An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA04-747


Filed: 5 April 2005


v .                         Wake County
                            No. 03 CVS 15377

    Appeal by defendant from order entered 17 March 2004 by Judge Orlando F. Hudson, Jr., in Wake County Superior Court. Heard in the Court of Appeals 13 January 2005.

    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.
    Judges HUNTER and BRYANT concur.
    Report per Rule 30(e).

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