JERRY ALAN REESE, P.C., d/b/a
The Tryon Legal Group,
No. 03 CvS 17958
NUNTIA E. DAVIS,
Jerry Alan Reese, P.C., by Jerry Alan Reese, for plaintiff-
Ellis M. Bragg for defendant-appellant.
Nuntia E. Davis (defendant) engaged Jerry Alan Reese (plaintiff) on 3 December 2002 to represent defendant in connection with various legal issues relating to defendant's investment and business real property portfolio. The terms of plaintiff's representation were set forth in an engagement letter dated 11 December 2002, effective as of 3 December 2002, and signed by defendant on 16 December 2002.
Plaintiff provided defendant with legal services in connection with various legal matters from 3 December 2002 through 21 July 2003. Throughout the period of representation, plaintiff submitted itemized monthly invoices to defendant in accordance with the termsof the engagement letter. All fees were billed at the rate stated in the engagement letter, and the total billing for the entire period of the representation was $29,089.52. Defendant made a few payments on her account, and by the end of September 2003 had paid $13,114.03 to plaintiff.
Plaintiff sent four letters to defendant over the period of 8 July 2003 to 7 October 2003, detailing defendant's outstanding balance, notifying defendant of plaintiff's intention to initiate legal action if defendant did not take immediate steps to pay her account, and notifying defendant of the North Carolina State Bar's fee dispute resolution program. Defendant failed to contact the State Bar within the time permitted. Plaintiff filed a complaint and summons against defendant on 17 October 2003 to recover fees for his legal services.
Defendant represented herself at trial. Defendant filed an unverified answer on 1 December 2003 denying plaintiff's allegations. Plaintiff moved for summary judgment, supporting his motion with a personal affidavit, a copy of the engagement letter signed by defendant, copies of the bills sent to defendant detailing all of the services performed, and the letters notifying defendant of the N.C. State Bar's Fee Dispute Resolution program. Defendant filed a request for dismissal of plaintiff's motion for summary judgment on 11 March 2004. A summary judgment hearing was held on 16 March 2004. Defendant did not appear for the hearing despite notice of the hearing having been sent to her. In an order entered 16 March 2004, the trial court granted plaintiff's summaryjudgment motion. Defendant appeals.
Defendant assigns as error the trial court's granting of plaintiff's motion for summary judgment. Defendant argues that all of the competent evidence presented to the trial court established that a genuine issue of material fact existed. Specifically, defendant argues that there was a genuine issue of material fact as to whether the attorney's fees and charges claimed by plaintiff were: (1) reasonable and not excessive, and (2) actually and necessarily incurred.
A 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). A moving party "has the burden of establishing the lack of any triable issue of fact. His papers are carefully scrutinized and all inferences are resolved against him." Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976).
In the present case, plaintiff alleged in his complaint that defendant owed plaintiff $15,974.14 for legal services rendered by plaintiff to defendant pursuant to an engagement agreement signed by defendant on 16 December 2002. In support of his motion for summary judgment, plaintiff presented the trial court with a personal affidavit and seven attached exhibits. The exhibits included the original engagement letter between plaintiff and defendant, in which defendant agreed, among other things, to pay$250.00 per hour for plaintiff's time and $90.00 per hour for plaintiff's paralegal's time in exchange for plaintiff's services relating to defendant's investment and business property portfolio. Also included in the exhibits were nine monthly itemized invoices from plaintiff to defendant, dated from 2 January 2003 to 2 October 2003. The invoices detailed the services performed for defendant, as well as the amount received by plaintiff from defendant in payment for these services, and the balances still owed by defendant. Plaintiff also included copies of the four letters he had sent to defendant that detailed defendant's outstanding balance, and that notified defendant of plaintiff's intention to seek legal recourse to recoup his fees if defendant did not take steps to pay plaintiff. Two of these letters expressly told defendant that should she wish to dispute plaintiff's fees or expenses, she should contact the fee dispute coordinator at the N.C. State Bar. Plaintiff's evidence showed that plaintiff and defendant had entered into a fixed hourly fee legal services contract; that plaintiff had rendered legal services to defendant over a period of several months; that plaintiff had billed defendant in accordance with the contract; that defendant had only partially paid plaintiff for services rendered; and that defendant owed plaintiff $15,974.14.
Defendant did not dispute these facts. "[O]nce the moving party presents an adequately supported [summary judgment] motion, the opposing party must come forward with specific facts (not mere allegations or speculation) that controvert the facts set forth inthe movant's evidentiary forecast." Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994). While defendant offered many affirmative defenses and allegations of her own in her answer, she did not deny any of plaintiff's averments other than to state at the end of her answer that she "denies the amount of [plaintiff's] legal fees[.]" See N.C. Gen. Stat. § 1A-1, Rule 8(b) (2003) (stating that "[a] party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies"). "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in a responsive pleading." N.C. Gen. Stat. § 1A-1, Rule 8(d) (2003); see also Brown v. American Messenger Services, Inc., 129 N.C. App. 207, 213-14, 498 S.E.2d 384, 388, disc. review denied, 348 N.C. 692, 511 S.E.2d 644 (1998). An answer is a required pleading under Rule 7 of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. § 1A-1, Rule 7(a) (2003). Therefore, defendant's failure to admit or deny plaintiff's averments, other than to deny the amount owed, "admitted" the allegations in plaintiff's complaint pursuant to N.C.G.S. § 1A-1, Rule 8(d).
Furthermore, defendant did not present to the trial court any genuine issue of material fact when she requested that plaintiff's motion for summary judgment be dismissed. Nor did defendant argue that summary judgment should be denied because there were credibility issues. Rather, she only objected to the summaryjudgment hearing being held. Defendant argued that the trial court's scheduling order, which calendared the case for trial on 13 December 2004, preempted any summary judgment motion , and that therefore, plaintiff's motion for summary judgment should be dismissed.
In addition to failing to present a genuine issue of material fact in her request that plaintiff's summary judgment motion be dismissed, defendant neither attended the summary judgment hearing nor filed opposing affidavits to plaintiff's motion. See N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003) (allowing the party against whom a summary judgment is sought to "serve opposing affidavits at least two days before the hearing"). Therefore, the only information for the trial court to consider on defendant's behalf in ruling on plaintiff's motion for summary judgment was defendant's answer. As stated above, defendant's answer included allegations and affirmative defenses, but it did not "set forth specific facts showing that there [was] a genuine issue for trial." See N.C. Gen. Stat. § 1A-1, Rule 56(e) (2003) (stating that an adverse party may not rest upon allegations, but "must set forth specific facts" to challenge a supported motion for summary judgment).
Moreover, defendant's answer was unverified and was thus not sufficient as an opposing affidavit. While "[c]ertain verified pleadings may be treated as affidavits for the purposes of a motion for summary judgment[,]" Venture Properties I v. Anderson, 120 N.C. App. 852, 855, 463 S.E.2d 795, 796, disc. review denied, 342 N.C. 898, 467 S.E.2d 908 (1995), an unverified pleading cannot beconsidered by the trial court in ruling on a motion for summary judgment. Id. at 855, 463 S.E.2d at 797; see also Tew v. Brown, 135 N.C. App. 763, 767, 522 S.E.2d 127, 130 (1999), disc. review improvidently granted, 352 N.C. 145, 531 S.E.2d 213 (2000); Coble Cranes & Equipment Co. v. B & W Utilities, Inc., 111 N.C. App. 910, 913, 433 S.E.2d 464, 466 (1993). Having failed to submit materials in opposition to plaintiff's summary judgment motion, defendant failed to counter plaintiff's showing that there were no issues of fact. The trial court did not err in concluding that there was no genuine issue of material fact.
Defendant also argues that the trial court erred in entering summary judgment for plaintiff when plaintiff's evidence submitted in support of his motion for summary judgment was patently unreliable, incomplete, and subject to different interpretation by reasonable persons. Defendant asserts that even in the absence of a response or information from the opposing party, a moving party's motion for summary judgment should be denied when:
(1) the movant's supporting evidence is self contradictory or circumstantially suspicious or the credibility of a witness is inherently suspect either because he is interested in the outcome of the case and the facts are peculiarly within his knowledge or because he has testified as to matters of opinion involving a substantial margin for honest error,(2) there are significant gaps in the movant's evidence or it is circumstantial and reasonably allows inferences inconsistent with the existence of an essential element, or (3) although all the evidentiary or historical facts are established, reasonable minds may still differ over their application to some principle.
Kidd, 289 N.C. at 366-67, 222 S.E.2d at 408. However, despitedefendant's contentions to the contrary, there is nothing in the record showing that plaintiff's affidavit or supporting evidence was self-contradictory, inconsistent or incomplete, or otherwise unclear such that reasonable minds might differ in interpreting the evidence. Our Supreme Court has held that
summary judgment may be granted for a party with the burden of proof on the basis of his own affidavits (1) when there are only latent doubts as to the affiant's credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction . . . ; and (3) when summary judgment is otherwise appropriate.
Id. at 370, 222 S.E.2d at 410. In this case, although defendant asserts that plaintiff's supporting evidence was not credible because plaintiff was an interested party, defendant does not show how plaintiff's affidavit or supporting evidence was inherently incredible or inconsistent. Defendant also fails to point to specific areas of impeachment or contradiction in plaintiff's supporting evidence, or otherwise introduce any materials opposing plaintiff's summary judgment motion. Since summary judgment was otherwise appropriate, the trial court did not err in granting summary judgment to plaintiff solely on the basis of plaintiff's own affidavit and supporting evidence.
Pursuant to Rule 34 of the North Carolina Rules of Appellate Procedure, plaintiff has moved for the imposition of sanctions against defendant and her counsel of record. Plaintiff argues both that "the appeal was not well grounded in fact and warranted by existing law or a good faith argument for the extension,modification, or reversal of existing law" and that the appeal was taken for the improper purpose of causing unnecessary delay and needlessly increasing the cost of litigation. See N.C.R. App. P. 34(a)(1) & (2). We agree that this appeal is frivolous under this definition. We remand this case to the trial court to determine an appropriate sanction against defendant within the scope of N.C.R. App. P. 34(b)(2) & (3). N.C.R. App. P. 34(c).
Affirmed; remanded for sanctions.
Judges TYSON and GEER concur.
Report per Rule 30(e).
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