Development Enterprises of Raleigh v. Ortiz

ARNOLD, Judge. A contract must be considered as a whole, considering each clause and word with reference to other provisions and giving effect to each if possible by any reasonable construction. State v. Corl, 58 N.C. App. 107, 293 S.E. 2d 264 (1982); see also 4 Williston on Contracts § 619 (3d ed. 1961). When general terms and specific statements are included in the same contract and there is a conflict, the general terms should give way to the specifics. Wood-Hopkins Contracting Co. v. N.C. State Ports Auth., 284 N.C. 732, 202 S.E. 2d 473 (1974); see also 3 Corbin on Contracts § 547 (1960). Section 7 of the Partnership Agreement specifically deals with the death of a partner. Section 19 prohibits the partners from transferring their interests and provides that the remaining partners may purchase such transferred interest at a price determined by a majority vote. The trial court applied section 19 and concluded that defendants were strangers to the partnership agreement. The court further determined that section 19 enabled the remaining partners to purchase Bland’s and McCuiston’s interests from defendants for net book value. The trial court inappropriately applied section 19 to the interests of the deceased partners. While section 19 deals generally with transferred partnership interests, it is section 7 that defines a deceased partner as a defaulting partner and provides that a defaulting partner is entitled to the net value of his interest in *195 the partnership. Therefore, section 7 must be used to determine the value of defendants’ interests. However, section 7 is ambiguous with respect to the term “net value.” When an agreement is ambiguous, it is for the jury to determine the parties’ intent. Asheville Mall, Inc. v. F. W. Woolworth Co., 76 N.C. App. 130, 331 S.E. 2d 772 (1985). Whether “net value” as used in the partnership agreement means net book value or market value is a question for the jury. Thus, we remand the case for a new trial for a jury determination of the meaning of “net value” as used in section 7 of the Partnership Agreement. Defendants contend that they were denied the opportunity to present their claims against plaintiff and the third-party defendants. We disagree. The trial judge asked defendants what evidence they had to support their claims and allowed them to offer proof of their claims for the record. After reviewing the record, we find no evidence in support of defendants’ claims. The trial court did not err in dismissing defendants’ claims against plaintiff and the third-party defendants. Defendants also contend that the trial court erred in denying their motion to amend their answer and counterclaim. We disagree. A motion to amend is directed to the discretion of the trial court. Smith v. McRary, 306 N.C. 664, 295 S.E. 2d 444 (1982). The exercise of the court’s discretion is not reviewable absent a clear showing of abuse. Id. Reasons justifying denial of an amendment are (a) undue delay, (b) bad faith, (c) undue prejudice, (d) futility of amendment, and (e) repeated failure to cure defects by previous amendments. Martin v. Hare, 78 N.C. App. 358, 337 S.E. 2d 632 (1985). Defendants sought to amend their answer and counterclaim in order to deny an earlier admission that plaintiff owned the Walker Street Apartments. The motion was made shortly before trial and approximately two years after the admission had been made. Defendants have not carried their burden of proving that the trial court abused its discretion in denying their motion to amend. *196 We have reviewed defendants’ remaining assignments of error and find them to be without merit. Accordingly, the judgment of the trial court is affirmed with respect to the dismissal of defendants’ claims but remanded for a new trial for a determination of the meaning of “net value” in section 7 of the Partnership Agreement. Affirmed in part, reversed in part and remanded. Judges Wells and ORR concur.