NO. COA02-1070

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

    Appeal by defendant from judgment entered 11 March 2002 by Judge Fritz Y. Mercer, Jr. in Mecklenburg County District Court. Heard in the Court of Appeals 22 April 2003.

    Clontz & Clontz, PLLC, by Ralph C. Clontz, III, for plaintiff- appellee.

    Hawkins & Whited, LLP, by G. Keith Whited, for defendant- appellant.

    STEELMAN, Judge.

    Defendant, Richard F. Sella, appeals an order denying his motion to dismiss and granting summary judgment in favor of plaintiff, First Union National Bank. He sets forth four assignments of error. For the reasons discussed herein, we vacate the underlying judgment and remand to the trial court.
    Defendant executed and delivered to First Union National Bank four promissory notes, a security agreement, a credit cardapplication and three renewal agreements from May 1984 to July 1985. In those five accounts with First Union, defendant listed his address as “P.O. Box 225, Mebane, Orange County, N.C. 27302" and “P.O. Box 225, Mebane, Alamance County, N.C. 27302.” Defendant acknowledged that his business address in 1986 was “South Church Street, Burlington, N.C. 27215.”
    In 1986, defendant moved to Little Falls, New York, and lived there until 1990. First Union filed a civil action against defendant on 31 October 1989 in the District Court of Mecklenburg County seeking to collect from defendant the outstanding balances on five separate debts, with attorney fees, interest, and costs.
    In the 1989 lawsuit, First Union initially attempted service on defendant through the Alamance County Sheriff. The original summons was returned unserved with a notation that defendant lived in Orange County and no longer had a business on South Church Street.
    First Union then procured an alias and pluries summons which was sent, along with a copy of the complaint, to defendant at Post Office Box 225, Mebane, North Carolina 27302, by certified mail, return receipt requested. The letter containing the summons and complaint was signed for on 23 April 1990 by an individual who signed on the line for an agent rather than the addressee.
    Also in April 1990, First Union initiated service of processby publication in the Daily Times News, which was published in Burlington, Alamance County, North Carolina. The publication dates were 15, 22, and 29 April 1990. Default judgment was entered against defendant on five separate debts on 22 August 1990 by the Assistant Clerk of Superior Court, Mecklenburg County. The judgment awarded to First Union the principal amount of each debt, attorney fees, costs, accumulated interest, and provided for post- judgment interest on the principal amount of the debt at the legal rate.
    In 1998, plaintiff sold four of the five accounts to Ocwen Federal Bank. Both plaintiff and Ocwen filed new actions to extend the lien on the 1990 judgment pursuant to N.C. Gen. Stat. § 1-47, in August 2000. Defendant was personally served with process in Oregon and promptly filed a motion to dismiss for lack of jurisdiction. Plaintiff filed a motion for summary judgment, which was granted. Defendant appeals.
    A motion for summary judgment should be granted “if 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. Gen. Stat. § 1A- 1, Rule 56(c) (2003). However, “it is not the function of the trial court to make findings of fact and conclusions of law on amotion for summary judgment.” McArdle Corp. v. Patterson, 115 N.C. App. 528, 531, 445 S.E.2d 604, 606 (1994), aff'd, 340 N.C. 356, 457 S.E.2d 596 (1995) (citing Capps v. City of Raleigh, 35 N.C. App. 290, 292, 241 S.E.2d 527, 528 (1978)).
    In the instant case, the trial court made sixteen separate findings of fact and thirteen conclusions of law. The principal issue in this case is whether First Union properly served defendant in the 1989 action. The trial court settled this question by denying defendant's motion to dismiss and making findings of fact and conclusions of law in response to plaintiff's motion for summary judgment.
    A trial court is not authorized to decide issues of fact in ruling on a motion for summary judgment. Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699 (1985). In some instances, it is helpful for the trial court to set out undisputed facts which form the basis of its judgment in a summary judgment hearing. Capps v. City of Raleigh, 35 N.C. App. 290, 292, 241 S.E.2d 527, 529 (1978). However, here, it appears that the issue of personal service and jurisdiction was disputed and findings of fact were necessary for the trial court to explain its judgment.
    In Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142, 215 S.E.2d 162, 164-165 (1975), this Court held that: “If findings of fact are necessary to resolve an issue as to a materialfact, summary judgment is improper. There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact.” See also Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, cert. denied, 316 N.C. 374, 342 S.E.2d 889 (1986); Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579 (1973).
    In the instant case, the trial judge's findings of fact resolved genuine issues of material fact. The issues should not have been resolved by summary judgment. A full evidentiary hearing should be held to determine these issues.
    VACATED AND REMANDED.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***