An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-1222

NORTH CAROLINA COURT OF APPEALS

Filed: 16 August 2005

CAROLINA BUILDERS CORPORATION,        
Plaintiff-Appellee,

v .                         Wake County
                            No. 02 CVS 02517
VELVET A. BROWN f/k/a
VELVET A. JONES,
AND ELI BROWN, III,
    Defendants-Appellants.

    Appeal by defendant Velvet A. Brown from judgment entered 31 October 2003 and order entered 5 March 2004 by Judge Evelyn W. Hill in Superior Court, Wake County. Heard in the Court of Appeals 7 June 2005.

    Smith Debnam Narron Wyche Saintsing & Myers, LLP, by Byron L. Saintsing and Chad A. Sharkey, for plaintiff-appellee.

                            
    Stark Law Group, PLLC, by Thomas H. Stark and W. Russell Congleton, for defendants-appellants.

    McGEE, Judge.
    
    Carolina Builders Corporation (plaintiff) brought an action on 26 February 2002 against Velvet A. Brown (defendant) for breach of a guaranty agreement. Plaintiff had extended credit to defendant's husband, Eli Brown, III (Brown), who worked as a building contractor. Plaintiff provided Brown building materials, supplies, and labor, charging the payments to Brown's credit account. Defendant executed a guaranty of the credit account on 9 June 1994. The guaranty stated that defendant "absolutely and unconditionally guarantees to [plaintiff's] successors and assigns the due andpunctual payment of any and all debts, obligations, primary or secondary . . . of [Brown][.]" The guaranty also provided for the recovery of "all costs, expenses, and reasonable attorney's fees at any time paid or incurred in endeavoring to collect said indebtedness[.]" Brown failed to make payments on the credit account. Defendant also failed to make payments to plaintiff as specified by the guaranty signed by defendant. Plaintiff filed suit to recover delinquent payments totaling $266,093.92, plus expenses and attorney's fees.
    Plaintiff filed a motion for summary judgment as to defendant only on 21 August 2003. A hearing on the motion for summary judgment was noticed for hearing on 27 October 2003, and was continued to 31 October 2003. The reason for the continuance is not clear from the record, which includes only defendant's motion to continue the 27 October 2003 hearing. Defendant's motion was dated 26 October 2003, but was filed 31 October 2003. Plaintiff's motion for summary judgment was granted 31 October 2003. Defendant filed a motion to set aside the judgment on 14 November 2003, which was denied in an order entered 5 March 2004. Defendant appeals.
    Defendant argues that the trial court erred in: (1) granting plaintiff's motion for summary judgment; and (2) denying defendant's motion to set aside the judgment. Defendant specifically contends the trial court erred in not admitting defendant's affidavit, Brown's affidavit, and Brown's supplementary affidavit.     Brown stated in his affidavit that his account with plaintiff was created "in furtherance of a deceptive course ofconduct" on the part of plaintiff, that "a full accounting of the relationships between [plaintiff], [Brown], and [defendant] will reveal that the amount claimed by [plaintiff] in this lawsuit on [Brown's credit account] is an inflated amount[,]" and that "the only way to adequately trace out [the] records is by means of an independent audit of the books and records of [plaintiff][.]"
    Defendant stated in her affidavit that she "[m]ay have signed a guaranty at some point, but did so only to facilitate [Brown's] . . . relationship with [plaintiff]." Defendant further stated in her affidavit that "[m]y recollection is that the guarantee that I signed was only for construction loans on individual homes and never for a materials account[,]" and that she believed that charges were incorrectly applied to Brown's account but that she had "no means to engage a forensic accountant to examine the books and records of [plaintiff]."
    Brown's supplementary affidavit refers to an agreement between Brown and plaintiff regarding Brown's "retirement of obligations." A letter from Brown's former counsel to plaintiff that refers to this agreement is also in the record, but the letter contains no language that contradicts plaintiff's allegations of the amount due on Brown's credit account. The letter also contains no language that contradicts the guaranty of the account signed by defendant.
    Defendant contends that the three affidavits were timely submitted to the trial court, and that the trial court erred by not admitting the three affidavits into evidence in considering plaintiff's motion for summary judgment. N.C. Gen. Stat. § 1A-1,Rule 56(c) (2003) states that:
        The adverse party may serve opposing affidavits at least two days before the hearing. If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reasonable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require.
However, based on the record on appeal, we cannot determine whether the three affidavits submitted by defendant in opposition to plaintiff's motion for summary judgment were either timely filed or timely served upon plaintiff. "[I]t is the responsibility of each party to ensure the record on appeal clearly sets forth evidence favorable to that party's position." Ronald G. Hinson Electric, Inc. v. Union County Bd. of Educ., 125 N.C. App. 373, 375, 481 S.E.2d 326, 328 (1997). N.C.R. App. P. 9(a)(1)(e) states that "so much of the evidence . . . as is necessary for an understanding of all errors assigned, or a statement specifying that the verbatim transcript of proceedings" must be included in the record on appeal. In the present case, defendant has failed to include a complete record that supports her position and allows an assessment of her contentions. There is no evidence in the record that the three affidavits were timely submitted. The summary judgment hearing was originally noticed for hearing on 27 October 2003. Nothing in the record shows that the affidavits were served upon plaintiff "at least two days before the hearing." See N.C.G.S. § 1A-1, Rule 56(c). The hearing was continued to 31 October 2003,but nothing in the record shows the reason for the continuance. Defendant submitted a motion to continue the 27 October 2003 hearing; but the motion was not entered until 31 October 2003. We cannot determine if this motion was the cause for the continuance.
    Moreover, it is not clear from the record whether the trial court, in continuing the summary judgment hearing, (1) was allowing defendant time, as the responding party, "to prepare a response," (2) was "proceed[ing] with the matter without considering [defendant's] untimely served affidavit[s]," or (3) was "tak[ing] such other action as the ends of justice require[d]." See N.C.G.S. § 1A-1, Rule 56(c). The record does not contain a transcript of either the 27 October 2003 or the 31 October 2003 hearing on plaintiff's motion for summary judgment. Nor is there any narrative of what occurred at the 27 October 2003 hearing. Accordingly, there is no evidence in the record showing whether or not the trial court closed the record at the 27 October 2003 hearing. While Brown's supplemental affidavit shows a service date of 29 October 2003, there is no certificate of service for Brown's first affidavit or for defendant's affidavit. It is therefore impossible for our Court to determine whether the affidavits were served upon plaintiff in a timely manner, and we cannot conclude that the trial court erred by not admitting the affidavits into evidence.
    Defendant next argues that the trial court erred in granting plaintiff's motion for summary judgment. Defendant contends that the three affidavits present genuine issues of material fact thatpreclude summary judgment. We disagree. "[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). 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.G.S. § 1A-1, Rule 56(c). A moving party "has the burden of establishing the lack of any triable issue of fact." Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976). However, "once 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 in the movant's evidentiary forecast." Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581, 583, 448 S.E.2d 280, 281 (1994).
    In the present case, plaintiff adequately supported its motion for summary judgment. Plaintiff alleged in its complaint that defendant owed plaintiff $266,093.92 in delinquent payments on Brown's account, plus expenses and attorney's fees, pursuant to the guaranty agreement signed by defendant on 9 June 1994. Plaintiff presented the trial court with proof of the loans made to Brown, invoices, and account statements displaying the past due balance. The invoices detailed the goods received by Brown, and the balancesstill owed by Brown. Plaintiff also presented the trial court with the guaranty agreement, which clearly stated that defendant would be liable for any and all payments on debts incurred by Brown. Plaintiff thus demonstrated that there was a lack of any triable issue of fact.
    Defendant did not come forward with specific facts that controverted the evidence set forth by plaintiff. Defendant does not dispute that the language in the guaranty makes her liable for payments on Brown's account. Defendant admitted in her answer that "the terms and conditions of [the guaranty] speak for themselves." Defendant denied some allegations in plaintiff's complaint, but the allegations defendant denied were consistent with the language in the guaranty.
    Furthermore, defendant did not present to the trial court any genuine issue of material fact when defendant requested that plaintiff's motion for summary judgment be dismissed. Defendant contends that the three affidavits presented a genuine issue of material fact because the affidavits alleged fraud on the part of plaintiff. However, no evidence substantiated these assertions of fraud. Nor had defendant alleged fraud in her counterclaim. Furthermore, t here is no evidence that the affidavits alleging fraud were timely filed or timely served upon plaintiff. Moreover, because the affidavits were not admitted into evidence by the trial court , the affidavits could not offer a genuine issue of material fact. Therefore, the trial court did not err in granting summary judgment for plaintiff.     Defendant's final argument is that the trial court erred in denying defendant's motion made pursuant to Rule 59 of the North Carolina Rules of Civil Procedure to set aside the summary judgment and to grant defendant a new trial. Specifically, defendant contends that the trial court's failure to admit the three affidavits was an error of law, and defendant therefore should be granted a new trial. We disagree.
    A trial court has discretion to grant a motion made pursuant to Rule 59 of the North Carolina Rules of Civil Procedure. Penley v. Penley, 314 N.C. 1, 9, 332 S.E.2d 51, 56 (1985). As such, "an appellate court's review of a trial judge's discretionary ruling either granting or denying a motion to set aside a verdict and order a new trial is strictly limited to the determination of whether the record affirmatively demonstrates a manifest abuse of discretion by the judge." Worthington v. Bynum and Cogdell v. Bynum, 305 N.C. 478, 482, 290 S.E. 2d 599, 602 (1982). In the present case, despite concluding that Rule 59 of the North Carolina Rules of Civil Procedure was not applicable to an order for summary judgment, where there was no verdict to set aside, the trial court still reviewed and, in its discretion, denied defendant's motion to set aside the summary judgment, concluding that defendant had "failed to establish any grounds to justify setting aside the grant of summary judgment[.]" Defendant does not argue and we do not see anything in the record that shows that the trial court abused its discretion in denying defendant's Rule 59 motion. Moreover, as we previously stated, there is nothing in the record to show thatdefendant's affidavits were timely filed or timely served upon plaintiff pursuant to N.C.G.S. § 1A-1, Rule 56(c). Therefore, there is no evidence that the trial court committed an error of law by not admitting the affidavits. Defendant's argument is without merit.
    Affirmed.
    Judges HUNTER and LEVINSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***