is de novo.” Hemric v. Groce, 169 N.C. App. 69, 75, 609 S.E.2d 276, 282 (2005). 

“‘Under a de novo review, the court considers the matter anew and freely substitutes 

its own judgment’ for that of the lower tribunal.” State v. Biber, 365 N.C. 162, 168, 

712 S.E.2d 874, 878 (2011).

As a general rule, the language of a contract should be 

interpreted as written; however, there is a well-settled 

exception, the “reasonable time to perform rule,” that 

applies to contracts for the sale of real property. With 

respect to these realty sales contracts, it has long been held 

that in the absence of a “time is of the essence” provision, 

time is not of the essence, the dates stated in an offer to 

purchase and contract agreement serve only as guidelines, 

and such dates are not binding on the parties. 

Harris v. Steward, 193 N.C. App. 142, 146, 666 S.E.2d 804, 807 (2008) (citations 
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omitted).

Here, the Consent Order, which pertains to the sale of real property, includes 

a provision that closing would take place sixty days after the filing of the Consent 

Order. No provision for, or indication that “time is of the essence” was included in 

the Consent Order. 

Thus, the trial court did not err by interpreting the Consent Order, absent a 

“time is of the essence clause,” as allowing closing “within a reasonable time.” See 

Harris, 193 N.C. App. at 146, 666 S.E.2d at 807. 

C. Competent Evidence to Support Specific Performance 

Defendants also argue the trial court lacked competent evidence to support its 

March Order. We disagree. 

The sole function of the equitable remedy of specific 

performance is to compel a party to do that which in good 

conscience he ought to do without court compulsion. The 

remedy rests in the sound discretion of the trial court and 

is conclusive on appeal absent a showing of a palpable 

abuse of discretion. 

Munchak Corp. v. Caldwell, 46 N.C. App. 414, 418, 265 S.E.2d 654, 657 (1980) 

(citations omitted). “A judge is subject to reversal for abuse of discretion only upon a 

showing by a litigant that the challenged actions are manifestly unsupported by 

reason.” Greenshields, Inc. v. Travelers Prop. Cas. Co. of Am., 245 N.C. App. 25, 31, 

781 S.E.2d 840, 844 (2016) (citation omitted).

“In reviewing a trial [court]’s findings of fact, we are strictly limited to 
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determining whether the [court’s] underlying findings of fact are supported by 

competent evidence, in which event they are conclusively binding on appeal, and 

whether those factual findings in turn support the judge’s ultimate conclusions of 

law.” Reeder v. Carter, 226 N.C. App. 270, 274, 740 S.E.2d 913, 917 (2013) (citation 

and internal quotation marks omitted). “Findings of fact are conclusive if supported 

by competent evidence, irrespective of evidence to the contrary.” Wiseman Mortuary, 

Inc. v. Burrell, 185 N.C. App. 693, 697, 649 S.E.2d 439, 442 (2007) (citation omitted). 

The trial court does not need to find that all the facts support a specific conclusion of 

law; rather it must find facts necessary to establish the cause of action, that may lead 

to the cause of action failing, or necessary to establish a defendant’s affirmative 

defense. Carolina Mulching Co. v. Raleigh-Wilmington Invs. II, LLC, 378 N.C. 100, 

105, 851 S.E.2d 496, 500 (2021) 

“The party claiming the right to specific performance must show the existence 

of a valid contract, its terms, and either full performance on his part or that he is 

ready, willing and able to perform.” Ball v. Maynard, 184 N.C. App. 99, 107, 645 

S.E.2d 890, 896 (2007) (citation omitted). 

1. Finding of Fact 1

First, Defendants argue Finding of Fact 1 incorrectly refers to only two of the 

six causes of action set forth in Plaintiffs’ Complaint, which prevents a correct 

interpretation of the Consent Order and an understanding of what it was intended to 

resolve. 
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Finding of Fact 1 provides: 

1. Plaintiffs filed an action for Breach of Contract and 

Specific Performance to enforce an offer to Purchase 

Contract for real estate owned by Defendants dated 

February 14, 2020 located at 3227 St. Andrew’s Circle in 

Southport, N.C. 28462.

Plaintiffs’ Complaint asserted six causes of action including: breach of the 

Lease Agreement, breach of offer to purchase and contract, specific performance, 

reasonable attorney’s fees pursuant to N.C. Gen. Stat. § 46A-3, punitive damages 

pursuant to N.C. Gen. Stat. § 1D-1, and breach of duty to act in good faith. The 

Consent Order itself described only an action for “Breach of Contract, Specific 

Performance, and other claims, equitable remedies and monetary damages . . . .” 

(emphasis added). The claims relevant to interpreting the Consent Order and what 

it was intended to resolve are breach of contract and specific performance. 

Thus, there was no error in omitting the remaining four claims, and if there 

was error, it was harmless because the March Order adequately establishes the 

relevant causes of action. See Carolina Mulching Co., 378 N.C. at 106, 851 S.E.2d at 

500.

2. Findings of Fact 4 and 5

Second, Defendants argue Findings of Fact 4 and 5 incorrectly interpret the 

Consent Order, state facts that are not grounded in law, and do not address the proper 

legal standard to be applied in this case. Defendants specifically argue Finding of 

Fact 4 misleadingly omits that the findings of fact in the Consent Order were made 
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Opinion of the Court

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“upon greater weight of the evidence.” 

Findings of Fact 4 and 5 provide: 

4. The [Consent] Order at issue in this case was prefaced 

with “[t]he Court finds that the parties have reached an 

agreement regarding the resolution of the issues plead in 

the Complaint and Counterclaim ...” and made its findings 

of conclusions based “upon the stipulations of counsel and 

consent of the parties.” The [Consent] Order does not 

include a provision that it is enforceable through the 

contempt powers of the court. 

5. There is no indication that there was a hearing where 

evidence was taken, or that independent findings or 

conclusions of law were made by the Judge. Defendants 

state in their [brief] that “Plaintiffs and Defendants 

reached an agreement settling all matters, claim, disputes 

and actions in the Lawsuit by mutual agreement and entry 

into the Consent Order.” In addition, the Defendants state 

that Plaintiffs’ attorney drafted all of the provisions of the 

[Consent] Order and that Defendants did not change any 

of those terms. 

Finding of Fact 4 quotes language directly from the Consent Order. The 

omission that the findings were made “upon the greater weight of the evidence” does 

not render the finding unsupported by competent evidence. The trial court heard 

sufficient evidence showing no hearing was held on the Consent Order, Judge 

Disbrow signed the Consent Order after it had been drafted and signed by the parties, 

Defendants’ brief states the parties reached an agreement settling all matters, and 

Mr. Del Re drafted the terms of the Consent Order. Based on this overwhelming 

evidence, we hold the parties intended the Consent Order to be a contract. The trial 

court gave more weight to “upon the stipulations of counsel and consent of the parties” 
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Opinion of the Court

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than it did “upon greater weight of the evidence,” which is not an error. See Burrell, 

185 N.C. App. at 697, 649 S.E.2d at 442. 

Findings of Fact 4 and 5, therefore, are supported by the language of the 

Consent Order. See Reeder, 226 N.C. App. at 274, 740 S.E.2d at 917. 

3. Finding of Fact 6

Third, Defendants argues the trial court erred in Finding of Fact 6 because 

Defendants did not make any statements agreeing that the Consent Order was meant 

to be a court-approved contract. 

Finding of Fact 6 provides: 

6. The July 7, 2021 [Consent] Order on its face, along with 

the statements of both parties, demonstrate that the 

[Consent] Order was intended to be a recital of the parties’ 

agreement, with no adjudication on the part of the Court. 

Therefore, the [Consent] Order should be considered a 

court-approved contract and be subject to the normal rules 

of contract interpretation. 

While Defendants’ counsel may have stated “it’s not a contract. It’s an order[,]”

Finding of Fact 6 states that the “statements of both parties, demonstrate that the 

[Consent] Order was intended to be a recital of the parties’ agreement, with no 

adjudication on the part of the Court.” (emphasis added). In Defendants’ motion to 

enforce the Consent Order they stated: “Plaintiff[s] and Defendants reached an 

agreement,” the Consent Order was drafted with “all terms and provisions,” and the 

Consent Order was signed by Defendants prior to receiving Judge Disbrow’s 

signature. Taken together, these representations by Defendants show both parties 
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Opinion of the Court

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intended the Consent Order to be a court-approved contract. 

Accordingly, Finding of Fact 6 is supported by competent evidence. See Reeder, 

226 N.C. App. at 274, 740 S.E.2d at 917.

4. Findings of Fact 9 and 15

Fourth, Defendants argue Finding of Fact 9 “erroneously describes the email 

sent by [Mr. Del Re] on 8 September 2021 . . . as ‘confirming’ the closing date.” 

Defendants further argue Findings of Fact 9 and 15 are not supported by competent 

evidence because Defendants did not refuse to tender a deed at closing. 

Findings of Fact 9 and 15 provide: 

9. The [Consent] Order was entered on July 7, 2021, 

meaning the 60-day deadline expired on September 7, 

2021. On September 8, 2021, Plaintiffs sent an email to 

Defendants confirming a closing date of September 10, 

2021. Defendants responded that the deadline for closing 

was the day before. The sellers never tendered the deed. 

Plaintiffs allege, and Defendants have not disputed, that 

the mortgage company was ready to fund the loan. 

. . . .

15. The [Consent] Order did not provide “time was not [sic] 

of the essence” and Plaintiffs were ready to tender the 

balance of the purchase price and close within a reasonable 

period of time. Defendants then refused to tender the deed 

at settlement, in breach of the [Consent] Order.

The email sent on 8 September 2021 was sent with the intent of confirming the 

closing date. Plaintiffs may have been incorrect about the date of the closing, but 

that does not change the intent behind the 8 September 2021 email, which was to 
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Opinion of the Court

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confirm a closing date of 10 September 2021. 

As for Defendants refusing to tender the deed, this is also supported by the 

evidence. The portion of Finding of Fact 9 that states, “Defendants never tendered 

the deed[,]” is supported by email evidence that Defendants did not tender the deed. 

Plaintiffs were prepared to go forward with the closing, albeit late, but Defendants, 

either directly or through counsel, refused to tender the deed. 

Thus, Findings of Fact 9 and 15 are supported by competent evidence. See 

Reeder, 226 N.C. App. at 274, 740 S.E.2d at 917.

5. Finding of Fact 10 

Fifth, Defendants argue the trial court erred in Finding of Fact 10 because it 

incorrectly states a conclusion of law as fact. Specifically, Defendants argue that the 

finding “[Plaintiffs] are entitled to specific performance” is a conclusion of law, not a 

finding of fact. Further, Defendants argue the finding incorrectly states delays were 

the fault of Defendants. Finding of Fact 10 states: 

10. Plaintiffs allege in their filings that the closing date 

was set by the Lenders and Plaintiffs’ closing attorney and 

that they were ready to tender the balance of the purchase 

price and receive the deed to the property. There is no 

indication, and it is not alleged by Defendants, that 

Plaintiffs are not “ready, willing, and able to perform.” 

Plaintiffs have demonstrated that they are entitled to 

specific performance and that the sale of the property 

should be completed as intended by the [Consent] Order. 

10. [sic] Plaintiffs allege that “due to delays in [D]efendants 

consenting to inspections and providing verification of 

rents paid by the Plaintiffs, delays in loan commitment due 

to title issues surrounding the cancellation of the 
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Opinion of the Court

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mechanic’s lien in the clerk’s office, unexpected delays and 

other delays not the fault of [P]laintiffs[,]” they were not 

ready for closing until September 10, 2021. 

“If a finding of fact is essentially a conclusion of law . . . it will be treated as a 

conclusion of law which is reviewable [de novo] on appeal.” See Burrell, 185 N.C. App. 

at 697, 649 S.E.2d at 442. 

At trial, Plaintiffs were able to show the existence of a valid contract and its 

terms, and that they were ready, willing, and able to perform. As we previously 

concluded, absent a “time is of the essence” clause, Plaintiffs had a “reasonable time 

to perform,” and their two-day delay in closing does not render them any less willing 

and able to perform. See Ball, 184 N.C. App. at 107, 645 S.E.2d at 896. The 

conclusion of law that Plaintiffs were entitled to specific performance, therefore, was 

not an error. See Burrell, 185 N.C. App. at 697, 649 S.E.2d at 442. 

Moreover, the remaining portions of Finding of Fact 10 are not independent 

findings made by the trial court but are merely a summary of the arguments made 

by Plaintiffs in their motion, and the finding is supported by Plaintiffs’ motion. 

Accordingly, Finding of Fact 10 is supported by competent evidence. See 

Reeder, 226 N.C. App. at 274, 740 S.E.2d at 917.

6. Findings of Fact 11, 12, 13, and 14

Sixth, Defendants argue competent evidence refutes Findings of Fact 11, 12, 

13, and 14 because Defendants did not make “time is of the essence” arguments, the 

delays in closing were Plaintiffs’ fault, and the focus on “reasonable” or “of the 
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Opinion of the Court

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essence” was reached under a misapprehension of the law. Defendants further argue 

Findings of Fact 11, 12, and 13 are not supported by the evidence because there were 

no “required prerequisites,” and any delays were Plaintiffs’ fault. We disagree.

The challenged Findings of Fact state: 

11. Defendants allege that the time was “of the essence” in 

the contract and that because the Plaintiffs did not close on 

or before September 7, 2021, they were not in compliance 

with the terms of the [C]onsent [O]rder. Defendants do not 

contend that the delay was the fault of the Plaintiffs, 

Defendants contend there was a delay in closing and 

because the mandatory closing deadline was missed, 

Defendants are entitled to refuse to close on the contract. 

12. The [Consent] Order does not contain an explicit “time 

is of the essence provision[.]” The provision at issue in the 

parties’ dispute is accompanied by a list of required 

prerequisites to complete the contract that depend on the 

actions of third parties, such as the Lender. Because there 

is no “time is of the essence provision” the “reasonable time 

to perform rule” applies to the requirements of the 

[Consent] Order. Plaintiffs have alleged several reasons 

outside of their control as to why their ability to close was 

delayed, and Defendant[s] had not contested those reasons. 

Some of the reasons alleged by Plaintiffs are due to 

Defendants [sic] own failure to act as needed to effectuate 

the intent of the [Consent] Order. 

13. The delay in closing was three (3) days past the 60-day 

deadline period, not a significant amount of time. Plaintiffs 

have adequately demonstrated that they did not “delay or 

tarry” in complying with the contract and that they 

complied within a reasonable period of time.

The Consent Order provided:

7. That the parties have reached a settlement of the dispute 

in this matter with the substantive terms of the agreement 
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Opinion of the Court

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as follows: 

a. Defendants, by and through Counsel will, within Five (5) 

days of the entry of this Order, satisfy the lien at the Office 

of the Clerk of Court filed by Excel Roofing, secure a 

notarized Affidavit from the lien claimant that the lien has 

been satisfied by an authorized agent of Excel Roofing to 

be filed with the Clerk of Court in the Lien Docket, and 

secure a further Subcontractor’s notarized lien waiver of all 

liens to be provided to the mortgage lender of the 

Plaintiff[s]. . . from the lien holder. 

b. That the Plaintiffs will, within Five (5) days of the entry 

of this Order, satisfy the lien for $13,512.87 filed February

16, 2021 in 21 M 59 at the Office of the Clerk of Court and 

provide a notarized Affidavit from the Plaintiff (or entity) 

that the lien has been satisfied by an authorized agent of 

Plaintiff to be filed with the Clerk of Court in the Lien 

Docket, and secure a further affidavit and General Lien 

Waiver of all liens to be provided to the mortgage lender of 

the Plaintiff . . . to the Defendants [sic].

c. That on a date to be set by the Plaintiff’s Lender in 

conjunction with the Plaintiff’s Attorney, not to exceed 60 

days from the entry of the Order, Plaintiff[s] will tender the 

balance of the $337,500 purchase price being $312,500.00 

with $25,000 having been credit [sic] to buyers as a deposit 

having been received, with adjustments for insurance 

(Flood, Hazard, Wind and Hail), County and City taxes and 

property owners due, other prorations and any other 

regular and customary expense adjustments, and any 

additional costs and expenses for document preparation, 

title insurance, revenue stamps any other regular and 

customary expenses paid by the buyer and seller for closing 

of real property in Brunswick County, State of North 

Carolina. That Defendants, on said date, will provide the 

proper execution and delivery to the closing attorney of all 

documents necessary to complete the transaction 

contemplated by this Contract, including the deed, 

settlement statement, deed of trust and other loan or 

conveyance documents and waivers. That all parties will 
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Opinion of the Court

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cooperate in the requests of the Lender for documents, 

assignments of insurance, etc. and any other forms 

necessary to close the loan and facilitate the closing to 

include the permission for any necessary inspections for the 

loan and the property closing. That the transfer of the 

property will be free of all liens and encumbrances by a 

general Warranty Deed, allowing Plaintiff’s [sic] lender a 

First secured position in the property. That further rent is 

abated. 

(emphasis added). 

Defendants may not have raised “time is of the essence” arguments in their 

motions or at the hearing, but in the Record, there are two emails Defendants sent 

Plaintiffs where Defendants stated, “time was of the essence.” First, in an email sent 

from Defendants’ counsel to Mr. Del Re on 27 October 2021, Defendants’ counsel 

stated: “If you have any serious and meaningful offer on behalf of the [Plaintiffs] to 

resolve this matter, let me know. Time is of the essence.” (emphasis in original). In 

this context, we read “time is of the essence” to refer to Mr. Del Re’s response to the 

email rather than the performance of the contract being “of the essence.” The second 

communication, however, does support the trial court’s findings that Defendants 

alleged time was of the essence to fulfill the Consent Order. In the second 

correspondence, a settlement communication sent from Defendants’ counsel to Mr. 

Del Re on 29 October 2021, Defendants’ counsel stated, “[t]he [Plaintiffs] pay the 

lump sum of [redacted] time being of the essence . . . .” (emphasis in original). This 

communication lends support to the trial court’s finding that Defendants did in fact 

allege “time was of the essence[.]” To be clear, the Consent Order did not contain a 
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Opinion of the Court

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“time is of the essence” clause and Finding of Fact 11 does not contradict this. Finding 

of Fact 11 only states Defendants argued “time was of the essence,” which we conclude 

was supported by competent evidence for the reasons explained. See Reeder, 226 N.C. 

App. at 274, 740 S.E.2d at 917.

As for the “prerequisites,” it is clear from the plain language of the Consent 

Order that both parties were required to fulfill certain obligations prior to closing. 

Defendants were required to satisfy the mechanic’s lien filed by Excel Roofing, 

Plaintiffs were responsible for satisfying the mechanic’s lien they had filed on the 

Home, and both parties were responsible for procuring various documents and 

cooperating with the lender. This challenged portion of the Finding of Fact 12, 

therefore, is supported by competent evidence. See Reeder, 226 N.C. App. at 274, 740 

S.E.2d at 917.

Additional evidence indicates both parties were responsible for the delay. The 

Record shows the lender requested a thirty-day extension on the purchase contract. 

Plaintiffs emailed Mr. Hewett on 9 August 2021 advising him that Plaintiffs had 

scheduled a closing for 12 August 2021, but this would not be able to occur as the 

lender could not finalize the loan documents due to a delay in the Property Owners 

Association providing a statement of dues paid on the Home. On 11 August 2021, 

Plaintiffs stated in an email to their counsel, “[n]ot to my surprise—title issues are 

holding us up.” Moreover, on 4 October 2021, Mr. Del Re sent Defendants’ counsel 

an email, which stated: 
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Opinion of the Court

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Let me know you received the documents showing that the 

loan was approved and ready to close in September. Those 

emails also reflect that the settlement lawyer is the one 

who picked the date of closing pursuant to the [C]onsent 

[O]rder.

While the email referencing the lender-set closing date was omitted from the Record, 

Defendants’ counsel’s response is further evidence such an email existed. In response 

to the aforementioned email sent on 4 October 2021, Defendants’ counsel represented: 

Confirming that I did receive your fax and reported to 

[Defendants] via email that it appeared the delay this time 

was not caused by you[] or [Plaintiffs] and that is appears 

[Plaintiffs] had funding to close.

The portions of Findings of Fact 11, 12, and 13 that state delays were not the 

fault of Plaintiffs, therefore, are supported by competent evidence. See Reeder, 226 

N.C. App. at 274, 740 S.E.2d at 917.

Finally, Defendants argue the trial court erred in Findings of Fact 11, 12, and 

13 because the focus on the timing being “reasonable” or “of the essence” was reached 

as a misapprehension of law by treating the Consent Order as a real estate contract. 

Having affirmed the trial court’s conclusion that absent a “time is of the essence” 

clause, Plaintiffs were entitled to a reasonable amount of time to perform, we 

conclude these findings are supported by competent evidence. See Reeder, 226 N.C. 

App. at 274, 740 S.E.2d at 917.

Accordingly, we hold the trial court did not abuse its discretion in granting 

Plaintiffs’ Motion for Specific Performance because the trial court made adequate 
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Opinion of the Court

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findings of fact showing Plaintiffs were ready, willing, and able to perform according 

to the Consent Order. See Greenshields, 245 N.C. App. at 31, 781 S.E.2d at 844; Ball, 

184 N.C. App. at 107, 645 S.E.2d at 896.

D. Motion for Sanctions 

Lastly, Defendants argue the trial court erred by denying their Rule 11 

Motion.3 Defendants filed the Rule 11 Motion alleging Plaintiffs’ Rule 60 Motion was 

“not well-grounded in fact, not warranted by existing law, and/or was interposed for 

the improper purposes of annoying Defendants and their counsel, causing 

unnecessary delay . . . and needlessly increasing the Defendants’ cost of litigation.” 

We disagree.

“This Court exercises a de novo review of the question of whether to impose 

Rule 11 sanctions.” Dodd v. Steele, 114 N.C. App. 632, 635, 442 S.E.2d 363, 365 

(1994). A Rule 11 analysis includes three parts: whether the document is (1) factually 

sufficient; (2) legally sufficient; and (3) filed for an improper purpose. Id. at 635, 442 

S.E.2d at 365. “A violation of any one of these requirements mandates the imposition 

of sanctions under Rule 11.” Id. at 635, 442 S.E.2d at 365. “The totality of the 

circumstances determine[s] whether Rule 11 sanctions are merited.” Williams v. 

3 Plaintiffs seemingly withdrew their Rule 60 Motion during the hearing and requested the 

trial court, instead, grant an order of specific performance. The trial court did not rule on the Rule 60 

Motion but granted the request for specific performance and denied Defendants’ Rule 11 Motion. 

Finding no case law indicating a withdrawn motion renders a motion for sanctions moot, we review 

the merits of Defendants’ argument. 
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Opinion of the Court

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Hinton, 127 N.C. App. 421, 423, 490 S.E.2d 239, 241 (1997). 

“In determining factual sufficiency, we must decide ‘(1) whether the plaintiff 

undertook a reasonable inquiry into the facts and (2) whether the plaintiff, after 

reviewing the results of his inquiry, reasonably believed that his position was well 

grounded in fact.’” In re Thompson, 232 N.C. App. 224, 230, 754 S.E.2d 168, 173 

(2014) (citation omitted). As for legal sufficiency, this Court is required to first “look 

at ‘the facial plausibility of the [motion] and only then, if the [motion] is implausible 

under existing law, to the issue of whether to the best of the signer’s knowledge, 

information, and belief formed after reasonable inquiry, the [motion] was warranted 

by existing law.’” Id. at 230, 754 S.E.2d at 173 (emphasis added) (citation omitted). 

“An objective standard is used to determine whether a [motion] has been interposed 

for an improper purpose, with the burden on the movant to prove such improper 

purposes.” Id. at 230, 754 S.E.2d at 173 (citation and internal quotation marks 

omitted). 

First, Defendants argue Plaintiffs’ Rule 60 Motion is not factually sufficient 

because there was no “mutual mistake” in the Consent Order, the parties agreed on 

how to interpret the Consent Order and the closing mechanics, there was no newly 

discovered evidence presented by Plaintiffs, and no extraordinary circumstances were 

alleged. After a thorough review of the Rule 60 Motion, the Record, and the hearing 

transcripts, we conclude Plaintiffs undertook a reasonable inquiry of the facts and 

believed their position was well grounded in those facts. Further, the contents of the 
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Opinion of the Court

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Rule 60 Motion are supported by the Record. See In re Thompson, 232 N.C. App. at 

230, 754 S.E.2d at 173. 

Second, Defendants argue Plaintiffs’ Rule 60 Motion is not legally sufficient 

because Plaintiffs could not have reasonably believed a “mutual mistake” existed 

between the parties. Evidence in the Record, however, supports Plaintiffs’ belief that 

both parties were mistaken about the closing date. First, there is evidence Plaintiffs 

were diligently working through the month of August. Plaintiffs corresponded with 

the lender regarding outstanding documents, Plaintiffs had scheduled a closing for 

12 August 2021, and based on the email evidence in the Record, Plaintiffs’ 

communications did not evince a concern that closing on 10 September 2021 would 

be an issue. While Plaintiffs could have been more prompt by not waiting until 8 

September 2021 to communicate that closing would not occur until 10 September 

2021, it is not apparent that they knew of Defendants’ intention to firmly interpret 

the closing date. Further, because we affirmed the trial court’s March Order 

interpreting the Consent Order as a court-approved real estate contract, which would 

provide a reasonable time for closing the property purchase, we also hold the Rule 60 

Motion was legally sufficient. See In re Thompson, 232 N.C. App. 224, 230, 754 S.E.2d 

168, 173. 

Third, Defendants argue the Rule 60 Motion was interposed for improper 

purposes of harassing Defendants and needlessly costing them attorneys’ fees. We 

see no evidence of this in the Record nor have Defendants adequately shown improper 
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Opinion of the Court

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purposes. See In re Thompson, 232 N.C. App. 224, 230, 754 S.E.2d 168, 173 (the 

burden is on the moving party to show a Rule 60 motion was filed for improper 

purposes). 

Having found Plaintiffs’ Rule 60 Motion was factually sufficient, legally 

sufficient, and not filed for improper purposes, we therefore conclude the trial court 

did not err in denying Defendants’ Rule 11 Motion. See Dodd, 114 N.C. App. at 635, 

442 S.E.2d at 365.

IV. Conclusion

The trial court did not err in interpreting the Consent Order as a courtapproved contract, interpreting the Consent Order as allowing for performance in a 

reasonable amount of time, granting specific performance in favor of Plaintiffs, or 

denying Defendants’ Rule 11 Motion. For the foregoing reasons, we hold the trial 

court did not err in granting Plaintiffs’ Countermotion for Specific Performance.

AFFIRMED.

Judges DILLON and WOOD concur.