merger clause in North Carolina

2025However, any presumption created by the existence of a merger clause can be rebutted through evidence of the “existence of fraud, bad faith, unconscionability, negligent omission[,] or mistake in fact.” Zinn, 87 N.C.

2020Dismiss 11 (“[T]he Phantom Stock Plan language does not provide the basis for a contract claim for a term of employment[.]”).) Nor has Higgins pleaded with requisite particularity any fraudulent or negligent misconduct, (see infra IV.C, D), that might preclude application of the merger clause in the circumstances here, see Zinn, 87 N.C.

1987Most notable among these is the application of the merger rule to a felony murder: when a murder is committed in the course of a felony and the perpetrator is convicted of murder in the first degree solely on that basis, "the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution of the defendant for, or a further sentence of the defendant for, commission of the underlying felony." State v. Cherry, 298 N.C. 86, 113 , 257 S.E.2d 551, 567 (1979), cert. denied, 446 U.S. 941 , 100 S.Ct. 2165 , 64 L.Ed.2d 796 (1980); State v. Silhan, 302 N.C. 223, 26

1987Most notable among these is the application of the merger rule to a felony murder: when a murder is committed in the course of a felony and the perpetrator is convicted of murder in the first degree solely on that basis, "the underlying felony becomes a part of the murder charge to the extent of preventing a further prosecution of the defendant for, or a further sentence of the defendant for, commission of the underlying felony." State v. Cherry, 298 N.C. 86, 113 , 257 S.E.2d 551, 567 (1979), cert. denied, 446 U.S. 941 , 100 S.Ct. 2165 , 64 L.Ed.2d 796 (1980); State v. Silhan, 302 N.C. 223, 26

2016App. 649, 654 , 670 S.E.2d 321, 326 (2009) (stating that merger clause will not be enforced "when giving effect to the merger clause would frustrate the parties' true intentions"); Hinshaw v. Wright, 105 N.C.

2009Secondly, "where giving effect to the merger clause would frustrate and distort the parties' true intentions and understanding regarding the contract, *508 the clause will not be enforced...." Zinn, 87 N.C.App. at 333 , 361 S.E.2d at 319 ; see also Medical Staffing Network, Inc. v. Ridgway, ___ N.C.App. ___, ___, 670 S.E.2d 321, 326 (2009) ("The one exception to this general rule applies when giving effect to the merger clause would frustrate the parties' true intentions."); Hinshaw v. Wright, 105 N.C.App. 158, 162 , 412 S.E.2d 138, 141 (1992) ("The one exception to this general rule applies w

2014Id. (quoting Neal v. Marrone, 239 N.C. 73, 77 , 79 S.E. 2d 239, 242 (1953)). {35} A merger clause reinforces the parol evidence rule by “creat[ing] a rebuttable presumption that the writing represents the final agreement between the parties.” Zinn v. Walker, 87 N.C.

2014Id. (quoting Neal v. Marrone, 239 N.C. 73, 77 , 79 S.E. 2d 239, 242 (1953)). {35} A merger clause reinforces the parol evidence rule by “creat[ing] a rebuttable presumption that the writing represents the final agreement between the parties.” Zinn v. Walker, 87 N.C.

2016App. 649, 654 , 670 S.E.2d 321, 326 (2009) (stating that merger clause will not be enforced "when giving effect to the merger clause would frustrate the parties' true intentions"); Hinshaw v. Wright, 105 N.C.

2009Secondly, "where giving effect to the merger clause would frustrate and distort the parties' true intentions and understanding regarding the contract, *508 the clause will not be enforced...." Zinn, 87 N.C.App. at 333 , 361 S.E.2d at 319 ; see also Medical Staffing Network, Inc. v. Ridgway, ___ N.C.App. ___, ___, 670 S.E.2d 321, 326 (2009) ("The one exception to this general rule applies when giving effect to the merger clause would frustrate the parties' true intentions."); Hinshaw v. Wright, 105 N.C.App. 158, 162 , 412 S.E.2d 138, 141 (1992) ("The one exception to this general rule applies w

2009Loving Co. v. Latham, 20 N.C.App. 318, 329-30 , 201 S.E.2d 516, 523-24 (1974)); see, eg., Chapel Hill Spa Health Club, Inc. v. Goodman, 90 N.C.App. 198, 202 , 368 S.E.2d 60, 63 (1988) (appropriate to treat a written membership agreement and an oral referral arrangement as part of a single contract despite the presence of language in the membership contract "stating that no oral promises, warranties, or representations were made other than those in the contract"); T.A.

1987Where giving effect to the merger clause would frustrate and distort the parties’ true intentions and understanding regarding the contract, the clause will not be enforced: “. . . to permit the standardized language in the printed forms, ... to nullify the clearly understood and expressed intent of the contracting parties would lead to a patently unjust and absurd result . . . .’’ Loving Co. v. Latham, 20 N.C.

1986See also State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979), and State v. Tatum, 291 N.C. 73 , 229 S.E. 2d 562 (1976), pointing out that the merger requirement may depend upon the theory of the case submitted by the judge to the jury.

1986See also State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979), and State v. Tatum, 291 N.C. 73 , 229 S.E. 2d 562 (1976), pointing out that the merger requirement may depend upon the theory of the case submitted by the judge to the jury.

1986See also State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979), and State v. Tatum, 291 N.C. 73 , 229 S.E. 2d 562 (1976), pointing out that the merger requirement may depend upon the theory of the case submitted by the judge to the jury.

1986See also State v. Goodman, 298 N.C. 1 , 257 S.E. 2d 569 (1979), and State v. Tatum, 291 N.C. 73 , 229 S.E. 2d 562 (1976), pointing out that the merger requirement may depend upon the theory of the case submitted by the judge to the jury.

2017On appeal, we upheld the defendant's convictions and declined to apply the "merger doctrine." Under the merger doctrine, not adopted in North Carolina but adopted by some states, " 'a ... felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.' " State v. Wall , 304 N.C. 609 , 612, 286 S.E.2d 68 , 71 (1982) (quoting People v. Ireland , 70 Cal.2d 522 , 539, 75 Cal.Rptr. 188 [ 450 P.2d 580 ] (1969) ). "[Our Sup

2017On appeal, we upheld the defendant's convictions and declined to apply the "merger doctrine." Under the merger doctrine, not adopted in North Carolina but adopted by some states, " 'a ... felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.' " State v. Wall , 304 N.C. 609 , 612, 286 S.E.2d 68 , 71 (1982) (quoting People v. Ireland , 70 Cal.2d 522 , 539, 75 Cal.Rptr. 188 [ 450 P.2d 580 ] (1969) ). "[Our Sup

2025Id. at 380, 446 S.E.2d at 358 .

2002Barlowe, 337 N.C. at 380 , 446 S.E.2d at 358 ; Carey, 288 N.C. at 274 , 218 S.E.2d at 400 .

2017On appeal, we upheld the defendant's convictions and declined to apply the "merger doctrine." Under the merger doctrine, not adopted in North Carolina but adopted by some states, " 'a ... felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.' " State v. Wall , 304 N.C. 609 , 612, 286 S.E.2d 68 , 71 (1982) (quoting People v. Ireland , 70 Cal.2d 522 , 539, 75 Cal.Rptr. 188 [ 450 P.2d 580 ] (1969) ). "[Our Sup

2017On appeal, we upheld the defendant's convictions and declined to apply the "merger doctrine." Under the merger doctrine, not adopted in North Carolina but adopted by some states, " 'a ... felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.' " State v. Wall , 304 N.C. 609 , 612, 286 S.E.2d 68 , 71 (1982) (quoting People v. Ireland , 70 Cal.2d 522 , 539, 75 Cal.Rptr. 188 [ 450 P.2d 580 ] (1969) ). "[Our Sup

1988Third, defendant Barnes argues that the submission of this aggravating factor violates the merger rule as set forth in State v. Cherry, 298 N.C. 86 , 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941 , 100 S.Ct. 2165 , 64 L.Ed.2d 796 (1980): "when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony." Id. at 113, 257 S.E.2d at 568 .

1988Third, defendant Barnes argues that the submission of this aggravating factor violates the merger rule as set forth in State v. Cherry, 298 N.C. 86 , 257 S.E.2d 551 (1979), cert. denied, 446 U.S. 941 , 100 S.Ct. 2165 , 64 L.Ed.2d 796 (1980): "when a defendant is convicted of first degree murder under the felony murder rule, the trial judge shall not submit to the jury at the sentencing phase of the trial the aggravating circumstance concerning the underlying felony." Id. at 113, 257 S.E.2d at 568 .

2026Nor does Defendant’s argument find support from the doctrine of merger, a “collateral aspect of res judicata which determines the scope of claims precluded from relitigation by an existing judgment.” Behr, 46 N.C.

1983In Behr , this Court concluded, “Under the doctrine of merger, a party suing for the breach of an indivisible contract must sue for all of the benefits which have accrued at the time of suit or be precluded from maintaining a subsequent action for installments omitted.” Id. at 693, 266 S.E. 2d at 396 .

2017In a footnote, however, we stated the following: Defendant cites our Supreme Court's opinion in State v. Jones , 353 N.C. 159 , 170, n. 3, 538 S.E.2d 917 , 926, n. 3 (2000), which stated that although the merger doctrine has been disavowed, "cases involving a single assault victim who dies of his injuries have never been similarly constrained[,]" as authority to overturn defendant's conviction in this case.

2017In a footnote, however, we stated the following: Defendant cites our Supreme Court's opinion in State v. Jones , 353 N.C. 159 , 170, n. 3, 538 S.E.2d 917 , 926, n. 3 (2000), which stated that although the merger doctrine has been disavowed, "cases involving a single assault victim who dies of his injuries have never been similarly constrained[,]" as authority to overturn defendant's conviction in this case.

2009The trial court found that Plaintiff’s breach of contract claim was barred by the doctrine of merger which states that “[generally, a ' contract for the sale of land is not enforceable when the deed fulfills all the provisions of the contract, since the executed contract then merges into the deed.” Biggers v. Evangelist, 71 N.C.

2009“However, it is well-recognized that the intent of the parties controls whether the doctrine of merger should apply.” Id.

2005App. 61, 64-65 , 302 S.E.2d 458, 460 (1983) (applying the parol evidence rule where the written contract included a merger clause similar to the one in the instant case).

1987App. at 65 , 302 S.E. 2d at 460 .) *334 When, however, as in the present case, the parties’ conduct indicates their intentions to include collateral agreements or writings despite the existence of the merger clause and the parol evidence is not markedly different, if at all, from the written contract, the parties’ intentions should prevail.

2002See Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 463 , 323 S.E.2d 23, 25 (1984).

1986“The merger clause in the written contract clearly excludes from the agreement everything not included in the writing, and parol evidence of express warranties made prior to the execution of the contract [is] incompetent and inadmissible.” Clifford, supra, at 464 , 323 S.E. 2d at 25 .