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Normile v. Miller - 63 N.C. App. 689, 306 S.E.2d 147 (1983)


A motion for summary judgment is an attempt by a party to avoid the necessity of trial by exposing a fatal weakness in the claim or defense of his opponent. The moving party has the burden of establishing that there is no genuine issue as to any material fact, entitling him to judgment as a matter of law. This motion requires the movant and the opponent to produce a forecast of the evidence he will present at trial.


Defendant Miller was the owner of the Oakland Avenue real property and that she listed it for sale with a realtor, Gladys Hawkins. Richard Byer, a real estate broker with the firm Gallery of Homes, showed the property to plaintiffs Normile and Kurniawan on 4 August 1980 who made a written offer to purchase on the same date. The offer was promptly delivered to defendant Miller who made several changes in the terms of the sale, such as, the amount of the binder ($100 to $500), the amount of the down payment ($875 to $1,000), and the term of the purchase money financing (25 years to 20 years). Miller initialed the changes and signed paragraph 10, the seller's acceptance portion of the document. The broker delivered the counteroffer to Normile at about 8:00 p.m. that evening. Plaintiff Normile expressed disagreement to the new terms.

Early the next morning, the broker Byer went to the home of Larry Segal who signed an offer containing almost the identical terms of Miller's counteroffer to Normile and Kurniawan. Later that day, the broker took the Segal offer to the listing realtor, Gladys Hawkins and advising her of the latest development in the negotiations with Normile and Kurniawan. Subsequently, Miller signed Segal's offer. Around 2:00 p.m., after delivering Segal's offer to Hawkins, Byer informed Normile that Miller had revoked the counteroffer by stating, "you snooze, you lose; the property has been sold." Yet, prior to 5:00 p.m., Normile and Kurniawan initialed Miller's counteroffer and delivered it to Byer's office, along with the required $500.00 binder, despite their actual knowledge that Miller had already sold the property. When Miller refused to convey the property to either party, both prospective buyers filed independent actions seeking specific performance. After the trials were consolidated, each plaintiff made a motion for summary judgment. The trial court denied the motion of Normile and Kurniawan but granted Segal's motion for summary judgment, ordering Miller to specifically perform the contract to convey to Segal.


Did a seller's counteroffer constitute a binding and enforceable option contract to sell land?




The court affirmed the superior court's order denying Normile's motion for summary judgment against the seller. By accepting Segal's offer to convey the property, Miller revoked her offer to Normile and Kurniawan. Once they received notice from Byer that the property had been sold, the revocation became effective and their power to accept Miller's counteroffer was terminated. Thus, their subsequent signing of the counteroffer and its delivery to the realtor's office was an insufficient attempt to bind Miller to the contract. We hold that since only Segal entered into a binding contract to purchase from Miller, the trial court properly granted his motion for summary judgment and properly denied the motion made by Normile and Kurniawan.

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