IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-790

No. COA22-391

Filed 6 December 2022

Chatham County, No. 21 CVS 322

RICKY SPOON BUILDERS, INC, Plaintiff,

v.

EMGEE LLC, Defendant.

Appeal by Plaintiffs from order entered 21 February 2022 by Judge Alyson 

Adams Grine in Chatham County Superior Court. Heard in the Court of Appeals 4 

October 2022.

Harris Sarratt & Hodges, LLP, by Donald J. Harris, for Plaintiffs-Appellants.

Wyrick Robbins Yates & Ponton LLP, by Charles George and Mary Kate 

Gladstone, for Defendant-Appellee.

COLLINS, Judge.

¶ 1 Ricky Spoon Builders, Inc., Ricky Spoon, and Melissa K. Spoon (collectively, 

“Plaintiffs”) appeal from the trial court’s order granting summary judgment for 

EmGee LLC (“Defendant”). Plaintiffs argue that the trial court erred by granting 

Defendant’s motion for summary judgment because Plaintiffs either fully complied or 

substantially complied with the parties’ Agreement. As Plaintiffs did not fully or 

substantially comply with the Agreement, we affirm. 
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I. Procedural History and Factual Background

¶ 2 Plaintiffs owned approximately 150 acres of real property in Chatham County, 

North Carolina (“Property”). On 15 August 2014, Plaintiffs and Defendant entered 

into a memorandum of understanding whereby the parties agreed, among other 

things, that Defendant would acquire title to the Property and convey it to a newly 

created LLC, jointly owned by Plaintiffs and Defendant. When the parties disagreed 

about whether they had complied with the memorandum of understanding, litigation 

ensued.

¶ 3 After mediation, the parties entered into an Agreement, which allowed both 

parties the opportunity to buy the Property under certain terms, including the 

following:

The Initial Offer: Either Party may make a one-time, all 

cash offer to purchase the [Property] (the “Initial Offer”). 

The Initial Offer shall be in writing and shall set forth the 

purchase price at which the Party making the offer (the 

“Offering Party”) is willing and able to close. At the same 

time it submits its Initial Offer to the other party (the 

“Receiving Party”), the Offering Party shall deposit a 

non-refundable earnest money deposit in the amount of 

One Hundred Thousand Dollars ($100,000.00) with 

Investors Title Insurance Company–Chapel Hill Branch, 

which shall serve as a third-party escrow agent (the 

“Escrow Agent”).

The Response Offer: If the Offering Party makes an Initial 

Offer as set forth in subsection (a), the Receiving Party may 

then exercise a one-time absolute right to purchase the 

[Property] (the “Response Offer”). The Response Offer 

shall exceed the Initial Offer by One Hundred Thousand 
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Dollars ($100,000.00) and shall be submitted to the 

Offering Party in writing within ten (10) days of the 

Receiving Party’s receipt of the Initial Offer and 

confirmation from Escrow Agent that it has received the 

earnest money deposit from the Offering Party. 

Simultaneous with submission of the Response Offer to the 

Offering Party, the Receiving Party shall deposit a nonrefundable earnest money deposit in the amount of One 

Hundred Thousand Dollars ($100,000.00) with the Escrow 

Agent. Once the Receiving Party has submitted its 

Response Offer, the Offering Party may not increase its 

Initial Offer. After confirming receipt of the Receiving 

Party’s earnest money deposit, the Escrow Agent will 

release and return Offering Party’s earnest money deposit 

to it. 

. . . .

Expiration: The Buy-Sell Agreement expires at 5 pm EST 

on November 3, 2020. In no event shall the Receiving Party 

have less than ten days to respond to an Initial Offer that 

is made prior to the expiration date and time. Upon 

expiration of the Buy-Sell Agreement, any and all rights 

and responsibilities of the Parties under the Buy-Sell 

Agreement . . . are terminated. 

. . . .

7. Time of Essence: The Parties agree that time is of the 

essence with regard to this Agreement and the 

transactions and events contemplated hereby.

Of particular relevance in this case are the following terms: “At the same time it 

submits its Initial Offer to the other party (the “Receiving Party”), the Offering Party 

shall deposit a non-refundable earnest money deposit in the amount of One Hundred 

Thousand Dollars ($100,000.00) with Investors Title Insurance Company–Chapel 

Hill Branch”; the Agreement expires “at 5 pm EST on November 3, 2020”; and “[t]he 
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Parties agree that time is of the essence with regard to this Agreement and the 

transactions and events contemplated hereby.”

¶ 4 On the afternoon of 2 November 2020, Ricky Spoon wired $100,000 in earnest 

money into Plaintiffs’ counsel’s trust account. The funds cleared on 3 November 2020, 

and Plaintiffs’ counsel drew a check from his trust account made payable to Investors 

Title Insurance. At 3:52 p.m. that day, Plaintiffs, through their counsel, submitted a 

written Initial Offer via email to Defendant, through its counsel. Shortly thereafter, 

Plaintiff Ricky Spoon hand-delivered the written Initial Offer to Defendant’s counsel. 

¶ 5 Yvonne Rodriguez Sanchez, a legal assistant for Plaintiffs’ counsel, called 

Wells Fargo and was told that the bank was closed to walk-in customers due to 

COVID-19 and that an appointment was required to wire the funds to Investors Title. 

Sanchez was also told that there were no appointments available that afternoon.

¶ 6 At some point that afternoon, Plaintiffs’ counsel spoke with Gina Webster, the 

Vice President of Escrow and Settlement Operations for Investors Title. Plaintiffs’

counsel asked Webster whether Investors Title would accept a check drawn from his 

firm’s trust account; Webster confirmed that it would. At that time, Webster did not 

have a copy of the Agreement or Escrow Addendum. Plaintiffs’ counsel testified that 

he was told Investors Title was closed. Webster submitted an affidavit in which she 

averred that she generally recalled speaking with Plaintiffs’ counsel, but she did not 

recall him asking whether he could hand-deliver a check to the office. Shortly after 
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4:00 p.m., Plaintiffs’ counsel put the earnest money check into an envelope and placed 

it in the mail at the post office near his office.

¶ 7 On 4 November 2020, Plaintiffs’ counsel and Defendant’s counsel exchanged a 

series of emails, which included the following from Defendant’s counsel at 9:41 p.m.:

As of 2:00 today, Titles Investor (sic) had not received

Spoon’s funds as required to be deposited by 5:00 on 11/3. 

The Settlement Agreement was created 90 days ago, and 

each party knew and agreed to the timelines. “Time is of 

the essence” was part of the agreement, to make certain 

that time lines were strictly adhered to and enforced. 

The Agreement expired at 5:00 pm on 11/3 at 5:00 (sic). No 

money was deposited with the Escrow agent by that time. 

Since the Settlement Agreement expired at 5:00 pm 

yesterday, the parties no longer have any obligations to 

each other under the Settlement Agreement. Your client 

was well-aware of the deadlines, even to the point of 

driving to Raleigh on 11/3 to personally deliver his offer to 

purchase to me, as counsel for EmGee. Instead of timely 

depositing his $100,000 directly with Investors Title, he 

chose to wire funds to you. And your check, not certified, 

were not a deposit of readily available, non-refundable 

funds, as required. As such, Spoon has not made a timely 

offer per the Agreement, and our client has no further 

obligations to him. Title to the [Property] remains with 

Emgee, LLC. 

The envelope containing the earnest money check was post-marked 5 November 2020 

and was not received by Investors Title until 16 November 2020.

¶ 8 When Defendant refused to close on the sale of the Property, Plaintiffs filed 

suit for breach of contract, breach of covenant of good faith and fair dealing, specific 

performance, and unjust enrichment. Plaintiffs and Defendant filed competing
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motions for summary judgment; Plaintiffs subsequently withdrew their motion. 

After a hearing, by written Order entered 21 February 2022, the trial court granted 

summary judgment for Defendant. Plaintiffs timely appealed.

II. Discussion

¶ 9 Plaintiffs argue that the trial court erroneously granted summary judgment 

for Defendant because “Plaintiffs fully or substantially complied with the terms of 

the Agreement by . . . depositing a non-refundable earnest money deposit in the 

amount of One Hundred Thousand Dollars ([$]100,000.00) with Investors Title 

Insurance Company by posting with the USPS prior to 5:00 p.m. on November 3, 

2020, a $100,000.00 check written from Plaintiffs’ counsel’s firm trust account and 

made payable to Investors Title Insurance Company.”

¶ 10 We review a trial court’s order granting summary judgment de novo. Proffitt 

v. Gosnell, 257 N.C. App. 148, 151, 809 S.E.2d 200, 203 (2017). Under de novo review, 

this Court “considers the matter anew and freely substitutes its own judgment for 

that of the lower [court].” Blackmon v. Tri-Arc Food Sys., Inc., 246 N.C. App. 38, 41, 

782 S.E.2d 741, 743 (2016) (quotation marks and citations omitted). 

¶ 11 Summary judgment is appropriate “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2021). The party 
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moving for summary judgment 

bears the burden of showing that no triable issue of fact 

exists. This burden can be met by proving: (1) that an 

essential element of the non-moving party’s claim is 

nonexistent; (2) that discovery indicates the non-moving 

party cannot produce evidence to support an essential 

element of his claim; or (3) that an affirmative defense 

would bar the [non-moving party’s] claim. Once the 

moving party has met its burden, the non-moving party 

must forecast evidence demonstrating the existence of a 

prima facie case. 

CIM Ins. Corp. v. Cascade Auto Glass, Inc., 190 N.C. App. 808, 811, 660 S.E.2d 907, 

909 (2008) (citations omitted). 

A. Full Compliance

¶ 12 Plaintiffs first argue that they fully complied with the terms of the Agreement 

because the “mailing of the Escrow Deposit to Investors Title constituted a ‘deposit’ 

as contemplated by the terms of the [Agreement].”

¶ 13 “Whenever a court is called upon to interpret a contract[,] its primary purpose 

is to ascertain the intention of the parties at the moment of its execution.” Lane v. 

Scarborough, 284 N.C. 407, 409-10, 200 S.E.2d 622, 624 (1973) (citations omitted). 

“When a contract is in writing and free from any ambiguity which would require 

resort to extrinsic evidence, or the consideration of disputed fact, the intention of the 

parties is a question of law. The court determines the effect of their agreement by 

declaring its legal meaning.” Id. at 410, 200 S.E.2d at 624 (citations omitted). 
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“Further, in interpreting a contract, the common or normal meaning of language will 

be given to the words of a contract unless the circumstances show that in a particular 

case a special meaning should be attached to it.” S.N.R. Mgmt. Corp. v. Danube 

Partners 141, LLC, 189 N.C. App. 601, 620, 659 S.E.2d 442, 455 (2008) (quotation 

marks and citation omitted).

¶ 14 Here, the relevant portions of the Agreement are free from ambiguity. The

Agreement provides that either party may make a written Initial Offer and that at 

the same time the Offering Party submits its Initial Offer to the Receiving Party, “the 

Offering Party shall deposit a non-refundable earnest money deposit in the amount 

of One Hundred Thousand Dollars ($100,000.00) with Investors Title Insurance 

Company–Chapel Hill Branch . . . .” The Agreement also explicitly “expires at 5 pm 

EST on November 3, 2020.”

¶ 15 The term “deposit with” as used in the Agreement’s term “deposit . . . with

Investor’s Title” is not defined in the Agreement. The verb “deposit”1 is defined as 

“[t]he act of giving money or other property to another who promises to preserve it or 

to use it and return it in kind; esp., the act of placing money in a bank for safety and 

 

1 Not to be confused with the noun “deposit” used in the Agreement’s term “earnest 

money deposit.” An earnest money deposit is “[a] deposit paid (often in escrow) by a 

prospective buyer (esp. of real estate) to show a good-faith intention to complete the 

transaction, and ordinarily forfeited if the buyer defaults.” Earnest Money, Black’s Law 

Dictionary (11th ed. 2019). The parties do not argue about the significance of this term.
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convenience.” Deposit, Black’s Law Dictionary (11th ed. 2019). The preposition

“with” is generally defined as “in the care, guidance, or possession of[.]” Webster’s 

Third New International Dictionary 2626 (2002). Taken together, the term “deposit 

with” means “giving or placing in the care, guidance, or possession of.” Accordingly, 

the Agreement required Plaintiffs, as the Offering Party, to give or place the earnest 

money in the care, guidance, or possession of Investors Title Insurance Company–

Chapel Hill Branch at the same time they submitted their Initial Offer to Defendant, 

and no later than “5 pm EST on November 3, 2020[,]” when the Agreement expired. 

¶ 16 Here, by placing the earnest money check drawn on Plaintiffs’ counsel’s trust 

account into the mail on 3 November 2020 around 4:00 p.m., Plaintiffs did not give or 

place a non-refundable earnest money deposit in the amount of One Hundred 

Thousand Dollars ($100,000.00) in the care, guidance, or possession of Investors Title 

Insurance Company–Chapel Hill Branch at the same time they submitted their 

Initial Offer to Defendant and before the expiration of the Agreement “at 5 pm EST 

on November 3, 2020.” Accordingly, Plaintiffs failed to fully comply with the

Agreement.

B. Substantial Performance

¶ 17 Plaintiffs next argue that if “mailing the Escrow Deposit did not constitute full 

compliance with the terms of the [Agreement] under the circumstances existing as of 
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November 3, 2020, then [it] certainly constituted substantial performance.”2

¶ 18 North Carolina recognizes the equitable doctrine of substantial performance, 

which “allow[s] a party to recover on a contract although [it] has not literally complied

with its provisions.” Cator v. Cator, 70 N.C. App. 719, 722, 321 S.E.2d 36, 38 (1984) 

(citations omitted). “[T]he doctrine was conceived for use in a situation where the 

[]plaintiff has given the []defendant a substantial portion of that for which he 

bargained and the performance is of such a nature that it cannot easily be returned.” 

Black v. Clark, 36 N.C. App. 191, 195, 243 S.E.2d 808, 811 (1978) (citation omitted). 

While building and construction contracts readily lend themselves to the application 

of the doctrine of substantial performance, the doctrine is not limited in its 

application to those types of contracts. Id. 

¶ 19 A “time is of the essence” clause makes completion dates and times a material 

term of a contract, causing a material breach if performance is late. See Fairview 

Developers, Inc. v. Miller, 187 N.C. App. 168, 173, 652 S.E.2d 365, 369 (2007); see also 

Fletcher v. Jones, 314 N.C. 389, 393 n.1, 333 S.E.2d 731, 734 n.1 (1985). North 

Carolina courts recognize that “[f]reedom of contract is constitutionally guaranteed 

and provisions in private contracts, unless contrary to public policy or prohibited by 

statute, must be enforced as written.” Great Am. Ins. Co. v. C. G. Tate Constr. Co., 

 

2 Plaintiffs use the terms substantial compliance and substantial performance 

interchangeably. We will refer to “substantial performance” in this opinion.
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303 N.C. 387, 391, 279 S.E.2d 769, 772 (1981). Accordingly, the doctrine of 

substantial performance traditionally has not applied where the parties, by the terms 

of their agreement, make it clear that only strict or complete performance will be 

satisfactory. 17A Am Jur 2d Contracts § 603. 

¶ 20 Here, the Agreement includes a “time is of the essence” provision, making the 

time for depositing a non-refundable $100,000 earnest money deposit with Investors 

Title Insurance Company–Chapel Hill Branch and the time for the expiration of the 

Agreement material terms of the Agreement. Accordingly, the parties made it clear 

by the terms of their Agreement that only strict or complete performance would be 

satisfactory, and the doctrine of substantial performance does not apply.

¶ 21 Even were we able to consider tempering the traditional rule by recognizing 

that a “time is of the essence” provision does not automatically render untimely 

performance a breach and will not be enforced if doing so would constitute a forfeiture 

on an otherwise substantially complying party, the doctrine of substantial 

performance does not excuse Plaintiffs’ breach in this case.

¶ 22 The earnest money check was received and deposited by Investors Title 

Insurance Company–Chapel Hill Branch on 16 November 2020, 13 days after the 

expressed expiration of the Agreement. Plaintiffs deposited no portion of the earnest 

money prior to the Agreement’s expiration. As no portion of the earnest money was 

deposited with Investors Title Insurance Company–Chapel Hill Branch prior to the 
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expiration of the Agreement, Plaintiffs did not perform at all, much less substantially 

perform, under the Agreement. See, i.e., Lake Ridge Acad. v. Carney, 66 Ohio St. 3d 

376, 378-79, 613 N.E.2d 183, 185-86 (1993) (holding that there was “no reasonable 

argument that [defendant] ‘substantially complied’ with the provision of the contract 

requiring him to notify [plaintiff] of his child’s withdrawal prior to August 1 . . . when 

[defendant’s] cancellation letter was dated August 1, 1989, mailed or postmarked 

August 7, 1989, and received August 14, 1989”). Moreover, Plaintiffs did not forfeit 

the Property, they merely forfeited the opportunity to potentially purchase it; and 

Plaintiffs’ earnest money was returned to them in full in March 2021, restoring them

to their original position.

¶ 23 Plaintiffs also argue that “whether there has been substantial performance of 

a contract is actually a question of fact for the jury” such that whether Plaintiffs 

substantially complied with the Agreement “was not an appropriate consideration for 

the trial court on summary judgment.” However, the cases cited by Plaintiffs in 

support of their argument all involved some performance by the plaintiff such that 

the jury had to resolve a factual issue. See Clark, 36 N.C. App. at 193, 196, 243 S.E.2d 

at 810, 812; Bryant & Assocs. v. Evans, 224 N.C. App. 397 (2012) (unpublished); 

Almond Grading Co. v. Shaver, 74 N.C. App. 576, 578, 329 S.E.2d 417, 418 (1985); 

Gibson Contractors, Inc. v. Church of God in Christ Jesus of Angier, 165 N.C. App. 

543, 600 S.E.2d 899 (2004) (unpublished). Here, as previously noted, no performance
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was tendered, and thus no triable issue of fact of substantial performance arose for 

the jury.

¶ 24 Accordingly, as Plaintiffs did not perform or substantially perform under the 

Agreement, the trial court did not err by granting Defendant’s motion for summary 

judgment. 

III. Conclusion

¶ 25 As Plaintiffs did not fully or substantially comply with the Agreement, the trial 

court’s order granting summary judgment for Defendant is affirmed.

AFFIRMED.

Judges TYSON and INMAN concur.