By this appeal, Scott D. Minter (“defendant”) presents several
procedural issues arising from the trial court's entry of summary
judgment in favor of Michael Moss (“plaintiff”). Defendant argues
the trial court erroneously (I) granted plaintiff's motion for
summary judgment where plaintiff failed to give defendant notice of
the summary judgment hearing; (II) excluded defendant's testimony
contesting plaintiff's summary judgment motion; and (III) failed to
exercise its jurisdiction to consider setting the appeal bond atless than $250.00. Defendant also argues the magistrate
erroneously denied defendant's motion for a continuance. We affirm
the judgment below.
Defendant agreed to lease one of plaintiff's beach rental
properties in Wilmington, North Carolina, beginning in January 2003
and ending on 30 May 2003. Defendant agreed to pay $500.00 monthly
rent from January through March and $600.00 for April and May.
Defendant also agreed to leave the premises during May if plaintiff
had a weekly rental for the property and plaintiff would reimburse
defendant $150.00. The lease was silent as to whether pets were
allowed.
Plaintiff contends defendant breached the lease agreement by
failing to vacate the premises during one week in May, for
remaining in the property one day beyond the expiration of the
lease term and for having a pet on the premises. Defendant was
also charged a pet fumigation and clean-up fee. The total amount
of damages demanded was $3,633.11.
Plaintiff initiated a small claims action against defendant to
be heard on 23 June 2003. Defendant moved for a continuance as he
had a nonrefundable vacation to Spain scheduled for the same date.
The magistrate denied the motion and defendant did not appear. A
judgment was entered in plaintiff's favor and defendant appealed by
requesting a trial
de novo in district court. In district court,plaintiff moved for summary judgment. At the summary judgment
hearing, the trial court would not allow defendant to present oral
testimony opposing plaintiff's motion. As defendant had neither
answered plaintiff's complaint nor filed any affidavits in
opposition to plaintiff's summary judgment motion, summary judgment
was entered in favor of plaintiff. Defendant appeals.
Defendant first contends the trial court lacked authority to
consider plaintiff's motion for summary judgment because defendant
received inadequate notice of the hearing. A summary judgment
“motion shall be served at least 10 days before the time fixed for
the hearing” to provide notice to the opposing party. N.C. Gen.
Stat. § 1A-1, Rule 56(c) (2003). Failure to comply with this
mandatory ten-day notice requirement deprives the trial court of
authority to grant summary judgment unless the opposing party
waives notice.
Calhoun v. Wayne Dennis Heating & Air Cond., 129
N.C. App. 794, 800, 501 S.E.2d 346, 350 (1998),
review dismissed,
350 N.C. 92, 532 S.E.2d 524 (1999);
see also Barnett v. King, 134
N.C. App. 348, 517 S.E.2d 397 (1999);
Trust Co. v. Rush, 17 N.C.
App. 564, 195 S.E.2d 96 (1973).
In this case, the summary judgment hearing was held on 11
August 2003; however, the notice sent to defendant on 29 July 2003
indicated the summary judgment hearing would be held on 4 August
2003. Therefore, defendant contends he did not receive propernotice. Plaintiff contends the date in the notice was a
typographical error, as the calendar request that was sent with the
notice indicated the summary judgment hearing would occur on 11
August 2003.
Notwithstanding the parties' arguments as to whether the
notice was proper, defendant waived any objections regarding the
adequacy of the notice by participating in the hearing.
See
Anderson v. Anderson, 145 N.C. App. 453, 456, 550 S.E.2d 266, 269
(2001) (stating “[a] party waives notice of a motion by attending
the hearing of the motion and by participating in the hearing
without objecting to the improper notice or requesting a
continuance for additional time to produce evidence”). The record
indicates defendant informed the trial court he had received notice
of the proceedings and attempted to make arguments in opposition to
plaintiff's motion for summary judgment. Accordingly, we overrule
this assignment of error.
Next, defendant argues the trial court erroneously excluded
defendant's testimony contesting plaintiff's summary judgment
motion. We disagree.
G.S. 1A-1, Rule 56(c) of the Rules of
Civil Procedure provides that summary judgment
will 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 entitledto judgment as a matter of law. The burden of
establishing the lack of any triable issue of
fact is on the party moving for summary
judgment, and the movant's papers are
carefully scrutinized while those of the
opposing party are regarded with indulgence.
If the party moving for summary judgment
successfully carries its burden of proof of
showing that there is no genuine issue as to
any material fact, the opposing party, by
affidavits or otherwise, as provided by Rule
56, must set forth specific facts showing that
there is a genuine issue for trial.
Hillman v. United States Liability Ins. Co., 59 N.C. App. 145, 148,
296 S.E.2d 302, 304-05 (1982) (citations omitted). Oral testimony
is permissible on a motion for summary judgment; however, the
admission of such testimony is in the court's discretion.
Id. at
155, 296 S.E.2d at 308. If the trial court considers oral
testimony, “the trial court is only to rely on such testimony in a
supplementary capacity, to provide a 'small link' of required
evidence, but not as the main evidentiary body of the hearing.”
Strickland v. Doe, 156 N.C. App. 292, 296, 577 S.E.2d 124, 129
(2003).
In this case, the trial court would not allow defendant to
orally oppose plaintiff's motion for summary judgment by arguing
the facts and defendant has not shown the exclusion of this
testimony constituted an abuse of discretion. Accordingly, we
conclude the trial court did not abuse its discretion. Defendant next argues the trial court failed to exercise its
jurisdiction to consider setting the appeal bond at an amount less
than $250.00. Specifically, defendant contends the trial court
erred in ruling defendant should file his motion with the appellate
court. However, “[t]he plain language of [N.C. Gen. Stat. . 1-
285(a)] places the amount of the surety bond in the sole discretion
of the trial court with but one caveat -- the surety amount cannot
exceed $250.”
Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C.
App. 443, 456, 481 S.E.2d 349, 358 (1997). Although it appears the
trial court erroneously concluded it could not consider defendant's
request for a lower appeal bond, this Court is precluded from
deciding this issue as the issue is moot. “A case is considered
moot when 'a determination is sought on a matter which, when
rendered, cannot have any practical effect on the existing
controversy.'”
Lange v. Lange, 357 N.C. 645, 647, 588 S.E.2d 877,
879 (2003).
Finally, defendant contends the magistrate erroneously denied
his motion for a continuance as defendant's vacation plans
conflicted with the court date.
Motions to continue are addressed to the sound
discretion of the trial judge, who must
determine “whether the grant or denial of a
continuance will be in furtherance of
substantial justice.”
Shankle v. Shankle, 289
N.C. 473, 483, 223 S.E.2d 380, 386
(1976). . . . The trial court's decisionwhether to grant or deny a motion to continue
may be reversed only for a manifest abuse of
discretion. An abuse of discretion occurs
where the ruling of the trial court could not
have been the result of a reasoned decision.
May v. City of Durham, 136 N.C. App. 578, 581-82, 525 S.E.2d 223,
227 (2000) (citations omitted). As defendant has not shown the
magistrate's decision constituted an abuse of discretion, we
overrule this assignment of error.
Affirmed.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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