STROUD, Judge.

The trial court granted summary judgment in favor of Ammons East Corporation pursuant to Ammons East Corporation's third motion for summary judgment. Both parties appeal various orders, and for the following reasons we (1) reverse the 6 February 2008 order of the trial court and remand for an entry of summary judgment in favor of Ammons East Corporation and (2) vacate the 11 March 2009 order of the trial court.

I. Background

On or about 28 June 2007, plaintiff Profile Investments No. 25, LLC ("Profile") filed a complaint against defendant Ammons East Corporation ("Ammons"). Profile sued for breach of contract by repudiation and requested specific performance and monetary damages. On or about 16 August 2007, Profile filed a motion for summary judgment. On 31 August 2007, Profile filed an amended complaint which stated essentially the same claim for breach of contract by repudiation as the original complaint, but the amended complaint did not seek specific performance. The amended complaint made the following allegations relevant to the breach of contract claim:

In the prayer for relief, Profile requested only an award of monetary damages.

On or about 2 November 2007, Ammons filed an answer to Profile's amended complaint, including counterclaims against Profile. On 27 November 2007, Ammons filed a motion for summary judgment. On or about 3 January 2008, Profile replied to Ammons's counterclaims. On 6 February 2008, the trial court denied both Profile's and Ammons's motions for summary judgment. On 21 May 2008, Ammons filed a second motion for summary judgment. On 21 July 2008, the trial court denied Ammons's second motion for summary judgment. On 26 November 2008, Ammons filed a third motion for summary judgment. On or about 11 March 2009, the trial court granted defendant's third motion for summary judgment and thus dismissed Profile's claim for breach of contract.

On 12 May 2009, Ammons voluntarily dismissed its counterclaims without prejudice. Both parties appeal.

II. Profile's Appeal

In its notice of appeal Profile appeals from the 6 February 2008 order of Judge Rand denying summary judgment as to both parties and the 11 March 2009 order of Judge Ridgeway granting summary judgment in favor of Ammons.

A. 11 March 2009 Order

The 11 March 2009 order of Judge Ridgeway was based upon Ammons's third motion for summary judgment; both of Ammons's previous two summary judgment motions had been denied. Judge Ridgeway's order regarding Ammons's third motion for summary judgment raises a jurisdictional issue which this Court must address sua sponte. Crook v. KRC Management Corp., ___ N.C.App. ___, ___, 697 S.E.2d 449, 453 (2010) ("If one trial judge enters an order that unlawfully overrules an order entered by another trial judge, such an order must be vacated, including any award of fines or costs. Since the issue in question relates to jurisdiction, and jurisdictional issues can be raised at any time, even for the first time on appeal and even by a court sua sponte [.]" (citations and quotation marks omitted)).

Id. at ___, 697 S.E.2d at 456 (citation and quotation marks omitted). Furthermore, "the determination of whether an adequate change in circumstances has occurred must be made by the trial court, not the parties." Id. at ___, 697 S.E.2d at 456 (citation omitted).

In Crook, the defendant appealed from a trial court order ruling on a motion to compel after a previous motion to compel had already been decided. Id. at ___, 697 S.E.2d at 453. This Court vacated and remanded the second order ruling on the motion to compel because

Id. at ___, 697 S.E.2d at 456-57 (citation, quotation marks, and brackets omitted).

Here, as in Crook, "[t]he record simply contains no indication that the trial court made the required change of circumstances determination[.]" Id. at ___, 697 S.E.2d at 456 (quotations marks omitted). Accordingly, we vacate the 11 March 2009 order granting summary judgment in favor of Ammons. See id., ___ N.C.App. ___, 697 S.E.2d 449. As we are vacating the 11 March 2009 order, we need not address plaintiff's first two arguments on appeal.

B. 6 February 2008 Order

Profile also appeals from Judge Rand's 6 February 2008 order denying both Profile's and Ammons's summary judgment motions. Profile argues the trial court erred in its 6 February 2008 order because "Ammons is liable for breach of contract as a matter of law[.]" (Original in all caps.) Profile contends that the evidence establishes that "Ammons [r]epudiated the [a]greement[;]" "Profile [t]reated Ammons' [r]epudiation as a [b]reach[;]" and "Profile [w]as [r]eady, [w]illing and [a]ble ... to [p]erform at the [t]ime of the [r]epudiation[.]"

In reviewing the trial court's decision to grant a motion for summary judgment,

S.B. Simmons Landscaping & Excavating, Inc. v. Boggs, 192 N.C. App. 155, 163-64, 665 S.E.2d 147, 152 (2008) (citations and quotation marks omitted).

The primary substantive issue presented by the pleadings in this case is whether Ammons breached its contract with Profile by repudiation.

Millis Constr. Co. v. Fairfield Sapphire Valley, 86 N.C. App. 506, 510, 358 S.E.2d 566, 569 (1987) (citations and brackets omitted).

For repudiation to result in a breach of contract, "the refusal to perform must be of the whole contract or of a covenant going to the whole consideration, and must be distinct, unequivocal, and absolute[.]" Edwards v. Proctor, 173 N.C. 41, 44, 91 S.E. 584, 585 (1917) (citation and quotation marks omitted). Furthermore, even a "distinct, unequivocal, and absolute" "refusal to perform" is not a breach "unless it is treated as such by the adverse party." Id. (citation and quotation marks omitted). Upon repudiation, the non-repudiating party "may at once treat it as a breach of the entire contract and bring his action accordingly." Id. (citation and quotation marks omitted). Thus, breach by repudiation depends not only upon the statements and actions of the allegedly repudiating party but also upon the response of the non-repudiating party. See id. ("When the promisee adopts the latter course, treating the contract as broken and himself as discharged from his obligations under it, he resolves his right into a mere cause of action for damages. His rights acquired under it may be dealt with in various ways for his benefit and advantage. Of all such advantages the repudiation of the contract by the other party, and the announcement that it will never be fulfilled, must of course deprive him. It is, therefore, quite right to hold that such an announcement amounts to a violation of the contract in omnibus, and that upon it the promisee, if so minded, may at once treat it as a breach of the entire contract and bring his action accordingly. In order to justify the adverse party in treating the renunciation as a breach, the refusal to perform must be of the whole contract or of a covenant going to the whole consideration, and must be distinct, unequivocal, and absolute, although the renunciation need not necessarily be made at the place of performance named in the contract. It may be observed, however, that the renunciation itself does not ipso facto constitute a breach. It is not a breach of the contract unless it is treated as such by the adverse party. Upon such a repudiation of an executory agreement by one party, the other may make his choice between the two courses open to him, but can neither confuse them nor take both." (citation and quotation marks omitted)).

In Edwards, our Supreme Court examined the effect of an alleged statement of repudiation and the response of the non-repudiating party to the contract. Id., 173 N.C. 41, 91 S.E. 584. The Edwards plaintiff sued the defendants, Proctor and Holliday, for breach of a contract under which plaintiff was employed to cut timber on the defendants' land and operate a sawmill to cut the wood into lumber; the defendants also sued plaintiff to recover a balance due on the same contract. Id. at 42-43, 91 S.E. at 584. The two cases were consolidated and tried together. Id. at 42, 91 S.E. at 584.

Id. at 43, 91 S.E. at 584. The jury determined that defendants Holliday and Proctor had not breached the contract and awarded nothing to plaintiff Edwards. Id. at 42, 91 S.E. at 584. Our Supreme Court determined there was no error in the trial because

Id. at 45, 91 S.E. at 585 (emphasis added).

We first note that there is no dispute as to the facts surrounding Ammons's alleged repudiation or Profile's response; the question is one of law as to whether the facts, viewed in the light most favorable to Profile, see S.B. Simmons Landscaping & Excavating, Inc. at 164, 665 S.E.2d at 152, support the claim of repudiation. Both parties admit that after execution of the original contract to purchase the property, they entered into three amendments to the original contract which extended the closing date, the last of which provided that the closing of the sale would occur on or by 31 July 2007. On or about 24 May 2007, Justus M. Ammons, president of Ammons, wrote a letter to Profile which provided in pertinent part:

On or about 31 May 2007, Mr. Ammons faxed the above letter to Profile with a handwritten note which read, "I will be out of town tomorrow[.] Back Mon[.] 4th—[w]hen I will definitely [c]onsider org[.] contract with you no longer exist." Profile notes that Mr. Ammons demanded Profile "close the deal by June 1, 2007—60 days before the closing deadline." Ammons contends that Mr. Ammons "misread ... [the Third Amendment to the Agreement and] he honestly believed that Appellant's deadline to close was June 1, 2007."

On or about 12 June 2007, Ammons entered into another contract to sell the property at issue to Carolina CMC, LLC; however on or about 14 June 2007, two days later, Mr. Ammons wrote to Mr. Ross Coppage with Carolina CMC, LLC stating in pertinent part,

On or about 18 June 2007, Ms. Elizabeth Voltz, Profile's attorney, sent a letter to Mr. Ammons which stated that "the Buyer is moving forward towards closing on or before July 31, 2007. The Buyer is ready, willing and able to proceed to Closing pursuant to the terms of the Contract." Ms. Voltz's letter then reiterated twice more with underlining that "the Buyer is ready, willing and able to close the transaction ... on or before July 31, 2007." (Emphasis in original.) Also on or about 18 June 2007, Ms. Voltz sent an email to Frank A. Csapo, Profile's manager, informing him that

Ms. Voltz went on to state that "our main concern was that Jud [Ammons] did not sell the property to another buyer[.]"

On or about 28 June 2007, Profile filed suit against Ammons for breach of contract by repudiation, requesting specific performance and monetary damages. On or about 3 July 2007, Ammons and Carolina CMC, LLC terminated their agreement. On 5 July 2007, Ms. Voltz contacted Mr. Scott Miskimon, Ammons's attorney, stating she was "glad to hear that Mr. Ammons has decided to proceed to closing" and to "[l]et [her] touch base with ... [her] client and get back with you relative to a closing date." Ms. Voltz then requested various seller documents. On 6 July 2007, Mr. Miskimon responded to Ms. Voltz and requested a specific closing date. On or about 31 July 2007, Ammons tendered the fully executed deed to the subject property to Ms. Voltz; however, Profile did not accept the deed. On 31 August 2007, Profile filed an amended complaint, which included the claim for breach of contract by repudiation, but this time dropping the request for specific performance and only requesting monetary damages.

We need not address whether Mr. Ammons's letter setting closing on or by 1 June 2007 was a mistake or whether the content of Mr. Ammons's letter, even with the erroneous date, could be considered as a repudiation, as the undisputed statements and actions of Profile make it clear that Profile did not treat the letter as a repudiation. Thus, even assuming arguendo, that Mr. Ammons's letter was a "refusal to perform ... the whole contract or of a covenant going to the whole consideration, and [was] ... distinct, unequivocal, and absolute.... [i]t is not a breach of the contract unless it is treated as such by the adverse party." Edwards at 44, 91 S.E. at 585.

Here, after receipt of the letter "repudiating" the contract, Profile sent a letter to Mr. Ammons demanding that Ammons proceed with the contract or be sued. Within Profile's letter, it emphasized on three separate occasions that it was "ready, willing and able to close ... on or before July 31, 2007." Profile even filed the original compliant seeking specific performance of the contract and continued to inform Ammons that it intended to close in accordance with the contract and requested seller documents from Ammons. Profile's actions and statements clearly demonstrated that Profile was planning on proceeding with the contract and Profile did nothing to treat Mr. Ammons's letter as a repudiation until Ammons tendered the deed. Only upon tender of the deed did Profile change its course, and after refusing to accept the deed it had demanded, dropped its claim for specific performance. As Profile did not treat Mr. Ammons's letter as a repudiation, the contract was never breached. See Edwards, 173 N.C. 41, 91 S.E. 584. Accordingly, we reverse the 6 February 2008 order of the trial court denying summary judgment in favor of Ammons.

III. Defendant's Appeal

Ammons concedes in its brief "[i]f Appellant Profile's appeal is unsuccessful, the Court may dismiss this cross-appeal as moot." Therefore, we need not address defendant's appeal.

IV. Conclusion

For the foregoing reasons we reverse the 6 February 2008 order of the trial court and remand for entry of an order granting summary judgment in favor of Ammons and vacate the 11 March 2009 order of the trial court.

REVERSED and REMANDED in part; VACATED in part.

Judges McGEE and HUNTER, JR., ROBERT N., concur.