SOUTHERN EQUIPMENT COMPANY, INC.
d/b/a READY MIXED CONCRETE COMPANY,
Plaintiff-Appellee,
v
.
Wake County
No. 03 CVS 15377
LAURA & ASSOCIATES, INC.,
Defendant-Appellant.
Vann & Sheridan LLP by James R. Vann and Nan E. Hannah, for
plaintiff-appellee.
Horton and Gsteiger, P.L.L.C., by Urs R. Gsteiger for
defendant-appellant.
JACKSON, Judge.
Defendant, Laura & Associates, Inc., appeals the order of the
trial court granting plaintiff's, Southern Equipment Company, Inc.
d/b/a Ready Mixed Concrete Company, motion for summary judgment and
the denial of defendant's motion for change of venue.
Plaintiff brought a civil action in the Superior Court of Wake
County on 11 November 2003 against defendant alleging a failure to
make payments on its open account agreement. The action sought
fifty-six thousand forty-five dollars and five cents ($56,045.05)
which was the amount alleged by plaintiff to be due on the account,
attorney fees of eight thousand six hundred two dollars and ninety-nine cents ($8,602.99) as provided in the Commercial Credit
Application and Open Account Agreement (“open account agreement”)
between plaintiff and defendant, as well as interest at a rate of
one and one half percent (1 ½%) per month from 26 August 2003 until
the outstanding balance was paid in full, as provided by the terms
of the open account agreement.
In its answer defendant admitted the existence of a
contractual relationship with plaintiff, admitted receiving the
demand letter but alleged it contained inaccurate information of
which plaintiff was advised, contended the complaint failed to
state a claim for which relief could be granted, contended
plaintiff was barred from recovery as it had failed to mitigate
damages and contended venue was improper. Plaintiff filed a motion
for summary judgment supported by the affidavit of Ron Johnson
(“Johnson”) in which Johnson testified: he was plaintiff's
Corporate Credit Manager; was familiar with, and had personal
knowledge of, the detailed account records that were attached to
the complaint and the affidavit; the account records were true and
accurate; the entries were made in the normal course of business,
at or near the time of the transaction they reflect, by, or on
information from, persons with knowledge of the transactions; he
did not know of any additional credits or offsets due on
defendant's account; defendant had not requested any additional
credits to the account; and defendant had refused to pay for the
materials. In response to plaintiff's motion defendant offered the
affidavit of Laura Shelton (“Shelton”). In the affidavit Shelton
testified: she was the owner of defendant; she had personal
knowledge of the facts and circumstances of the complaint; she was
familiar with the books and records of defendant and had compared
defendant's books to the records attached to Johnson's affidavit;
the records attached to Johnson's affidavit were incorrect in that
they did not show payments in excess of fifteen thousand dollars
($15,000.00) made by defendant to plaintiff in late 2003 and on
several occasions employees of plaintiff had advised her their
numbers as to the amount owed on defendant's account were
incorrect, but the alleged errors were never corrected.
Defendant moved in its answer for change of venue on the
ground the Superior Court of Wake County was an improper venue for
this action. In support of this motion defendant contended
plaintiff was a resident of Forsyth County and the convenience of
witnesses and ends of justice would be served by the change of
venue.
In opposition to defendant's motion for change of venue
plaintiff submitted a record of the North Carolina Secretary of
State showing plaintiff's registered office to be located in Wake
County. Plaintiff also pointed out that defendant had stated no
specific grounds in support of its contention that the convenience
of witnesses or the ends of justice would be served by a change of
venue aside from asserting that all of plaintiff's witnessesresided in Forsyth County. Plaintiff contended its significant
witnesses, in fact,
all resided in Wake County.
The trial court denied defendant's motion for change of venue
and granted plaintiff's motion for summary judgment. Defendant
timely appealed.
Defendant first raises the issue of whether the trial court
erred by granting plaintiff's motion for summary judgment, claiming
Shelton's affidavit was sufficient to establish a genuine issue of
material fact.
Summary judgment is appropriate “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 [a] party is entitled to a
judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule
56(c)(2003)
.
“An issue is material if the facts alleged would constitute a
legal defense, or would affect the result of the action, or if its
resolution would prevent the party against whom it is resolved from
prevailing in the action.” Best v. Ford Motor Co., 148 N.C. App.
42, 44, 557 S.E.2d 163, 165 (2001), aff'd, 355 N.C. 486, 562 S.E.2d
419 (2002) (quoting Koontz v. Winston-Salem, 280 N.C. 513, 518, 186
S.E.2d 897, 901 (1972)). An issue is genuine if it is supported by
substantial evidence. Id.
Once the moving party shows no genuine issue of material fact
exists, the burden shifts to non-movant to show existence of such
genuine issue by a showing of specific facts; mere allegations are
insufficient. Lexington State Bank v. Miller, 137 N.C. App. 748,751, 529 S.E.2d 454, 455-56, disc. review denied, 352 N.C. 589, 544
S.E.2d 781 (2000). In reviewing a trial court's grant of summary
judgment, the evidence must be viewed in a light most favorable to
the non-moving party. Craven County Bd. of Educ. v. Boyles, 343
N.C. 87, 90, 468 S.E.2d 50, 52 (1996).
The facts of this case are similar to those presented in the
Lexington case supra. The facts in Lexington were that the Millers
entered into a loan agreement with the Lexington State Bank as
lender. After the Millers defaulted on the loan the bank
instituted an action to recover the remaining deficiency after
foreclosing on the collateral. The bank moved for summary judgment
and supported its motion with the loan and security agreements, the
balance due on the loan and an accounting of the credits to the
Miller's loan account, including amounts received from foreclosure
sales on the collateral.
The Millers responded in opposition to the motion for summary
judgment with Mrs. Miller's affidavit (Mr. Miller was deceased)
contending an issue of material fact existed as to the amount of
the outstanding loan balance. Mrs. Miller's affidavit specifically
stated: “We strongly contest the amount which Lexington State Bank
seeks to recover in this lawsuit. There were payments made toward
these loans prior to my husband's death which have not been
accounted for or credited by Lexington State Bank.”
This Court found the affidavit to contain only general
allegations and conclusions unsupported by specific facts as to the
dates of the payments, their amounts or any other relevantinformation. As Mrs. Miller's affidavit contained no specific
facts we found it insufficient to create an issue of fact as to the
amount owed.
Here, plaintiff introduced evidence, that would be admissible
at trial, in support of its motion which is sufficient to meet the
threshold burden of showing no genuine issue of material fact
exists. Plaintiff's motion is supported by Johnson's affidavit,
which was based on his personal knowledge, and the records of
defendant's account showing a detailed accounting of the credits
and debits made to the account and the outstanding balance on the
account.
As plaintiff's initial burden was met, the burden then shifted
to defendant to produce specific facts to show, in spite of
plaintiff's evidence, a genuine issue of material fact existed.
Defendant failed to do so. In opposition to plaintiff's motion
defendant submitted Shelton's affidavit which merely alleged
Johnson's affidavit and supporting account record were incorrect
and did “not show payments of over $15,000 made to plaintiff by
defendant in late 2003.” Shelton's affidavit provides little more
specific facts than did the affidavit in Lexington State Bank. We
conclude, viewing the evidence in the light most favorable to
defendant, Shelton's affidavit was insufficient to create a genuine
issue of material fact regarding the amount owed as it did not
present specific facts regarding the amounts, number or dates of
the allegedly uncredited payments and was therefore little morethan a general denial of the amount owed. We find no error in the
granting of summary judgment for plaintiff.
Defendant next raises the issue of whether the trial court
erred in denying its motion for change of venue. Defendant bases
this assignment of error on the contention Wake County was an
improper venue because neither plaintiff nor defendant were
residents of Wake County.
Venue is proper if, at the commencement of the action, any of
the parties reside in the county in which the action was filed.
N.C. Gen. Stat. . 1-82 (2003). For purposes of suing or being sued
the residence of a domestic corporation is: (1) where the
registered or principal office is located; (2) where the
corporation maintains a place of business; (3) if there is no
principal office and no place of business can reasonably be found,
any place the corporation regularly engages in carrying on business
N.C. Gen Stat. . 1-79(a)(2003).
Defendant's only evidence on this assignment of error is to
show plaintiff qualifies as a resident of Forsyth County under the
provisions of N.C. Gen. Stat. . 1-79(a) and offers no evidence
showing plaintiff does not also qualify as a resident of Wake
County under . 1-79(a). Plaintiff attached to its memorandum of
law in opposition to defendant's motion for change of venue a
record from the North Carolina Secretary of State showing its
registered agent to be located in Wake County and defendant did not
contest the accuracy of this record at the hearing on the change of
venue motion. We conclude Wake County was a proper venue for theaction and therefore find no error in the denial of defendant's
motion to change venue.
Affirmed.
Judges HUNTER and BRYANT concur.
Report per Rule 30(e).
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