Old Southern Life Ins. Co. v. Bank of NC

244 S.E.2d 264 (1978)

OLD SOUTHERN LIFE INSURANCE CO. v. BANK OF NORTH CAROLINA, N. A., and All States Life Insurance Company.

No. 7726SC292.

Court of Appeals of North Carolina.

April 18, 1978.

*267 James, McElroy & Diehl by James H. Abrams, Jr., Charlotte, for plaintiff appellee.

Griffin, Gerdes, Harris, Mason & Brunson by N. Deane Brunson and C. Michael Wilson, and Fleming, Robinson & Bradshaw by A. Ward McKeithan, Charlotte, for defendant appellant.

BRITT, Judge.

Defendant contends in its sole assignment of error that the trial court erred in granting plaintiff's motion for summary judgment. Defendant argues: (1) that plaintiff was not entitled to summary judgment as a matter of law since it offered no affidavits, depositions or evidence of its unverified allegations which were all denied by defendant; and (2) that plaintiff was not entitled to summary judgment since defendant raised genuine issues of material facts on three questions: (a) whether plaintiff is the lawful owner and holder of the CD pursuant to a proper and valid assignment, (b) whether All States was a mere instrumentality or alter ego of III, and (c) whether the deposit by All States was security for the $370,000 loan of III.

Summary judgment is controlled primarily by G.S. 1A-1, Rule 56. Subsection (a) provides that a claimant may move with or without supporting affidavits for a summary judgment in his favor. Subsection (c) provides, among other things, that the judgment shall be rendered 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 *268 of law. Subsection (e) provides that any supporting or opposing affidavits shall be made on personal knowledge, "shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein". Subsection (e) also provides that when a motion for summary judgment is made and supported as provided by Rule 56, an adverse party may not rest upon the mere allegations or denials in his pleading, but his response, by affidavits or as otherwise provided in the rule must set forth specific facts showing that there is a genuine issue for trial.

In addition, Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976), sets forth the following standards for determining when summary judgment is appropriate for the claimant.

Nothing in our State Constitution nor in our decisions precludes summary judgment in favor of a party with the burden of persuasion when the opposing party has failed to respond to the motion in the manner required by Rule 56(e) or (f) and no "genuine issue as to any material fact" arises out of movant's own evidence or the situation itself challenges credibility. Under these circumstances Rule 56(e) provides that summary judgment shall be entered. * * * * * * The purpose of Rule 56 is to prevent unnecessary trials when there are no genuine issues of fact and to identify and separate such issues if they are present. To this end the rule requires the party opposing a motion for summary judgment notwithstanding a general denial in his pleadings to show that he has, or will have, evidence sufficient to raise an issue of fact. If he does not, "summary judgment, if appropriate, shall be entered against him." To hold that courts are not entitled to assign credibility as a matter of law to a moving party's affidavit when the opposing party has ignored the provisions of section (e) and (f) would be to cripple Rule 56. See 10 Wright and Miller § 2740. * * * * * * To be entitled to summary judgment the movant must still succeed on the basis of his own materials. He must show that there are no genuine issues of fact; that there are no gaps in his proof; that no inferences inconsistent with his recovery arise from his evidence; and that there is no standard that must be applied to the facts by the jury. . . .

See also 10 Wright & Miller, Federal Practice and Procedure: Civil § 2727 (1973).

In order to determine whether the movant has complied with the above requirements of Rule 56 and standards set forth by case law, North Carolina courts have followed the interpretation of similar provisions in Federal Rule 56 and allowed the court to consider the pleadings, affidavits that meet the requirements of G.S. 1A-1, Rule 56(e), depositions, answers to interrogatories, admissions, oral testimony, documentary materials, facts which are subject to judicial notice, and such presumptions as would be available at trial. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Butler v. Berkeley, 25 N.C.App. 325, 213 S.E.2d 571 (1975). Affidavits may be relied upon by the parties, but are not required, since the parties may rely upon matters in the record. However, Rule 56(e) does require an adverse party to do more than merely rely on his pleading if the movant supports his motion by affidavit or otherwise. Shuford, N.C. Civil Practice and Procedure § 56-6 (1975).

"[T]he question of when the burden will shift to the opposing party may depend on the type of proof utilized by the moving party. . . . `[I]f the proof in support of the motion is largely documentary and has a high degree of credibility the opponent must produce convincing proof attacking the documents in order to sustain his burden * * * . . ..'" If the moving party makes out a prima facie case that would entitle him to a directed verdict at trial, summary judgment will be granted unless the opposing party presents some competent evidence that would be admissible *269 at trial and that shows that there is a genuine issue as to a material fact. 10 Wright and Miller, Federal Practice and Procedure: Civil § 2727, pp. 536, 537 (1973). In addition, as is true of other material introduced on a summary judgment motion, uncertified or otherwise inadmissible documents may be considered by the court if not challenged by means of a timely objection. 10 Wright and Miller, Federal Practice and Procedure: Civil § 2722 (1973).

Applying these principles to the present factual situation, we conclude that plaintiff presented sufficient competent evidence to support a summary judgment (in the form of a deposition and interrogatory of defendant, documentary exhibits and an affidavit) and that defendant failed to offer competent evidence to contradict plaintiff's evidence and raise a genuine issue of fact. An examination of the applicable law governing the CD and a close analysis of the three questions of fact which defendant contends it raised by presenting competent contradictory evidence to overcome plaintiff's summary judgment motion, supports this conclusion.

The crux of this case evolves around the CD which ". . . certifies that Allstate Life Ins. Co. or Commissioner of Ins. of Alabama as their interest may appear. . ." has deposited with defendant's Charlotte office $100,000. By the terms on the certificate, payment could be obtained "[u]pon surrender of [the] certificate properly endorsed 12 months after date, with interest of 4 ¼ percent per annum for the time specified only." However, the ". . . certificate [was] automatically renewed for a like term and interest rate if not presented for payment within 10 days after maturity."

By its terms the CD falls within the G.S. 25-9-105(1)(g) definition of instrument which states "`Instrument' means a negotiable instrument (defined in § 25-3-104), or a security (defined in § 25-8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment." Since this certificate is an instrument within the scope of the U.C.C., it is governed by the principles stated in G.S. 25-3-805 applying Article 3 to instruments which are non-negotiable only because they are not payable to order or bearer. Savings and Loan Association v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972), and the rules stated under G.S. 25-9-304 regarding perfection of security interests in instruments.

Defendant first asserts that he has raised an issue of fact with respect to the validity of the assignment of the CD. We find no merit in this assertion because defendant failed to offer some competent evidence that could be admitted at trial which would raise a question of fact with respect to plaintiff's evidence that the assignment was valid or show a good reason in accordance with Rule 56(f) why it was unable to present facts justifying its opposition to the plaintiff's assertion. G.S. 1A-1, Rule 56, 10 Wright and Miller, Federal Practice and Procedure: Civil § 2727, p. 532 (1973).

Evidence presented by plaintiff at the hearing included its unverified complaint alleging that on 11 October 1975 All States assigned the CD to plaintiff and that it was the lawful owner and holder of the CD; a copy of the CD attached to the complaint indicating on its face a valid assignment; and plaintiff's interrogatory and deposition of defendant, through J. Larry Harrill, in which defendant failed to offer any fact which would place the validity of the assignment in issue. Defendant's evidence which allegedly raised a question of fact with respect to the validity of the assignment included its general denial of the assignment, based on information and belief, and the following statement in the plaintiff's deposition of defendant's J. Larry Harrill:

The Bank further contends that Old Southern Life Insurance Company (Old Southern) is not the lawful owner and/or holder of the certificate of deposit. We have no way to determine that Old Southern is or is not the lawful owner. *270 Although there is a purported assignment on the back of the certificate of deposit, which I have seen, we have no reason to believe that this is a valid and lawful assignment. Such assignments are generally made in front of us, i. e., the parties sign in the presence of a bank officer. This was not done in my presence. Clearly the certificate of deposit was not issued to Old Southern Life Insurance Company. . . .

Defendant also submitted affidavits in opposition to the summary judgment motion, but the only reference to the assignment of the CD was a statement to the effect that on or about October 1975, defendant received notice that All States had assigned the CD to plaintiff.

Rule 56(e) states that "[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations of 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. If he does not so respond, summary judgment, if appropriate, shall be entered against him." (Emphasis supplied.) U.C.C. provision G.S. 25-3-307 provides that unless a signature is specifically denied in the pleadings, it is deemed admitted; and that when signatures are admitted, production of the instrument entitles a holder to recover on it unless the defendant can establish a defense. 2 Anderson UCC § 3-307-3-307:6 (2d ed. 1971). In the present case, defendant failed to set forth specific facts which would place the validity of the assignment in issue and failed to specifically deny the validity of the signature made in connection with the assignment. Consequently, pursuant to the Rules of Civil Procedure and the U.C.C. provisions, the assignment is deemed valid, the holder of the CD is entitled to recover unless defendant has raised a valid defense which would prevent recovery, and summary judgment is not precluded since no issue of fact with respect to the validity of the assignment was presented by defendant.

Defendant next contends that its evidence raised an issue of fact as to whether All States was operating as the alter ego of III. Defendant argues that it was entitled to setoff All States' $100,000 CD against III's $370,000 debt since the two corporations were in effect one entity, and that even if the two corporations were not acting as one, plaintiff still took the CD subject to defendant's right of setoff and other defenses. We find no merit in these contentions.

First, with respect to the alter ego argument, the general rule as stated in Insurance Co. v. Bank, 11 N.C.App. 444, 450, 181 S.E.2d 799, 803 (1971), provides:

The "alter ego" or "instrumentality" doctrine states that: "[W]hen a corporation is so dominated by another corporation, that the subservient corporation becomes a mere instrument, and is really indistinct from the controlling corporation, then the corporate veil of the dominated corporation will be disregarded, if to retain it results in injustice." National Bond Finance Co. v. General Motors Corp., 238 F. Supp. 248 (W.D.Mo.1964), aff'd, 341 F.2d 1022 (8th Cir. 1965). In accord: B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570. * * * * * * Stock ownership alone, however, is not a determining factor. There must be "[c]ontrol, not mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own . . .." Lowendahl v. Baltimore & O.R. Co., 247 App.Div. 144, 287 N.Y.S. 62, 76, aff'd, 272 N.Y. 360, 6 N.E.2d 56; Acceptance Corp. v. Spencer, supra.

In addition, ". . . [t]he fact that one corporation and its officers own substantially all of the stock of another corporation does not justify a disregard of the separate corporate entities unless there are additional circumstances showing fraud, actual *271 or constructive, or agency." 3 Strong's N.C. Index 3d, Corporations § 1.1, p. 474.

In the present case, plaintiff argues and shows by its evidence that All States' business was transferred to it pursuant to a re-insurance agreement and that the $100,000 CD which was in the possession of the Commissioner of Alabama was assigned to it by All States on 11 October 1975. Plaintiff makes no reference to any involvement by III. Under the alter ego test stated above, defendant's evidence fails to allege sufficient facts to raise the alter ego question in two respects.

First, defendant failed to show that All States was acting as the alter ego of III at the time the $370,000 loan was made to III or at the time the CD was issued to All States or the Commissioner of Insurance of Alabama. Evidence for both plaintiff and defendant indicates that at the time of the $370,000 loan All States was not affiliated with or exercising control over III and that the CD was issued to All States or the Commissioner of Insurance of Alabama pursuant to a statutory requirement placed on All States by the State of Alabama. There is no evidence that these two transactions were financial moves in which All States was operating as the alter ego of III.

Second, defendant failed to allege sufficient facts even to raise an inference of illegality or fraud on the part of All States or III in obtaining the $370,000 loan or the CD. Evidence for plaintiff and defendant shows that defendant was aware at all times that the purpose of the $370,000 loan was to acquire control of All States; that the stated collateral for the loan were those items listed on the promissory note signed by III, and that the purpose of the CD was to provide the statutory deposit required by the State of Alabama for the protection of All States' policyholders. In addition, the evidence indicates that without the posting of the CD as required by the State of Alabama, the stated security on the promissory notes of 69,229.17 shares of All States stock would have been worthless since All States would not have been allowed to conduct business in Alabama.

In connection with the alter ego argument, defendant relied heavily on the case of United States National Bank of Galveston, Texas v. Madison National Bank, 355 F. Supp. 165 (D.D.C.1973), aff'd 160 U.S. App.D.C. 149, 489 F.2d 1273 (1974). We have carefully considered that case but find it easily distinguishable from the instant case.

In order to invoke the right of setoff, a debtor creditor relationship must exist between the parties. In Coburn v. Carstarphen, 194 N.C. 368, 370, 139 S.E. 596, 597 (1927), the court stated:

As a general rule, a bank may apply the amount due by the bank to its depositor as a payment on a debt of the depositor to the bank, at any time after the debt becomes due; this rule, however, applies only when the amount due as a deposit belongs to the depositor. It does not apply where the bank has knowledge that the money deposited belongs, not to the depositor, but to another, and was deposited in trust for the owner. 7 C.J., 653 and 658. The right of set-off arises and can be enforced only where there are mutual debts between the parties. The party invoking the right cannot maintain it, unless he could also maintain an action against the other party to recover the amount which he seeks to have allowed as a set-off or counterclaim. . . .

Since the evidence presented by defendant in the instant case was insufficient to raise the alter ego question, no mutuality of debts can be established between All States and defendant and the setoff against All States on III's debt was improper.

Defendant's next argument that mutuality of debts is not required in the present case because of the fact that III and All States are insolvent is equally without merit. In the cases in which that rule has been applied, the facts indicate that the deposit against which the setoff is applied is usually made in the name of the depositor for a third person who also maintains an independent cause of action against the depositor, Coburn v. Carstarphen, supra, or that some other close relationship exists *272 between the depositor of the setoff funds and the indebted party. An example of the latter situation is where a bank is allowed to apply a deposit to the credit of an insolvent corporation against the debt due on a personal note given by the directors of the insolvent corporation to cover the insolvent corporation's prior note which was also kept as collateral security. Trust Company v. Spencer, 193 N.C. 745, 138 S.E. 124 (1927). Since All States and III were not involved in an exceptional situation similar to those recognized under N.C. law and cited by defendant in its brief, we find no merit in this contention.

Finally, we find no merit in defendant's contention that its evidence raises a question of fact as to whether the deposit by All States was security for the loan made to III.

The refinancing note dated 19 January 1973 and the original note dated 19 January 1972 list as security 69,229.17 shares All States stock, assignment of a lease, assignment of certain promissory notes, and an assignment of a mortgage on a motel but make no mention of the CD issued to All States. Plaintiff's evidence showed that the CD was to fulfill an Alabama statutory posting requirement. Defendant argues that this evidence is controverted by Gary Cooey's affidavit which stated that at the time of the loan to III, $100,000 represented by the CD issued to All States or the Commissioner of Insurance of Alabama was placed on deposit with defendant as a compensating balance, that defendant "looked to" the CD as security for the loan, and said amount was to remain on deposit so long as III owed money on the loan.

Rule 56(e) requires that affidavits set forth facts which would be admissible in evidence. Under the parol evidence rule, statements which contradict, add to, take from or in any way vary the express terms of a written instrument are not admissible in evidence. 2 Stansbury's N.C. Evidence §§ 251, 253, 256 (Brandis Rev. 1973). As a result, the assertion in defendant's (Cooey's) affidavit that the All States' CD was security for III's loan is incompetent as it adds to or varies the terms of the promissory note and the CD. Since plaintiff presented evidence showing that the CD was to fulfill Alabama statutory requirements, not as security on III's loan, and defendant failed to offer competent rebuttal evidence as required by Rule 56(e), no genuine issue of fact was raised as to whether Allstate's CD deposit was security for the III loan. Even if defendant could establish a security interest in the CD pursuant to the promissory note given by III, it failed to present any facts showing that it properly perfected its security interest in the CD by taking possession of it as required by U.C.C. 25-9-304.

For the reasons stated, we conclude that summary judgment for plaintiff was properly granted as no genuine issue of fact was raised by the pleadings or any additional evidence.

Affirmed.

HEDRICK and WEBB, JJ., concur.