“[T]ime waits for no one,” sage Rolling Stones advice from 1974, doesn’t appear in Black’s Law Dictionary or result in frequent opinion cites for Keith Richards and Mick Jagger, the keen legal observers who wrote it. But it lurks just beneath the surface of many a contract, agreement, or law that defines when action must be taken.

In Yoder v. Verm, 2024 NCBC 60, the Business Court considered the position of a party to a settlement agreement that a 30-day deadline prescribed to perform a specific act was really more of a guidepost than a hard and fast requirement. Judge Bledsoe’s decision borrowed – at least thematically – from another famous Stones lyric: “you can’t always get what you want.”

In Yoder, defendants had 30 days from the date of settlement to inform of their intent to sell an asset. Providing such notice had special consequences for how the proceeds of such a sale would be divided among the former partners in an ophthalmology practice. Timely notice would limit plaintiffs’ recovery to a percentage of the net proceeds of a sale as opposed to a percentage of the asset’s appraised value. Id. ¶¶ 7, 16.

The catch? The undisputed fact that the notice wasn’t provided until 33 days after the settlement and, as the Court noted, “implicitly conceding that . . . confirmation of its intent to market and sell” did not meet the agreement’s notice provision. Id. ¶ 18.

The legal issue posed by the late-notice provider was that the notice need only be provided “within a reasonable time after” the 30-day period because the agreement did not contain a “time is of the essence” provision. Defendant relied on the “reasonable time to perform” principle that generally controls in realty sale contracts that do not contain a “time is of the essence” clause.  Id. ¶¶ 18-19.

Judge Bledsoe noted, though, that this tenet has been carefully contoured to apply “only to contracts for the purchase and sale of real property, rather than in all contexts, as Defendants appear to contend.” Id. ¶ 19 (citing Harris v. Stewart, 193 N.C. App. 142, 146, 666 S.E.2d 804, 807, (2008)(in realty sale contracts, “it has long been held that in the absence of a ‘time is of the essence’ provision, time is not of the essence.”). Here, the Court found that a provision requiring notice that a sale may occur did not amount to a purchase/sale scenario. Id. ¶ 20.

Worth Noting

• Here at the blog, we like to have a bit of fun with music and movie references. We commend a couple of courts that have been all in on legal homage to Mick and the Boys. See Federal Insurance Co. v. Tungsten Heavy Powder & Part, Inc., 2022 WL 20717531, *6 (S.D. Cal. Aug. 16, 2022) (in deciding privilege log issues in an insurance coverage dispute, the court artfully quotes “Beast of Burden” in deciding how parties’ burdens are apportioned); Flores v. Town of Islip, 2020 WL 5211052, *2 (E.D.N.Y. Sept. 1, 2020) (in a pandemic-era case where the plaintiff requested a virtual trial, the court lamented the encroachment of video testimony, but acknowledged its utility in the circumstances, by noting, “You can’t always get what you want, but if you try sometimes, you might find, you get what you need.”).

Brad Risinger is a partner in the Raleigh office of Fox Rothschild LLP.