An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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_1673


Filed: 17 January 2006


v .                         Guilford County
                            No. 03 CVS 720

    Appeal by defendant from order entered 31 July 2003 by Judge Catherine C. Eagles and judgment entered 26 August 2004 by Judge John O. Craig III in Guilford County Superior Court. Heard in the Court of Appeals 15 June 2005.

    Keziah, Gates & Samet, L.L.P., by Andrew S. Lasine, for plaintiff-appellee.

    Douglas S. Harris for defendant-appellant.

    GEER, Judge.

    Defendant Central Carolina Surgical Eye Associates, P.A., d/b/a Southeastern Eye Center ("Southeastern Eye Center"), appeals from a summary judgment order entered in favor of plaintiff JG Winston-Salem, L.L.C., d/b/a Hanes Mall ("Hanes Mall"). Hanes Mall's lawsuit alleged that Southeastern Eye Center had breached its lease by failing to pay certain amounts required by the rental agreement. Southeastern Eye Center argues that the disputed portions of the lease agreement are unenforceable as against public policy. Because Southeastern Eye Center has presented this Courtwith no authority tending to show that there is an established public policy in this State that prohibits the disputed clauses, we affirm the trial court's grant of summary judgment in favor of Hanes Mall.


    On 10 September 1999, Southeastern Eye Center entered into a three-year lease with Hanes Mall. Southeastern Eye Center planned to use its rented space at the mall to operate a business offering eye examination services, eye care products, and refractive eye surgery by licensed doctors of ophthalmology. In addition to the annual fixed rent, the lease agreement included clauses providing for (1) a common area management fee requiring Southeastern Eye Center to pay a proportionate share of the mall's total cost of operating and maintaining the common areas, signs, utilities, security, and traffic control at the mall; (2) initial and monthly merchants' association and marketing fees that went into a fund used by Hanes Mall for promoting the mall; and (3) a "Percentage Rent" that required Southeastern Eye Center to pay Hanes Mall 5% of Southeastern Eye Center's monthly profits exceeding $933,600.00.
    On 14 April 2003, Hanes Mall filed suit against Southeastern Eye Center asserting that Southeastern Eye Center owed it $25,717.36 for unpaid percentage rent and common area maintenance expenses. In Southeastern Eye Center's answer, it asserted as an affirmative defense that "certain portions of the lease which require a percentage of sales to be paid is void as a matter ofpublic policy and is specifically prohibited by the medical rules of ethics."
    Hanes Mall subsequently filed a motion for partial summary judgment regarding Southeastern Eye Center's affirmative defense. Hanes Mall supported its motion with an affidavit from its general manager attaching the lease and a letter that Southeastern Eye Center had faxed to Hanes Mall as justification for its refusal to pay the percentage rent. The letter had been sent by William H. Breeze, Jr., the Board Attorney for the North Carolina Medical Board, to Mark McDaniel at Southeastern Eye Center and stated:
        As a follow-up to our discussion please be advised that an arrangement wherein a medical practice leases office space with a rental fee based on payment of a percentage of the gross receipts would in my opinion risk running afoul of the ethical prohibition on the splitting of professional fees. Such a rental arrangement might result in discipline for any corporation or licensee found to have enguaged [sic] in such a transaction. This opinion is my own and as you know I have not consulted the Board on this matter.

(Emphasis added.) The record does not reveal that Southeastern Eye Center submitted any affidavits or other materials in opposition to the motion for partial summary judgment.
    On 31 July 2003, Judge Catherine C. Eagles entered an order granting partial summary judgment on the affirmative defense, after finding "from the pleadings, affidavits and arguments of counsel that the percentage rent provisions of the lease between plaintiff and defendant do not violate public policy based on the undisputed specific facts of record in this case and are valid and enforceable . . . ." Southeastern Eye Center appealed from that order, butthis Court dismissed the appeal as being interlocutory. JG Winston-Salem, LLC v. Cent. Carolina Surg. Eye Assocs., P.A., 165 N.C. App. 274, 600 S.E.2d 521 (2004) (unpublished).
    On 5 August 2004, Hanes Mall moved for summary judgment with respect to the entire case, attaching a second affidavit from its general manager. The record again does not reveal that Southeastern Eye Center submitted any opposing materials. Following a hearing, the trial court granted plaintiff's motion for summary judgment on 26 August 2004, awarding plaintiff the sum of $25,717.36 plus interest and attorneys' fees.
    Southeastern Eye Center has timely appealed. In its assignments of error, Southeastern Eye Center challenges only Judge Eagles' order granting partial summary judgment on its affirmative defense.

    This Court reviews decisions granting summary judgment de novo. Falk Integrated Techs., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 574 (1999). Summary judgment is appropriately 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.R. Civ. P. 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then thenon-moving party must "produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial." Id. In opposing a motion for summary judgment, the non-moving party "may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." N.C.R. Civ. P. 56(e).
    Southeastern Eye Center argues that this litigation presents an issue of first impression in North Carolina, namely, whether public policy prohibits "percentage rent" clauses, such as the one in the Hanes Mall lease, in leases involving doctors' offices. Southeastern Eye Center contends that such clauses constitute fee- splitting and, as such, are contrary to North Carolina's public policy.
    In support of its contention, Southeastern Eye Center, according to its brief, relies "upon the views of the North Carolina Medical Board which issued an official letter on the subject on January 12, 1995, stating 'the practice of splitting profits with a non-licensee is improper.'" The referenced letter does not appear in the record and was not, according to the parties, provided to Judge Eagles for review in connection with the motion for partial summary judgment. Southeastern Eye Center, however, urges us to take judicial notice of the letter's existence and contents. We are not able to do so.     The North Carolina appellate courts use the mechanism of judicial notice to consider "the public laws of this State, of the United States, and of any other state or territory of the United States, as well as of any foreign country." Hinkle v. Hartsell, 131 N.C. App. 833, 836, 509 S.E.2d 455, 457 (1998). We also take judicial notice of "important administrative regulations having the force of law." Southern Ry. Co. v. O'Boyle Tank Lines, Inc., 70 N.C. App. 1, 8, 318 S.E.2d 872, 877 (1984). "Further, judicial notice is appropriate to determine the existence and jurisdiction of the various courts of the State; their terms or sessions, and judges; the counties comprising the various judicial districts; and, any earlier proceedings in the court involving the same case." Hinkle, 131 N.C. App. at 836, 509 S.E.2d at 457.
    Moreover, there exists a range of miscellaneous facts that may properly be the subject of judicial notice, including:
        "[t]he laws of nature; human impulses, habits, functions and capabilities; the prevalence of a certain surname; established medical and scientific facts; well-known practices in farming, construction work, transportation, and other businesses and professions; the characteristics of familiar tools and appliances, weapons, intoxicants, and poisons; the use of highways; the normal incidence of the operation of trains, motor vehicles, and planes; prominent geographical features such as railroads, water courses, and cities and towns; population and area as shown by census reports; the days, weeks, and months of the calendar; the effect of natural conditions on the construction of public improvements; the facts of history; important current events; general economic and social conditions; matters affecting public health and safety; the meaning of words and abbreviations; and the results of mathematical computations."
Id. (emphasis added) (quoting 1 Kenneth S. Broun, Brandis and Broun on North Carolina Evidence § 27, at 104_09 (5th ed. 1998) (citations omitted)). "[A]lthough our case law provides a laundry list of situations where judicial notice is appropriate, it is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance." Id. (internal quotation marks omitted).
    Southeastern Eye Center has made no showing that the "official letter" upon which it relies constitutes the type of information of which this Court may take judicial notice. Indeed, Southeastern Eye Center has not attempted to provide the Court with a copy of the "official letter" or referenced any compilation of Medical Board letters that is generally available. See Horton v. New South Ins. Co., 122 N.C. App. 265, 268, 468 S.E.2d 856, 858 ("[W]e will not take judicial notice of a document outside the record when no effort has been made to include it."), disc. review denied and cert. denied, 343 N.C. 511, 472 S.E.2d 8 (1996). Nor has Southeastern Eye Center provided any explanation regarding the status of these type of letters, such as whether they carry the force of an administrative regulation.
    Further, the record contains nothing indicating that a prohibition on "percentage rent" clauses falls within the category of "well-known practices in . . . businesses and professions" referenced by Hinkle, 131 N.C. App. at 836, 509 S.E.2d at 457. While Southeastern Eye Center has cited decisions from a variety of other states, each of those decisions was construing a statutespecifically prohibiting fee-splitting by medical professionals with someone who does not render medical services. We have reviewed the General Statutes regulating the medical profession in this State and the regulations adopted by the Medical Board and have identified no comparable statute or regulation. Neither party has cited us to any such authority.
    We recognize that Hanes Mall has attached in an appendix to its brief a print-out from the Internet that purports to be a "position statement" from the North Carolina Medical Board's website. Although Southeastern Eye Center has not attempted to rely upon that statement, we cannot, in any event, consider it since the material is not part of the record on appeal and there has been no showing that the material constitutes "statutes, rules, or regulations" permitted to be included in an appendix under N.C.R. App. 28(d). See Horton, 122 N.C. App. at 268, 468 S.E.2d at 858 ("[I]t was improper for [a party] to attach a document not in the record and not permitted under N.C.R. App. P. 28(d) in an appendix to its brief."); see also Citifinancial, Inc. v. Messer, 167 N.C. App. 742, 748, 606 S.E.2d 453, 457 (Steelman, J., concurring) (writing separately to address the "increasingly frequent abuse" of N.C.R. App. P. 28(d)), appeal dismissed and disc. review denied, 359 N.C. 410, 612 S.E.2d 317 (2005).
    The only information properly in the record regarding the ethics of fee-splitting is the letter from Mr. Breeze, the Medical Board's attorney. Mr. Breeze himself pointed out in his letter: "This opinion is my own and as you know I have not consulted theBoard on this matter." It is not necessary for us to cite authority for the proposition that one individual's personal and informal opinion cannot establish the public policy for our State.
    In the absence of a statute, regulation, rule, prior case law, or other indication of public policy, we, like Judge Eagles, must conclude that Southeastern Eye Center has demonstrated no basis for holding that the Hanes Mall lease provisions are void as against public policy. Accordingly, we affirm the trial court's grant of summary judgment in favor of plaintiff.

    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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