UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-1350

JAMES K. SANDERFORD,

Plaintiff - Appellant,

v.

DUPLIN LAND DEVELOPMENT, INC.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Greenville. Malcolm J. Howard, 

Senior District Judge. (7:10-cv-00230-H)

Argued: May 16, 2013 Decided: July 2, 2013

Before DUNCAN and KEENAN, Circuit Judges, and David C. NORTON, 

United States District Judge for the District of South Carolina, 

sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Samuel B. Potter, BROADWELL, PHILLIPS & POTTER, PLLC, 

Wrightsville Beach, North Carolina, for Appellant. Reginald 

Bernard Gillespie, Jr., WILSON & RATLEDGE, PLLC, Raleigh, North 

Carolina, for Appellee. ON BRIEF: George L. Fletcher, Aimee L. 

Ezzell, FLETCHER, RAY & SATTERFIELD, L.L.P., Wilmington, North 

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM: 

James K. Sanderford appeals the district court’s order 

granting summary judgment to Duplin Land Development, Inc.

(“DLD”) on his claims for specific performance, unfair and 

deceptive trade practices, fraud, and violation of the 

Interstate Land Sales Full Disclosure Act. For the reasons that 

follow, we affirm the judgment of the district court. 

I.

In 2006, Sanderford signed a lot reservation agreement to 

reserve a parcel of land in the “Bluffs” section of River 

Landing, a residential development owned by DLD in Duplin 

County, North Carolina. Sanderford was subsequently informed

that environmental testing had uncovered the presence of fecal 

coliform bacteria in the groundwater and some soil samples in

the Bluffs. DLD advised Sanderford that he could not enter into 

a formal lot purchase contract until the fecal coliform had

deteriorated to acceptable levels.

DLD retained the Clark Group to conduct an environmental 

assessment. In February 2007, the Clark Group delivered a 

report to DLD, finding that the Bluffs would be suitable for 

residential development pending the completion of a natural 

degradation process associated with fecal coliform. Based on 

this finding, DLD decided to allow those with existing lot 
3

reservation agreements to enter into purchase contracts even 

though the fecal contamination had not sufficiently subsided.

DLD believed that the fecal contamination levels would degrade 

with time and the lots would be suitable for construction by the 

fall.

Sanderford received a proposed lot purchase agreement that

contained an “Addendum B.” Addendum B disclosed that fecal 

coliform was present in the Bluffs because, among other reasons,

it had been used as a swine production facility. Addendum B 

further provided that no construction activities would commence

until the Clark Group, or another qualified environmental 

consulting firm, undertook additional sampling and testing and 

issued a “Confirmatory Report” that the fecal coliform levels

had degraded to acceptable levels. Addendum B contained the 

following remedy provision:

If, the Seller does not receive the 

Confirmatory Report and notify Purchaser of 

the same by November 1, 2007, then the 

Seller and Purchaser will agree to (1) 

terminate the Contract and return all monies 

deposited, thereby mutually releasing the 

Seller and Purchaser from all obligations; 

or (ii) to the extent available, Seller will 

allow the Purchaser to apply the full 

purchase price of the Lot to another lot 

within River Landing and will pay the same 

closing costs in such transaction as Seller 

paid at the original purchase of the Lot all 

as shown on the Settlement Statement for the 

closing on the Lot. (iii) Seller will return 

all monies, including all closing cost[s] to 

Purchaser. This provision shall survive the 
4

closing of the transaction contemplated 

herein.1

J.A. 468-69.2

Along with the proposed lot purchase agreement, Sanderford 

received a HUD Property Report. Like Addendum B, the HUD Report 

disclosed that “[f]ecal coliform was found in some surface and 

ground water, in one soil sample and in a high concentration in 

the mulch on the property.” J.A. 432. Also like Addendum B, 

the HUD Report advised purchasers that they “will not be 

permitted to commence construction activities on any lots within 

the Bluffs until [DLD] obtain[s] a written report from a 

consultant indicating that the previously identified fecal 

coliform has degraded to an acceptable level.” Id.

Notwithstanding the known presence of fecal coliform in the 

Bluffs, Sanderford executed his lot purchase agreement. Closing 

took place in September 2007, with DLD paying the closing costs 

and fees.

Meanwhile, the Clark Group continued to monitor fecal 

colofirm levels by taking water and soil samples at the Bluffs.

However, according to Sanderford, the Clark Group discontinued

 1 Subsection (iii) was added as a handwritten notation by 

Sanderford.

2 Citations to the “J.A.” refer to the Joint Appendix filed 

by the parties in this appeal.
5

its sampling activities after May 2007, at which point DLD

conducted its own “in-house” testing.3

In October 2007, the Clark Group was satisfied that the 

fecal coliform levels at the Bluffs had subsided. The Clark 

Group compiled its findings in a report to the Division of Water 

Quality (“DWQ”) of the North Carolina Division of Environment 

and Natural Resources. DWQ reviewed the Clark Group’s report 

and determined that contamination levels were “substantially 

lower” than when first discovered. DWQ concluded that “the most 

recent surface water samples are compliant with established 

standards and only one monitoring well showed slightly above 

groundwater standards. The current conditions indicate that no 

additional monitoring is needed at this time and the matter can 

be considered closed.” J.A. 471. 

On October 31, 2007, DLD mailed letters informing those 

with lot purchase contracts in the Bluffs that it had received a 

“Confirmatory Report” from DWQ. DLD additionally advised 

 3 DLD explains that having the Clark Group perform all of 

the sampling activities became cost prohibitive. Beginning in 

August 2007, DLD instructed employees of a sister company to 

assist the Clark Group in drawing water from test wells in the 

Bluffs. The samples were submitted to a lab, after which the 

lab results were given to the Clark Group for analysis. 

Appellee’s Br. 13; see also J.A. 387-88 (Aff. of Stephen L. 

Clark). 
6

purchasers that their properties were suitable for construction. 

Sanderford did not receive the letter until November 3, 2007. 

Nearly a year later, beginning in September 2008, 

Sanderford sent letters to DLD demanding a full refund of all 

payments. The letters went unanswered. Over two years later, 

on November 28, 2010, Sanderford filed suit in federal district 

court. 

II.

We review a grant of summary judgment de novo, applying the 

same standards as the district court. Hardwick ex rel. Hardwick 

v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). In reviewing a 

grant of summary judgment, we view all facts and reasonable 

inferences drawn therefrom in the light most favorable to the 

nonmoving party. PBM Prods., LLC v. Mead Johnson & Co., 639 

F.3d 111, 119-20 (4th Cir. 2011). Summary judgment is 

appropriate if there is no genuine issue of material fact and 

the movant is entitled to judgment as a matter of law. Fed. R. 

Civ. P. 56(a); Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Cir. 

2013). 

III.

Sanderford contends the district court erred in granting 

summary judgment to DLD on all claims.
7

A.

First, Sanderford argues that the district court erred in 

granting summary judgment to DLD on his claim for specific 

performance of Addendum B. DLD counters that Addendum B 

constitutes an unenforceable “agreement to agree.” 

To claim a right to specific performance under North 

Carolina law, a claimant must initially establish the existence 

of a valid contract. Munchak Corp. v. Caldwell, 273 S.E.2d 281, 

285 (N.C. 1981). A contract is only valid if the contracting 

parties “have agreed on all material terms of the contract.” 

Boyce v. McMahan, 208 S.E.2d 692, 695 (N.C. 1974). “It is well 

settled that a contract ‘leaving material portions open for 

future agreement is nugatory and void for indefiniteness.’” 

Cnty. of Jackson v. Nichols, 623 S.E.2d 277, 279 (N.C. Ct. App. 

2005) (quoting Boyce, 208 S.E.2d at 695). “If any portion of 

the proposed terms is not settled, or no mode agreed on by which 

they may be settled, there is no agreement.” Boyce, 208 S.E.2d 

at 695 (emphasis added) (internal quotation marks omitted). 

Here, Addendum B provides that if the purchaser is not 

notified by November 1, 2007 that DLD received a Confirmatory 

Report, then the seller and purchaser “will agree” to either

terminate the contract and return all monies deposited or allow 

the purchaser to apply the purchase price of the lot to another 

lot within River Landing, to the extent available. The clear 
8

and unambiguous language of the contract shows that the parties 

agreed to agree on one of two options, rather than on a 

definitive remedy.4 Addendum B contains no method for a court to 

determine which remedy to apply in the event of a breach. It is 

an unenforceable contract because it fails to specify all 

material terms. See N.C. Nat’l Bank v. Wallens, 217 S.E.2d 12, 

15 (N.C. Ct. App. 1975). 

Sanderford refers to the HUD Report as contemporaneous 

evidence of the parties’ intent to agree on a particular remedy. 

However, the HUD Report simply refers to the choice of remedies 

in Addendum B. See J.A. 432 (HUD Report reference to Addendum 

B); J.A. 456 (HUD Report’s listing of same options as Addendum 

B). 

Because it is lacking in mutual assent on all essential

terms, Addendum B is an unenforceable agreement to agree.

Therefore, the district court did not err in granting summary 

judgment to DLD on Sanderford’s claim for specific performance

of Addendum B.

 4 We refer to two, rather than three, potential remedies in 

Addendum B because the third subsection added as a handwritten 

notation by Sanderford is duplicative of the language found in 

subsection (i). See supra note 1 and accompanying text. 
9

B.

Second, Sanderford argues that the district court erred in 

holding that DLD did not breach the notice requirement found in 

Addendum B. As stated above, Addendum B is an unenforceable 

contract; therefore, DLD cannot be found to have breached its 

provisions.

Even if Addendum B were an enforceable contract, we find 

that DLD substantially fulfilled its obligation to provide 

notice of its receipt of the Confirmatory Report by November 1, 

2007. “In order for a breach of contract to be actionable it 

must be a material breach, one that substantially defeats the 

purpose of the agreement or goes to the very heart of the 

agreement, or can be characterized as a substantial failure to 

perform.” Long v. Long, 588 S.E.2d 1, 4 (N.C. Ct. App. 2003) 

(emphasis added). On October 31, 2007, DLD sent notice that it 

had received a Confirmatory Report and that the Bluffs was 

suitable for construction. This notice was received by 

Sanderford a mere two days after the deadline. DLD

substantially complied with its obligation to notify purchasers 

that the fecal coliform levels had subsided and construction 

activities could commence.5

 5 Moreover, Sanderford has not provided any explanation for 

why he was prejudiced by a two-day delay in receiving the notice 

letter.
10

For these reasons, we agree with the district court that 

Sanderford did not breach Addendum B and that Sanderford is not 

entitled to specific enforcement of the contract. 

C.

Third, Sanderford contends that the district court erred in 

granting summary judgment to DLD on his claims for fraud and 

unfair and deceptive trade practices.

The elements of a claim for fraud under North Carolina law 

include a showing that the defendant made a false representation 

or concealment of a material fact and harbored an intent to 

deceive. Whisnant v. Carolina Farm Credit, 693 S.E.2d 149, 156-

57 (N.C. Ct. App. 2010). Similarly, the elements of a claim for 

unfair and deceptive trade practices include a showing that the 

defendant performed acts that possess a tendency or capacity to 

mislead or create a likelihood of deception. Overstreet v. 

Brookland, Inc., 279 S.E.2d 1, 7 (N.C. Ct. App. 1981). 

In support of his claims, Sanderford alleges that DLD

misrepresented that the Clark Group would conduct all sampling 

and monitoring activities at the Bluffs. Yet, DLD never 

promised that the Clark Group would conduct all sampling or that 

a wholly “independent” group would conduct sampling; to the 

contrary, Addendum B states that the Clark Group, “or other 

qualified consulting firm,” would undertake sampling until fecal 
11

coliform levels degraded to an acceptable level. J.A. 343

(emphasis added). Sanderford makes no argument why the sampling 

performed by employees of DLD’s sister company was inadequate. 

Moreover, the Clark Group was involved in the monitoring and 

assessment of fecal coliform levels at all relevant times, 

reviewing the lab results from samples drawn by the sister 

company’s employees. It was the Clark Group that submitted its 

findings to DWQ and precipitated the Confirmatory Report. 

Sanderford also contends that DLD misrepresented that it 

received a satisfactory Confirmatory Report from DWQ, since 

DWQ’s letter mentions that “one monitoring well showed slightly 

above groundwater standards.” J.A. 471. The fact that one well 

showed slight contamination did not stop DWQ from indicating 

that “no additional monitoring is needed” and considering the 

matter “closed.” Id. The letter from DWQ complies on all fours 

with DLD’s promise in Addendum B to present a Confirmatory 

Report indicating that fecal coliform levels had “degraded to an 

acceptable level.” J.A. 469. DLD fairly represented DWQ’s 

analysis in its letter to Sanderford and properly advised 

Sanderford that his property was “suitable for construction.” 

J.A. 473.

Sanderford has failed to establish any false

representations or concealment of material facts made by DLD; 

intent to deceive on the part of DLD; or acts by DLD possessing 
12

a tendency or capacity to mislead performed by DLD. Therefore, 

the district court properly granted summary judgment on 

Sanderford’s claims for fraud and unfair trade practices. 

D.

Finally, Sanderford contends that the district court erred 

in granting summary judgment to DLD on his claim for violation 

of the Interstate Land Sales Full Disclosure Act (“ILSFDA”). 

The ILSFDA “is a remedial statute enacted to prevent 

interstate land fraud and to protect unsuspecting and illinformed investors from buying undesirable land.” Long v. 

Merrifield Town Ctr. Ltd. P’ship, 611 F.3d 240, 244 (4th Cir. 

2010). “To this end, the statute requires that specified 

disclosures be made prior to a purchaser’s execution of a sales 

contract.” Id. The Act provides disclosures requirements, 15 

U.S.C. § 1703(a)(1), and anti-fraud provisions, 15 U.S.C. §

1703(a)(2). Sanderford only proceeds under § 1703(a)(2).

While a claim for common law fraud and a claim for 

violation of the ILSFDA’s anti-fraud provisions are not 

identical, they share the common requirement that Sanderford 

prove DLD made material misrepresentations or omissions 
13

concerning its sale of land.6 As detailed above, Sanderford has 

not shown that DLD’s actions amounted to fraud because he fails 

to set forth any evidence of false representations or 

concealment of material facts by DLD. We therefore hold that 

the district court did not err in granting summary judgment to 

DLD on Sanderford’s ILSFDA claim.

IV.

Based on the foregoing, we affirm the judgment of the 

district court.

AFFIRMED.

 6 Each of Sanderford’s assertions that DLD violated the 

ILSFDA rests on a claim that DLD made a material

misrepresentation or omission. See Compl. ¶ 67.