CABLE CO.,
A NORTH CAROLINA CORPORATION,
Plaintiff,
v
.
Johnston County
No. 05 CVD 327
HIGHLANDS CABLE GROUP,
LIMITED PARTNERSHIP, AND
CABLE GROUP, L.L.C.,
Defendants.
Levinson Law Firm, P.A., by James R. Levinson, for plaintiff
appellee.
Creighton W. Sossomon for defendant appellant.
McCULLOUGH, Judge.
Highlands Cable Group and Cable Group, L.L.C. (“defendants”)
appeal the denial of their motions under Rules 59 and 60 for
amendment of and relief from entry of summary judgment in favor of
Cable Co., Inc. (“plaintiff”) and denial of their motion for change
of venue. We conclude that the trial court did not abuse its
discretion in denying relief under Rules 59 and 60 where defendants
failed to show that venue was improper and further failed to
present sufficient evidence that there was a genuine issue of
material fact. Thus, we affirm the order of the trial court.
Plaintiff filed a verified complaint against defendants to
recover monies unpaid by defendants on a lease between the parties.
Defendants subsequently filed an unverified answer and motion for
change of venue alleging that venue in Johnston County was improper
and raising as an affirmative defense the statute of limitations.
Plaintiff then filed a motion for summary judgment and submitted
plaintiff's requests for admissions, which defendants had failed to
answer, in support of their motion. The requests for admissions
stated:
1. The plaintiff is the fee simple owner of
the real property which is the subject of
this Complaint.
2. That the defendant presently occupies the
real property which is the subject of
this Complaint.
3. There is no other written lease between
the parties other [than] that recorded in
Macon County Book U-28, Page 1106-1111.
4. That the parties entered into a lease
recorded book in U-28, page 1106-111[1]
Macon County Registry.
5. The defendants have made no payments for
rent of the real property in question
except for a $1,000.00 payment in the
year of 2003.
6. That by letter dated 1-6-2005, plaintiff
made demand upon the defendant for the
payment of the amount due and the
defendant made no payment following said
date.
The trial judge subsequently denied defendants' motion for
change of venue and granted plaintiff's motion for summary
judgment. Thereafter, defendants motioned the court under Rules 59and 60 for a new trial and to have the judgments set aside. On 3
January 2006 defendants' motions were denied. Defendants appeal.
While we note that defendants' brief on appeal fails to comply
with the standards set forth in the Rules of Appellate Procedure,
namely, Rule 26(g)(1) (2005) (requiring double spacing between each
line of text), we nonetheless will consider the substance of
defendants' argument.
Defendants attempt to argue on appeal that the trial court
erred in granting plaintiff's motion for summary judgment and in
denying defendants' motion for change of venue. However, defendants
failed to file a notice of appeal with respect to the
aforementioned orders. Instead, defendants only filed a notice of
appeal as to the order of the trial court denying defendants'
motions under Rules 59 and 60 of the North Carolina Rules of Civil
Procedure. Therefore, any error claimed by defendants as to the
motions for summary judgment and change of venue are thereby waived
and will not be discussed by this Court.
Defendants contend that the trial court erred in denying
defendants' motion under Rule 59 where there was no evidence to
support venue in Johnston County. We disagree.
“'Generally, a motion for new trial is addressed to the sound
discretion of the trial court, and its ruling will not be disturbed
absent a manifest abuse of that discretion.'” Griffis v.
Lazarovich, 161 N.C. App. 434, 443, 588 S.E.2d 918, 924-25 (2003),
disc. review denied, 358 N.C. 375, 598 S.E.2d 135 (2004) (citation
omitted). 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 (2005). 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)(2005).
In the instant case, plaintiff filed a verified complaint
alleging that they were a North Carolina corporation doing business
throughout North Carolina. Defendants then filed an unverified
answer and motion for change of venue in which they alleged that
plaintiff's principal place of business and registered office were
located in Macon County, North Carolina; that plaintiff did not
conduct business in Johnston County; and that all allegations
pertaining to the action at hand related to transactions which
occurred in Macon County and therefore the only proper venue for
the action was Macon County, North Carolina. However, “[t]he
unverified motion did not prove the matters alleged therein and is
not evidence thereof.” Acceptance Corp. v. Samuels, 11 N.C. App.
504, 511, 181 S.E.2d 794, 798 (1971). No affidavit or other
evidence appears in the record to support the unverified motion.
While generally verified pleadings are not required when
making a motion for change of venue, where there is a verified
pleading filed by the opposing party, an affidavit or verifiedpleading must be submitted by the motioning party to prove the
assertions otherwise. See Swift and Co. v. Dan-Cleve Corp., 26
N.C. App. 494, 495-96, 216 S.E.2d 464, 465-66 (1975). Where a party
fails to prove the matters alleged by affidavit or verified motion,
as here, and the opposing party has otherwise submitted verified
evidence before the court proving venue, it cannot be said that the
trial judge abused his discretion in denying the motion for
amendment of judgment on the denial of the motion for change of
venue. Therefore, this assignment of error is overruled.
Next defendants contend that the trial court erred in denying
defendants' motions under Rules 59 and 60 for a new trial on
defendants' motion for summary judgment and to have summary
judgment set aside. We disagree.
Plaintiff moved the court for summary judgment on the grounds
that the pleadings and answers to requests for admissions showed
that there was no genuine issue of material fact and the trial
court thereafter granted the motion. In addition to the fact that
defendants failed to file any affidavits or verified pleadings,
defendants also failed to answer or object to plaintiff's requests
for admissions and therefore they were deemed admitted. See
Barclays American v. Haywood, 65 N.C. App. 387, 388, 308 S.E.2d
921, 922 (1983). As stated supra, we review the trial court's
denial of the motions under Rules 59 and 60 for an abuse of
discretion.
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)
(2005). A moving party “has the burden of establishing the lack of
any triable issue of fact[,]” and its supporting materials are
carefully scrutinized, with all inferences resolved against it.
Kidd v. Early, 289 N.C. 343, 352, 222 S.E.2d 392, 399 (1976).
Defendants claim that the action by plaintiff was barred by
the statute of limitations where it was filed more than three years
after the date of the first missed lease payment. However, this
contention has no merit. “Where suit is brought more than three
years after the claim arises on an account or other contractual
debt, the bar of the statute of limitations may be avoided if the
debtor has acknowledged his obligation within three years prior to
the date the action is filed.” Electric Service, Inc. v. Sherrod,
293 N.C. 498, 505, 238 S.E.2d 607, 612 (1977). “A part payment
operates to toll the statute if made under such circumstances as
will warrant the clear inference that the debtor in making the
payment recognized his debt as then existing and acknowledged his
willingness, or at least his obligation, to pay the balance.” Id.
In the instant case, defendants admitted to making a payment
of $1,000.00 thereby tolling the statute of limitations and
therefore barring the assertion of such defense in the action.
Moreover, in deciding whether summary judgment is proper, a
court may consider verified pleadings; however, unverified
pleadings will not be considered and do not create a genuine issueof material fact. Where the requests for admissions were deemed
admitted by defendants for failure to answer or object and
defendants failed to file affidavits or verified pleadings in the
instant case, it cannot be said that the trial court abused its
discretion in denying the motions under Rules 59 and 60. Therefore,
this assignment of error is overruled.
Lastly, defendants contend on appeal that the trial court
erred in failing to grant defendants' motion to set aside summary
judgment where the trial court ruled on the summary judgment motion
while a pending motion for change of venue had not yet been ruled
upon. We disagree.
Where a motion asserting improper venue is made in writing
and in apt time “'the question of removal then becomes a matter of
substantial right, and the court of original venue is without power
to proceed further in essential matters until the right of removal
is considered and passed upon.'” Capital Corp. v. Enterprises,
Inc., 10 N.C. App. 519, 521, 179 S.E.2d 190, 192 (1971).
Defendants contend that, where the order denying summary
judgment was entered on 18 October 2005 before the entry of the
order denying the motion for change of venue was entered on 24
October 2005, the court was without jurisdiction to enter the
summary judgment order where the motion for change of venue was
still pending. However, the record reveals that a hearing was held
on the motion for change of venue on 22 August 2005 in which
defendants failed to appear. The record does not contain a
transcript from the hearing; however, plaintiff submitted anaffidavit opposing defendants' motion which stated in sworn
testimony that the trial judge denied the motion for change of
venue orally at the hearing on 22 August. Further, it appears from
the record that before hearing the motion for summary judgment, the
trial judge orally denied the motion for change of venue where an
order had not yet been entered.
From a review of the evidence in the record, it cannot be said
that the trial court abused its discretion in denying the motion to
set aside summary judgment. Therefore, this assignment of error is
overruled.
Accordingly, the order of the trial court denying defendants'
motions under Rules 59 and 60 are affirmed.
Affirmed.
Judges HUNTER and ELMORE concur.
Report per Rule 30(e).
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