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.
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).
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