An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA05-24 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2005 HAROLD M. BARBER and LINDA V. SNOW, Plaintiffs, v. ALSTON W. BURKE, Defendant. Pender County No. 03 CVS 240 Appeal by plaintiffs from judgement entered 27 September 2004 and order entered 14 October 2004 by Judge Jay D. Hockenbury in Pender County Superior Court. Heard in the Court of Appeals 25 August 2005. WARD & SMITH, P.A., by Ryal W. Tayloe, for plaintiffs- appellants. Robert W. Kilroy for defendant-appellee. TIMMONS-GOODSON, Judge. Harold M. Barber (“Barber”) and Linda V. Snow (“Snow”) (collectively, “plaintiffs”) appeal the trial court judgment denying their request for specific performance and the trial court order denying their motion for judgment notwithstanding the verdict, or, in the alternative, a new trial. For the reasons discussed herein, we reverse. The facts and procedural history pertinent to the instant appeal are as follows: Sometime in the year 2000, plaintiffs became interested in purchasing and developing several residential beach properties located in the Sea Haven Beach community of NorthTopsail Beach, North Carolina. Plaintiffs planned to first build a residence on one lot, which they could use as a model to show prospective purchasers of other lots. In June 2000, Barber negotiated the purchase of Lot 112. The following day, Barber met with Alston W. Burke (“defendant”) to discuss the sale of an adjacent lot owned by defendant, Lot 111. After settling on a purchase price of $50,000.00, plaintiffs and defendant entered into an Offer to Purchase and Contract on 18 August 2000.The Offer to Purchase and Contract did not contain a specific closing date. Instead, the agreement provided that “[a]ll parties agree to execute any and all documents and papers necessary in connection with closing and transfer of title on or before 2 weeks after permits issued[.]” The agreement further provided that it was conditional upon plaintiffs being “able to obtain [a] building permit prior to closing[,]” and it required defendant to “make application and pay the sewer tap fee” associated with Lot 111 and “transfer [the] sewer tap and pump station to [plaintiffs] at closing.” Defendant secured a sewer tap permit in September 2000 and forwarded it to plaintiffs. Plaintiffs thereafter closed on the sale of Lot 112, as well as the sale of two other lots owned by defendant's brother -- Lot 105 and Lot 107. After receiving the necessary building permits, including one from the Coastal Area Management Authority (“CAMA permit”), plaintiffs began construction of a model residence on Lot 112 in March 2001. In late January or early February 2002, plaintiffs werenearing completion of the construction of the model residence. At that time, Barber invited defendant to inspect the progress of the residence, and he informed defendant that he “was planning on . . . going ahead with closing because [he had received] a lot of interest” regarding Lot 111 during the construction of the residence on Lot 112. After receiving information from the Coastal Area Management Authority that Lot 111 was “buildable,” plaintiffs began the process of securing a CAMA permit for Lot 111 in May 2002. Because defendant also owned the lot neighboring Lot 111, plaintiffs were required to obtain his consent regarding the construction on Lot 111. On 3 June 2000, defendant signed a consent form regarding the construction on Lot 111, and on or about 6 June 2002, plaintiffs received a CAMA permit for the lot. Plaintiffs and defendant scheduled a closing for Lot 111 on 2 August 2002. However, due to the failure of the lending institution to deliver the loan package for the lot, the closing was not completed. Defendant thereafter refused plaintiffs' subsequent offers to close. Defendant informed Barber that “he had incurred extra expenses because [of the] delay[] in closing . . . and . . . he was really angry because [plaintiffs] had closed with his brother, [] had contracted with his brother after him and closed with his brother first.” After defendant continued to refuse plaintiffs' attempts to close, plaintiffs filed a complaint against defendant, asserting that defendant's refusals were unjustified and constituted a breach of contract. Defendant thereafter filed an answer denying plaintiffs' contentions andasserting, inter alia, that plaintiffs “failed to exercise due diligence and waited two years to obtain a building permit” on the lot, “failed to tender the sales price” for closing, and “are equitably estopped from seeking performance on the contract.” The case proceeded to trial the week of 20 September 2004. Following the close of all the evidence, plaintiffs moved the trial court for a directed verdict in their favor. The trial court denied plaintiffs' motion and submitted two issues to the jury. On 22 September 2004, the jury found that defendant breached the contract “by non-performance by failing to convey to [] plaintiffs the lands as required by the contract[.]” However, the jury further found that defendant's failure to perform the material term of the contract was “caused by the conduct of [] plaintiffs[.]” Based upon these findings, the trial court entered a judgment concluding that plaintiffs “are not entitled to specific performance” on the contract. On 7 October 2004, plaintiffs filed a motion for judgment notwithstanding the verdict, or, in the alternative, a new trial. On 14 October 2004, the trial court denied plaintiffs' motion. Plaintiffs appeal._______________________________ The issues on appeal are whether the trial court erred by: (I) denying plaintiffs' motion for directed verdict; (II) submitting the second issue to the jury; and (III) denying plaintiffs' post-trial motions. Plaintiffs first argue that the trial court erred by denying their motion for directed verdict. Plaintiffs assert that they were entitled to judgment in their favor because they were prepared to close the sale of Lot 111 in a “reasonable time” and because defendant never tendered a deed or demanded performance and waived or extended any deadline for
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