Yoder v. Verm

Yoder v. Verm, 

.


STATE OF NORTH CAROLINA                       IN THE GENERAL COURT OF JUSTICE
                                                  SUPERIOR COURT DIVISION
HENDERSON COUNTY                                            23CVS001820-440


DANIEL YODER, M.D.,
                                                  ORDER AND OPINION ON
                       Plaintiff,
                                              PLAINTIFF’S MOTION FOR PARTIAL
v.                                                 SUMMARY JUDGMENT

ALAN VERM, M.D.; LOOKING
GLASS EYE CENTER, P.A.; and
LOOKING GLASS
ENTERPRISES, LLC,

                       Defendants.


     1.     THIS MATTER is before the Court upon Plaintiff Daniel Yoder M.D.’s

(“Plaintiff” or “Dr. Yoder”) Motion for Partial Summary Judgment pursuant to Rule

56 of the North Carolina Rules of Civil Procedure in the above-captioned case (the

“Motion”). 1

     2.     Having considered the Motion, the parties’ briefs in support of and in

opposition to the Motion, the relevant pleadings, the arguments of counsel at the

hearing on the Motion, and other appropriate matters of record, the Court hereby

GRANTS Plaintiff’s Motion as set forth below.

          Searson, Jones, Gottschalk & Cash, PLLC, by W. Scott Jones, Elizabeth
          Newman, and Stephen Lacy Cash, for Plaintiff Daniel Yoder, M.D.

          James, McElroy & Diehl, P.A., by Richard B. Fennell, Jennifer M. Houti,
          Adam L. Ross, and Haley M. Lohr, for Defendants Alan Verm, M.D.,
          Looking Glass Enterprises, LLC, and Looking Glass Eye Center, P.A.

Brown, Judge.


1 (Pl’s. Mot. Partial Summ. J. [hereinafter “Pl’s. Mot.”], ECF No. 70.)
                                            I.

                  FACTUAL AND PROCEDURAL BACKGROUND

    3.   While the Court does not make findings of fact on a motion for summary

judgment, “it is helpful to the parties and the courts for the trial judge to articulate a

summary of the material facts which he considers are not at issue and which justify

entry of judgment.” Collier v. Collier, 

, 161–62 (2010) (citation and

quotation marks omitted). Accordingly, the following background, drawn from the

undisputed evidence submitted by the parties, is intended only to provide context for

the Court’s analysis and ruling and not to resolve issues of material fact.

    4.   Dr.   Yoder    and     Defendant   Alan    Verm,    M.D.   (“Dr.   Verm”)    are

ophthalmologists who once practiced medicine together in western North Carolina as

sole and equal shareholders of Defendant Looking Glass Eye Center, P.A. (“LGEC”). 2

At one time they were also the sole and equal members of Defendant Looking Glass

Enterprises, LLC (“LGE”), which owns a medical office building and real property in

Hendersonville, North Carolina. 3       LGE holds a 72% membership interest in

Healthcare LLC, VII (“Healthcare VII”), which holds the ground lease for and owns

a medical office building (“MOB”) in Brevard, North Carolina, out of which LGEC

operates its Hendersonville medical office (the “Healthcare Building”). 4




2(Settlement Agreement and Mutual Release [hereinafter “Settlement Agreement”] 2.A.,
ECF No. 2 (redacted), ECF No. 60 (unredacted).)

3 (Settlement Agreement 2.H.)


4 (Settlement Agreement 2.H.)
    5.    The current dispute has its origins in the settlement of three mandatory

complex business cases previously before this Court: Looking Glass Eye Center, P.A.

v. Daniel M. Yoder, M.D. (Henderson County Superior Court, Civil Action No. 22-

CVS-1141); Daniel Yoder v. Looking Glass Enterprises, LLC (Henderson County

Superior Court, Civil Action No. 22-CVS-1384); and Daniel Yoder, M.D., individually

and derivatively on behalf of Looking Glass Eye Center, P.A. v. Looking Glass Eye

Center, P.A. and Alan Verm, M.D. (Transylvania County Superior Court, Civil Action

No. 22-CVS-332) (collectively, the “Original Litigation”). 5         Dr. Yoder, Dr. Verm,

LGEC, and LGE were the sole parties to the Original Litigation.

    6.    After engaging in months of extensive, arms-length negotiations in 2022,

the parties to the Original Litigation compromised and settled their differences in

full and final settlement of all matters in controversy. 6 They memorialized the

resolution of the Original Litigation in a written settlement agreement (the

“Settlement Agreement”), 7 which all parties signed in December 2022. 8 Because the

Transylvania County lawsuit contained derivative claims, the Court also approved



5 (See also Verified Compl. ¶ 6, ECF No. 2; Settlement Agreement 1.       The Court may take
judicial notice of the Original Litigation among the parties. See Stocum v. Oakley, 

 (2007) (“Trial courts may properly take judicial notice of its [sic] own records in
any prior or contemporary case when the matter noticed has relevance.”) (citation and
quotation marks omitted).)

6 (See Verm Defs.’ Answer Affirmative Defenses & Countercls. ¶ 8, ECF No. 3 (“It is
specifically admitted that the parties to the Lawsuits reached a settlement following
extensive, arms-length negotiations.”); Settlement Agreement 1.)
7 (Settlement Agreement.)


8 (Settlement Agreement 12.)
the parties’ settlement in that action on 15 December 2022. 9 Pursuant to the terms

of the Settlement Agreement, the parties dismissed all claims in each action with

prejudice, thereby bringing the Original Litigation to an end.

   7.     This current action arises out of Dr. Yoder’s claims that Dr. Verm, LGEC,

and LGE (collectively, “Defendants”) violated terms of the Settlement Agreement.

Specifically, on 28 November 2023, eleven months after this Court’s approval of the

Settlement Agreement, Dr. Yoder filed a five-count Verified Complaint alleging

Defendants have “failed and refused to comply with all of the obligations

imposed . . . by the terms of the Settlement Agreement.” 10 The gravamen of the

current matter before the Court is Dr. Yoder’s fourth claim for breach of contract

against Dr. Verm and LGE for their alleged failure to pay him 36% of the appraised

value of the Healthcare Building per the terms of the Settlement Agreement. 11

   8.     Defendants filed their Answer, Affirmative Defenses, and Counterclaims on

17 January 2024. 12      Dr. Yoder filed his Affirmative Defenses and Reply to the

Counterclaims on 14 February 2024. 13 Defendants then filed a Rule 12(c) Motion for



9 (Verified Compl. ¶¶ 8–9; Order Approving Proposed Settlement Agreement, Transylvania

County Civil Action No. 22-CVS-332, ECF No. 38.)

10 (Verified Compl. ¶ 16.)
                         The Original Litigation, as well as this action when initially filed,
were assigned to former Business Court Chief Judge Louis A. Bledsoe, III. The current action
was reassigned to the undersigned on 10 January 2025 upon Judge Bledsoe’s retirement.
(ECF No. 81.)
11 (Verified Compl. ¶¶ 69–81.)


12 (Verm Defs.’ Answer Affirmative Defenses & Countercls., ECF No. 3.)


13 (Pl.’s Affirmative Defenses & Reply, ECF No. 6.)
Partial Judgment on the Pleadings or, in the alternative for Partial Summary

Judgment (the “Rule 12(c) Motion”) on 18 April 2024. 14

   9.     Defendants ultimately advanced the Rule 12(c) Motion solely to (i) dismiss

Count Four of Plaintiff’s Verified Complaint and (ii) obtain judgment on their

Counterclaim as sought in Paragraph 2(h) of their Prayer for Relief. 15 These claims

reflected the parties’ competing interpretations of two paragraphs in section 2.H.c. of

the Settlement Agreement, which outlined the terms under which Dr. Yoder would

be compensated for Dr. Verm’s purchase of his interest in Healthcare VII. Section

2.H.c. provides, in relevant part, as follows:

        c. Purchase of Yoder’s Interest in Healthcare VII

        Upon receipt of the appraisals of the Healthcare Building, Verm shall
        act promptly and work in good faith and in a commercially reasonable
        manner to effectuate his purchase of Yoder’s membership interest in
        Healthcare VII. More specifically, Verm shall work in good faith with
        ACN to permit Verm to purchase Yoder’s membership interest in
        Healthcare VII for 36% of the appraised fair market value of the
        Healthcare Building and any cash held by that entity, after subtracting
        the amount of any outstanding debts of that entity in existence as of the
        dates of this Agreement, i.e., the Healthcare VII Buyout. Upon Yoder’s
        receipt of such payment, Yoder’s membership interest in Healthcare VII
        shall be considered sold and transferred in full to Verm, and Yoder shall
        be deemed to have resigned from any and all positions or affiliations
        with Healthcare VII, including, but not limited to, as a member, officer,
        director, manager, or agent.

        …



14 (R. 12(c) Mot. Partial J. on Pleadings or, in the alt. Partial Summ. J., ECF No. 19.)


15 (Order & Op. Defs.’ R 12(c) Mot. Partial J. on Pleadings, or in the alt. Partial Summ. J. &

on Pl’s. Objs., ¶¶ 14–16. [hereinafter “Defs.’ 12(c) Order & Op.”], ECF No. 62); see also Not.
Partial Withdrawal Mot., ECF No. 58.)
         Notwithstanding the foregoing, in the event that, during the thirty
         days following the Settlement Date, the Parties confirm that
         ACN intends to market and sell the Healthcare Building, Verm
         shall instead promptly work in a good faith and commercially reasonable
         matter [sic] with ACN to cause Healthcare VII to market and to sell the
         Healthcare Building in a commercially reasonable manner, and upon
         consummation of the sale, Yoder shall be paid net proceeds, plus any
         cash held by that entity at the time of the closing of the sale of the
         Healthcare Building, commensurate with his 36% membership interest
         in Healthcare VII. 16

   10.     Dr. Yoder filed Objections concerning the Rule 12(c) Motion on 7 May 2024

(the “Objections”). 17 The Court held a hearing on Defendants’ Rule 12(c) Motion and

Plaintiff’s Objections on 26 June 2024. 18

   11.     The parties presented diametrically opposing interpretations of section

2.H.c. of the Settlement Agreement in their pleadings, briefs, and at the 26 June

hearing. Plaintiff contended that, under section 2.H.c., he is “‘entitled to 36% of the

appraised value of the Healthcare Building and any cash held by Healthcare VII,

after subtracting the amount of any outstanding debts of Healthcare VII in existence

as of the date of the Settlement Agreement.’” 19 In opposition, Defendants argued that

section 2.H.c. provides that “‘upon the sale of the [Healthcare Building], [Dr.] 

 (Settlement Agreement, Sec. 2.H.c. (emphasis added).)


17 (Pl’s. Objs. Consideration Aff. Jennifer Houti & Premature Consid. Alt. Mot. Partial Summ.

J., ECF No. 31.)

18 (Not Hr’g, ECF No. 29.)


19 (Verified Compl. ¶ 79; Verm Defs. Br. Supp. Rule 12(c) Mot. 9–11, ECF No. 20; Defs.’

12(c) Order & Op. ¶ 16 (emphasis in original).)
is entitled to disbursement of 36% of the net proceeds from the sale plus 36% of the

net cash held by Healthcare LLC, VII at that time, and nothing more.’” 20

   12.     On 10 September 2024, Judge Bledsoe issued an Order and Opinion on

Defendants’ Rule 12(c) Motion for Partial Judgment on the Pleadings (the “12(c)

Opinion”) resolving the Rule 12(c) Motion and the Objections. 21            Judge Bledsoe

concluded Defendants’ arguments and interpretation of section 2.H.c. were

unavailing:

         Based on its careful review of the Settlement Agreement, the Court
         concludes that section 2.H.c. unambiguously provides that, unless the
         parties confirm that ACN intends to market and sell the Healthcare
         Building within thirty days following the Settlement Date, the
         procedure outlined in the first paragraph of section 2.H.c. shall control.
         Here, Dr. Yoder has alleged that “during the thirty days following the
         Settlement Date, the Parties did NOT confirm to Yoder that ACN
         intends to market and sell the Healthcare Building.” Assuming the
         truth of this allegation, Dr. Yoder has successfully pleaded facts that
         require Dr. Verm to purchase his interest in Healthcare VII based on
         36% of the appraised fair market value of the Healthcare Building as set
         forth in the first-quoted paragraph in section 2.H.c. 22

Consequently, Judge Bledsoe denied Defendants’ Rule 12(c) Motion and denied

Plaintiff’s Objections as moot. 23

   13.     In the current Motion, Plaintiff asserts that Judge Bledsoe’s conclusions

denying Defendants’ Rule 12(c) Motion constitute a conclusive and final



20 (Verified Compl. ¶ 8; Verm Defs. Br. Supp. Rule 12(c) Mot. 11–12; Defs.’ 12(c) Order &

Op. ¶ 16 (emphasis in original).)

21 (Defs.’ 12(c) Order & Op.)


22 (Defs.’ 12(c) Order & Op. ¶ 21 (emphasis in original).)


23 (Defs.’ 12(c) Order & Op. ¶ 22.)
determination as to the interpretation of section 2.H.c. of the Settlement Agreement

and, therefore, that the doctrine of collateral estoppel prohibits Defendants from

relitigating that conclusive determination. Hence, Plaintiff moves this Court to enter

partial summary judgment on his contract claim requiring Defendant Verm to pay

Plaintiff 36% of the appraised fair market value of the Healthcare Building per the

terms of the Settlement Agreement and to dismiss Defendants’ Counterclaim set

forth in Paragraph 2(h) of Defendants’ Prayer for Relief. Plaintiff contends he is

entitled to a partial summary judgment ruling against Defendant Verm and LGE

because the “undisputed material facts” show that ACN did not confirm its intention

to market and sell the Healthcare Building within the thirty-day period set forth in

section 2.H.c. of the Settlement Agreement. 24

   14.   After full briefing, the Court held a hearing on Plaintiff’s Motion on 18

February 2025, at which all parties were represented by counsel (the “Hearing”). 25

The Motion is now ripe for resolution.

                                            II.

                                  LEGAL STANDARD

   15.   Summary judgment is appropriate when “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. R. Civ. P. 56(c). In ruling on a motion


24 (Pl’s Mem. Supp. of Pl.’s Mot. Partial Summ. J., 2–4 [hereinafter, “Pl.’s Mem.”], ECF No.

71.)

25 (Am. Not. Hr’g, ECF No. 73.)
for summary judgment, the Court must consider the evidence in the light most

favorable to the nonmoving party, drawing all inferences in the nonmoving party’s

favor. See, e.g., Morrell v. Hardin Creek, Inc., 

 (2018).

   16.   The moving party “bears the initial burden of demonstrating the absence of

a genuine issue of material fact.” Liberty Mut. Ins. Co. v. Pennington, 

 (2002). If the moving party carries this burden, the opposing party “may not rest

upon the mere allegations or denials of his pleading,” N.C. R. Civ. P. 56(e), but must

instead “come forward with specific facts establishing the presence of a genuine

factual dispute for trial,” Liberty Mut. Ins., 

. “An issue is ‘genuine’ if

it can be proven by substantial evidence and a fact is ‘material’ if it would constitute

or irrevocably establish any material element of a claim or a defense.” Lowe v.

Bradford, 

 (1982) (quoting Bone Int’l, Inc. v. Brooks, 

,

374–75 (1981)).

   17.   “When the party with the burden of proof moves for summary judgment, a

greater burden must be met.” Almond Grading Co. v. Shaver, 

(1985). The moving party “must show that there are no genuine issues of fact, that

there are no gaps in his proof, that no inferences inconsistent with his recovery arise

from the evidence, and that there is no standard that must be applied to the facts by

the jury.” Parks Chevrolet, Inc. v. Watkins, 

 (1985); see also

Kidd v. Early, 

 (1976). However, when a party moves for summary

judgment on a claim and properly supports all the essentials elements of that claim

with evidence, and it plainly appears from the pleadings and evidence presented that
the movant is entitled to recover on the claim, summary judgment is proper. N.C. R.

Civ. P. 56(c). Blackwell v. Massey, 

 (1984).

                                          III.

                                      ANALYSIS

   18.    Plaintiff has moved for partial summary judgment under Rule 56 on Count

Four of Plaintiff’s Verified Complaint and Defendants’ Counterclaim set forth in

Paragraph 2(h) of Defendants’ Prayer for Relief. Plaintiff claims that no genuine

issue of material fact exists and that he is entitled to partial summary judgment as a

matter of law because (i) the language of section 2.H.c. of the Settlement Agreement

is plain and unambiguous; (ii) section 2.H.c. required the parties to confirm during

the thirty days following the Settlement Date that ACN intended to market and sell

the Healthcare Building; (iii) the parties received confirmation of ACN’s intent thirty-

three days after the Settlement Date (and thus outside the bargained for and agreed

upon thirty-day period), and therefore (iv) Defendants are obligated to pay Plaintiff

36% of the appraised fair market value of the Healthcare Building as set forth in the

first-quoted paragraph of section 2.H.c. 26

A. The Court Is Bound by Judge Bledsoe’s Interpretation of Section 2.H.c.

   19.    The enforceability of settlement agreements is governed by the general

principles of contract law. Chappell v. Roth, 

 (2001). Our Supreme

Court has held that, “[a] contract which is plain and unambiguous on its face will be

interpreted by the Court as a matter of law.” Schenkel & Shultz, Inc. v. Hermon F. Fox


26 (Pl.’s Mem., passim.)
& Assocs., P.C., 

 (2008) (emphasis added) (citing Lane v.

Scarborough, 

 (1973)). In his Order and Opinion resolving the Rule

12(c) Motion and the Objections, Judge Bledsoe’s determined, as a matter of law, that

section 2.H.c. of the Settlement Agreement is plain and unambiguous; that its thirty-

day confirmation provision is material; and that the thirty-day provision of section

2.H.c. as written means that in the event the parties do not confirm that ACN intends

to market and sell the Healthcare Building within thirty days of the Settlement Date,

then the first paragraph of 2.H.c. controls, and Dr. Yoder shall be paid 36% of the

appraised fair market value of the Healthcare Building and any cash held by

Healthcare VII, after subtracting the amount of any outstanding debts of Healthcare

VII in existence as of the date of the Settlement Agreement. 27

     20.   The Court and the parties are bound by Judge Bledsoe’s interpretation of

section 2.H.c. as a matter of law. “The well established rule in North Carolina is that

no appeal lies from one Superior Court judge to another; that one Superior Court

judge may not correct another’s errors of law; and that ordinarily one judge may not

modify, overrule, or change the judgment of another Superior Court judge previously

made in the same action.” Calloway v. Ford Motor Co., 

 (1972).

Accord Fox v. Johnson, 

, 282 (2015) (same). 28 There are no genuine


27 (Defs.’ 12(c) Order & Op. ¶¶ 20-21.)


28 Plaintiff’s reliance on Propst v. N.C. HHS, 

 (2014) to support his
argument that the collateral estoppel doctrine prevents Defendants from relitigating the
interpretation of section 2.H.c. is misplaced. The Propst court observed that the doctrine
applies when four specific requirements are met, and each element requires the existence of
a “prior action.” 

 at 167−68 (citations omitted). Here, the nonexistence of a prior action
addressing the interpretation of section 2.H.c. renders collateral estoppel inapplicable.
issues of material fact regarding Judge Bledsoe’s interpretation of the plain and

unambiguous language of section 2.H.c., as written.

B. The Parties Did Not Receive Notice of ACN’s Intent Within The Thirty-Day Period.

   21.     Significantly, Defendants agree that no genuine issue of material fact exists

regarding whether the parties received confirmation within thirty days of the

Settlement Date that ACN intended to market and sell the Healthcare Building,

stating in their Reply Brief that: “The Verm Defendants agree with Dr. Yoder that

there is no genuine issue of material fact as to when ACN gave notice of its intent to

sell the Brevard Property: counsel for ACN communicated that intent to counsel for

the Verm Defendants on 18 January 2023, and that email was forwarded to counsel

for Dr. Yoder on 20 January 2023.” 29 For good measure, Defendants also state to

similar effect in their Memorandum in Opposition to Plaintiff’s Motion: “On January

18, 2023, just 33 days after the Settlement Date, ANC’s lawyer confirmed in writing

that ANC did wish to proceed with marketing and selling the Brevard Property.

Counterclaim, Exhibit 1. ANC’s emails were then forwarded to counsel for Dr. Yoder

on January 20, 2023. First Houti Affidavit, Exhibit D.” 30

   22.     Defendants’ documentary evidence submitted in opposition to Plaintiff’s

Motion supports Defendants’ statements in their briefing and confirms that the




29 (Verm Defs.’ Reply Mem. L. Supp. Mot. Partial Summ. J. on Pleadings or in the alt. Partial

Summ. J. 1–2, ECF No. 45; Verm Defs.’ Answer Affirmative Defenses & Countercls., Ex. 2.)

30 (Defs’ Mem. Opp’n Pl.’s Mot. for Partial Summ. J. 16 [hereinafter “Defs’ Mem. Opp’n], ECF

No. 74.)
parties did not receive ACN’s confirmation of its intent to market and sell the

Healthcare Building within the thirty-day window of section 2.H.c.:

  a. Defendants’ counsel emailed counsel for ACN Transylvania Services Inc., Neil

      S. Olderman, on 10 January 2023, twenty-six days after the Court’s approval

      of the Settlement Agreement, seeking to discuss if ACN may be interested in

      selling the Healthcare Building. 31

  b. In a 10 January 2023 email, Olderman wrote that he was “out of town” but

      indicated his availability to talk with Defendants’ counsel about the matter

      some time the week of 16 January 2023, or if not convenient he could talk the

      morning of Friday 13 January 2023 [still within the thirty-day window]. 32

  c. In an 18 January 2023 email from Olderman to Defendants’ counsel, Olderman

      stated that, “ANC is willing to move forward with the marketing and sale of the

      MOB.” 33

  d. The thirtieth day following the approval of the Settlement Agreement on 15

      December 2022 was 14 January 2023, meaning counsel Olderman’s

      confirmation email on 18 January 2023 to Defendants’ counsel stating that

      ACN was willing to move forward with the marketing and sale of the MOB

      occurred outside of the thirty-day window of section 2.H.c. 34


31 (Aff. of Jennifer Houti, dated 17 April 2024 [hereinafter “Houti Aff.”], Ex. D, Email from

JMH to Massagee, ECF No. 22.2.)

32 (Houti Aff., Ex. D, Email from JMH to Massagee.)


33 (Houti Aff., Ex. D, Email from JMH to Massagee.)


34 (Houti Aff., Ex. D, Email from JMH to Massagee.)
   23.     At the Hearing, counsel for Defendants admitted that ACN’s confirmation

on 18 January 2023 of its intent to market and sell the Healthcare Building did not

occur per the terms of section 2.H.c.:

         THE COURT: Well, let’s see. Hold on. Okay, so you can see, don’t you,
         that during the 30 days following the settlement agreement --
         settlement date, the parties did not confirm that ANC intends to market
         and sell the healthcare building. Is that right?

         MR. FENNELL: No, the parties didn’t feel like they needed
         confirmation.

         THE COURT: Well, I’m not asking you that. I’m asking you, did they
         get confirmation that ANC wanted to sell within that 30-day window as
         expressly stated in the document?

         MR. FENNELL: No, they did not. 35

   24.     The undisputed evidence of record conclusively establishes that the parties

did not receive ACN’s confirmation of its intent to market and sell the Healthcare

Building within thirty days following the Settlement Date. As a result, there remain

no genuine issues of material fact and thus Plaintiff is entitled to judgment as a

matter of law declaring that he is entitled to receive 36% of the appraised fair market

value of the Healthcare Building as compensation for his membership interest in

Healthcare VII as provided by section 2.H.c. of the Settlement Agreement.

C. Defendants’ Other Arguments Are Unavailing

   25.     The conclusive determinations of Judge Bledsoe and this Court set forth

above sufficiently resolve Plaintiff’s Motion.        Defendants’ remaining arguments

regarding materiality, the substantial performance doctrine, and whether


35 (Feb. 18, 2025 Hr’g Tr. 19:21–20:7, ECF No. 85.)
substantial compliance with section 2.H.c. is a question for a jury 36 are impermissible

and untimely collateral attacks on Judge Bledsoe’s determinations in the Rule 12(c)

Opinion. The Court, in the exercise of its discretion, summarily rejects all of them as

unavailing, but addresses them below to facilitate any appellate review.

         (i) Materiality of the Thirty-Day Confirmation Period

   26.     “[T]he most fundamental principle of contract construction [is] that the

courts must give effect to the plain and unambiguous language of a contract.”

Johnston Cnty. v. R.N. Rouse & Co., Inc., 

 (1992). If the terms of a

contract are unambiguous, then the court “cannot look beyond the terms of the

contract to determine the intentions of the parties.” Stovall v. Stovall, 

 (2010) (quoting Lynn v. Lynn, 

 (2010)). Judge Bledsoe

conclusively determined that the thirty-day confirmation period is material to the

interpretation of section 2.H.c.’s plain and unambiguous language 37 and must be

enforced as written. His materiality determination is binding on the Court and the

parties. See Calloway and 

.     “In determining whether a given term of an agreement is “material,” courts

have looked to the purpose and nature of the agreement itself, and also to the term

at issue to determine whether the term was bargained for by one of the parties.”

McCarthy v. Hampton, 

, at * 16 (N.C. Super. Ct. July 1, 2015)

(emphasis added and citations omitted). Moreover, where a term or condition of the


36 (Defs.’ Mem. Opp’n 7–17.)


37 (12(c) Order & Op. ¶¶ 18–19.)
agreement is part of the consideration, it is material to the agreement. Chappell, 353

N.C. at 693–94 (“The ‘mutually agreeable’ release was part of the consideration, and

hence, material to the settlement agreement.”).

     28.     Section 2.H.c.’s thirty-day confirmation requirement is material for a host

of reasons. It directly determines the method by which Dr. Yoder will be compensated

for the purchase of his interest in Healthcare VII.           It constituted part of the

“consideration” for the parties’ Settlement Agreement:

           C. Adequacy of Consideration: The Parties expressly acknowledge that
           the consideration set forth above is fair and adequate consideration for
           the covenants, undertakings, forbearances, and promises contained
           herein, and but for this agreement, each Party may not have been
           entitled to the same. 38

Furthermore, the evidence of record demonstrates that Dr. Yoder “bargained for” the

thirty-day requirement of section 2.H.c.:

     a. The parties first circulated a copy of the draft Settlement Agreement on 25

           September 2025 which did not contain the “thirty-day” language. 39

     b. The thirty-day language was first introduced via edits to the draft Settlement

           Agreement from Dr. Yoder’s counsel on 9 November 2022. 40




38 (Settlement Agreement 3.)


39(2d Houti Aff., Ex. D, ECF No. 76.1.) These communications occur primarily between
counsel for Defendants and counsel at Prince, Massagee, & Alexander, PLLC who
represented Plaintiff at pertinent times during the parties’ extensive, arms-length
negotiations of the Settlement Agreement.

40 (2d Houti Aff., Ex. I, ECF No. 76.6.)
    c. The subsequent drafts of the Settlement Agreement did not remove the thirty-

         day language of section 2.H.c., which resulted in its inclusion in the finalized,

         signed, and court-approved Settlement Agreement over a month later. 41

   29.     In reliance on statements that Dr. Verm proffers in his affidavit submitted

in opposition to Plaintiff’s Motion, Defendants further contend the thirty-day

requirement of section 2.H.c. is not material because, “Dr. Verm never believed or

intended the 30-day period to be a material term requiring strict compliance,” 42 and

that “Dr. Yoder did not believe the time periods set forth in Section 2(H) of the

settlement Agreement were material.” 43 However, North Carolina law is clear that

“[i]f the plain language of a contract is clear, the intention of the parties is inferred

from the words of the contract.” Walton v. City of Raleigh, 

 (1996).

Again, Judge Bledsoe conclusively determined section 2.H.c. is plain and

unambiguous and, therefore, must be interpreted as written. “The parol evidence

rule prohibits the admission of parol evidence to vary, add to, or contradict a written

instrument intended to be the final integration of the transaction.” Lassiter v. Bank

of N.C., 

, 269 (2001).

   30.     As noted above, in determining whether a term is material, courts may look

to the purpose and nature of the agreement itself, the term at issue to determine

whether one of the parties expressly bargained for it, and whether the term is part of


41 (2d Houti Aff., Exs. J, K, ECF Nos. 76.7., 76.8.)


42 (Defs.’ Mem. Opp’n 13.)


43 (Defs.’ Mem. Opp’n 14.)
the consideration for the agreement. Here, each of these factors is present. In section

1 of the Settlement Agreement (“Subject Matter and Purpose”), the Parties affirmed

that the purpose “is to fully and completely set forth the terms of an agreement

reached among the Parties to settle all disputes and controversies among them[.]” 44

In section 7 (“Advice of Counsel”), the Parties certified they read this Agreement,

received a full explanation of the Agreement from their attorneys, understood it, and

voluntarily entered into it. 45 In section 13 (“Entire Agreement and Severability”), the

Parties affirmed that the Settlement Agreement “constitute[d] the entire

understanding among the Parties and merge[d] 46 the full agreement reached among

the Parties and all prior oral negotiations regarding the settlement of their

disputes.” 47   The evidence of record shows that Dr. Yoder bargained for and

accomplished inclusion of the thirty-day requirement of section 2.H.c. The insertion

of the thirty-day requirement into section 2.H.c. was part of the consideration for the

Settlement Agreement.

     31.   The final language of section 2.H.c. and the provisions of the Settlement

Agreement were extensively negotiated at arms-length by sophisticated parties with




44 (Settlement Agreement 1.)


45 (Settlement Agreement 11.)


46 Merger clauses “effectuate the policies of the Parol Evidence Rule; i.e., barring the
admission of prior and contemporaneous negotiations on terms inconsistent with the terms
of the writing. North Carolina recognizes the validity of merger clauses and has consistently
upheld them.” Zinn v. Walker, 

 (1987) (citations omitted).

47 (Settlement Agreement 12.)
a history of adverse litigation amongst themselves. The Court declines to consider

Dr. Verm’s Affidavit to the extent it seeks consideration of pre-Settlement Date

statements, beliefs, hearsay, and speculation about the alleged intent, beliefs,

knowledge, or actions of Dr. Verm, Dr. Yoder, or ACN representatives that would

vary, add to, or contradict terms of the Settlement Agreement.

   32.     Section 2.H.c.’s thirty-day confirmation period is material to the Settlement

Agreement, and, thus, Defendants’ materiality arguments are rejected as unavailing.

         (ii) The Substantial Performance Doctrine

         As a plenary matter, Judge Bledsoe already rejected as meritless Defendants’

arguments that because the Settlement Agreement does not contain a “time is of the

essence clause,” the dates specified in the Settlement Agreement, and specifically the

thirty-day confirmation requirement in section 2.H.c., are not considered material

terms but rather serve as general guidelines. 48 This is so because that rule only

applies to contracts involving the sale of real property: “As a general rule, the

language of a contract should be interpreted as written; however, there is a well-

established exception, the ‘reasonable time to perform rule,’ that applies to contracts

for the sale of real property.” Harris v. Stewart, 

 (2008)

(emphasis added). Accord Kassel v. Rienth, 289 N.C. App.173, 183 (2023) (same);

Cameron v. Newman, 

 at *15 (2025) (Table) (same). The

instant action does not arise out of a dispute concerning a contract for the purchase

and sale of real property. Similarly, Judge Bledsoe rejected as meritless Defendants’


48 (Defs.’ (12(c) Order & Op. ¶¶ 18–20.)
arguments that compliance with section 2.H.c.’s thirty-day confirmation requirement

was not required:

         North Carolina’s other “reasonable time” rule—that “if no time for the
         performance of an obligation is agreed upon by the parties, then the law
         prescribes that the act must be performed within a reasonable time,”
         Metals Corp. v. Weinstein, 

 (1952) (cleaned up)—does
         not apply here either because section 2.H.c. expressly supplies a thirty-day time period for the parties’ performance. 49

   33.     Defendants did not raise the substantial performance doctrine at the Rule

12(c) stage. By raising that doctrine for the first time at the summary judgment

stage, Defendants improperly seek to collaterally attack and end-run Judge Bledsoe’s

binding section 2.H.c. determinations.          Defendants’ attempt to relitigate their

previously rejected “time is of the essence” and “reasonable time to perform rule”

arguments 50 by dressing them up in different garb must fail. Defendants are not

entitled to a second bite at the apple whatever the label used!

   34.     The substantial performance doctrine is an equitable one that permits a

party to recover on a contract even though it fails to comply with the literal terms set

forth in the contract. Ricky Spoon Builders, Inc. v. Emgee LLC, 

,

690 (2022) (citation omitted). Defendants cite Ricky Spoon and the unpublished

opinion of Venable v. Grep Southeast LLC, 

, 

 (Sept. 19, 2023) to support their previously rejected arguments that the

reasonable time to perform rule is not limited to contracts for the purchase and sale



49 (Defs.’ 12(c) Order & Op. n. 29 (emphasis added).)


50 (Defs.’ Mem. Opp’n 7–10.)
of real property. 51 Both cases are easily distinguishable. The Court in Ricky Spoon

enforced the terms of a settlement agreement that did contain a time is of the essence

clause for the purchase and sale of real property, which indisputably is a clause not

found in the parties’ Settlement Agreement here. The Court in Venable enforced the

settlement agreement where the plaintiff accepted a delinquent payment and the

defendants paid the settlement amount due in full, rendering any breach immaterial

and constituting a waiver; whereas, here, the dispute concerns Dr. Yoder’s contract

enforcement      efforts    resulting   from   Defendants’   noncompliance   with   and

nonperformance of the bargained for and agreed upon terms of the Settlement

Agreement itself.

   35.     Notably, Ricky Spoon affirms the principle that unambiguous, bargained

for, and agreed upon terms of a contract—such as the parties’ clear and unambiguous

thirty-day confirmation period of section 2.H.c.—must be enforced as written,

observing:

         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.”    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.

Id. at 691 (emphasis added and citations omitted).

   36.     The Court summarily rejects Defendants’ substantial performance

arguments as unavailing.


51 (Defs.’ Mem. Opp’n 9.)
         (iii) Substantial Performance is for a Jury

   37.     Defendants contend that the Court’s adjudication of Plaintiff’s Motion is

premature because any doubt about the interpretation of section 2.H.c. is a question

of fact to be resolved by a jury. 52 First, no doubt exists about the correctness of Judge

Bledsoe’s interpretation of section 2.H.c. Second, this belatedly raised argument is

simply another improper effort by Defendants to collaterally attack and relitigate

Judge Bledsoe’s interpretation of section 2.H.c.       It is well settled law that the

interpretation of a clear and unambiguous contract is a question of law for the Court.

   38.     The Court rejects Defendant’s substantial performance jury submission

arguments as unavailing.

                                           IV.

                                     CONCLUSION

   39.     WHEREFORE, based on the foregoing, the Court hereby GRANTS

Plaintiff’s Motion and JUDGMENT is hereby ENTERED for Plaintiff declaring that

Plaintiff is entitled to 36% of the appraised value of the Healthcare Building and any

cash held by Healthcare VII, after subtracting the amount of any outstanding debts

of Healthcare VII in existence as of the date of the Settlement Agreement.

           SO ORDERED, this the 6th day of May, 2025.


                                         /s/ A. Todd Brown
                                         A. Todd Brown
                                         Special Superior Court Judge
                                           for Complex Business Cases



52 (Defs.’ Mem. Opp’n 16–17.)