Symons Corp. v. Quality Concrete Const., Inc.

422 S.E.2d 365 (1992)

108 N.C. App. 17

SYMONS CORPORATION, Plaintiff-Appellee, v. QUALITY CONCRETE CONSTRUCTION, INC., Mark S. Bissell, Richard Burke, and Frank W. Rogers, Defendants-Appellants.

No. 911SC976.

Court of Appeals of North Carolina.

November 3, 1992.

*367 Charles D. Coppage, Kill Devil Hills, for plaintiff, appellee. Brief signed by Herbert L. Thomas, Kill Devil Hills, who was later allowed to withdraw as counsel of record.

Aldridge, Seawell & Khoury by Joe G. Adams, Manteo, for defendants, appellants.

HEDRICK, Chief Judge.

On appeal, defendants Bissell and Rogers first contend that "[t]he trial court committed reversible error in granting summary judgment in favor of plaintiff ... because plaintiff failed to give timely notice to appellants of said motion pursuant to ... Rules 6(e) and 56(c)." We disagree.

As defendants correctly note, Rule 56(c) requires that "[t]he motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing." N.C.R.Civ.P. 56(c). Rule 6(e) allows a party an additional three days "to do some act or take some proceedings" when notice is served by mail. N.C.R.Civ.P. 6(e).

In the present case, plaintiff's motion for summary judgment and notice of hearing were filed and served on defendants by mail on 4 April 1991. The hearing on plaintiff's motion was held on 15 April 1991. In its brief, plaintiff concedes that "the Notice of the Summary Judgment Hearing was served by mail only nine days prior to the hearing instead of thirteen days as required." Plaintiff argues, however, and we agree, that defendants have failed to demonstrate any prejudice caused them by the untimely notice. At the summary judgment hearing held on 15 April 1991, counsel for defendants stated the following:

MR. ADAMS: Before we get into issues of this case, your Honor, I have a few things that I would like the court to deal with. (1) is whether or not the time here before the court the summary judgment motion was served by mail on the 4th. It is my understanding of the law that you have ten days plus three when it is mailed which would put us here on the 17th. I would be frank with you, your Honor, I thought we were going to trial. We had a pretrial order and everything else, so I am really prepared to be here and so I am not going to really push that objection. (Emphasis added).

From this statement, it was apparent to the trial judge, as it is to us, that defendants were not unduly prejudiced by the untimely notice. This contention is frivolous.

As their second assignment of error brought forward and argued on appeal, defendants contend that "[t]he trial court committed reversible error by entering summary judgment [in favor of plaintiff] because the entry of said order was in contravention of the previous order of the Honorable Thomas S. Watts ... which stated that `this action shall be tried on the issue of damages only.'" Defendants maintain that "[b]y granting Plaintiff's Motion for Summary Judgment on the issue of damages, Judge Grant overruled Judge Watts' order that the action be tried on the issue of damages." We disagree.

The record in this case indicates that Judge Watts entered his order granting plaintiff summary judgment on the issue of liability pursuant to a "Stipulation" entered into by the parties and a motion for "partial" summary judgment filed by plaintiff. Both the parties'"Stipulation" and plaintiff's motion specifically limited the court's consideration to the issue of liability and preserved the issue of damages for later determination. Therefore, the issue of damages was never before Judge Watts, and the language of his order stating that "this action shall be tried on the issue of damages only" was mere surplusage to insure that the damages issue was reserved for further determination following the entry of summary judgment on the issue of liability. Thus, the entry of Judge Grant's order awarding damages and attorney's fees to plaintiff was not in contravention to or in any way a modification of the previous order entered by Judge Watts. This contention is without merit.

*368 Defendants final contention on appeal is that the trial court erred in granting plaintiff's motion for summary judgment because there were genuine issues of fact regarding the amount of money owed plaintiff by defendants. We disagree.

We have reviewed the record in its entirety, including the affidavits submitted by both plaintiff and defendants in support of and in opposition to plaintiff's motion for summary judgment and find that the evidence clearly supports plaintiff's allegation in its complaint as to the amount of defendants' indebtedness.

We note that although we have considered the affidavit of defendant Mark S. Bissell filed in opposition to plaintiff's motion for summary judgment, portions of this affidavit, on its face, do not meet the admissibility requirements set forth in Rule 56(e) since the statements contained therein were made "on information and belief" rather than from the affiant's personal knowledge. See N.C.R.Civ.P. 56(e); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

In this affidavit, defendant Bissell stated in part:

8. That on information and belief, approximately one-half of a tractor-trailer load of forms was left on site by Symons Corporation when they retook possession of the other forms. 9. That on information and belief, the forms which Symons Corporation left behind on the job site are still on the job site, and that Symons Corporation has the ability to locate these forms and retake their possession. 10. That on information and belief, Symons Corporation has not attempted to retake the possession of these forms. 11. That Symons Corporation has instead "sold" these forms to Quality Concrete Construction, Inc., for the amount of Sixteen Thousand Eight Hundred Fifty-Five and 77/100 Dollars ($16,855.77). 19. That my Guaranty and the Guaranty of Frank Rogers was effectively revoked as of January 5, 1989. 20. That neither my Guaranty or the Guaranty of Frank Rogers was in effect on January 13, 1989, or January 31, 1989. 21. That on January 13, 1989, and January 31, 1989, the total sum of Eighteen Thousand Two Hundred Eighteen and 66/100 Dollars (18,218.66) was billed to Quality Concrete Construction, Inc., by Symons Corporation. 22. That because Frank Rogers and I revoked our Guaranty prior to the dates on which the Eighteen Thousand Two Hundred Eighteen and 66/100 Dollars ($18,218.66) were charged to Quality Concrete Construction, Inc., we do not Guaranty those debts and are not responsible for them. 23. That on information and belief, Quality Concrete Construction, Inc., made the following payments to Symons Corporation which have not been credited to the account of Quality Concrete Construction, Inc.:

Check #      Date      Amount
0123         1-5-88    $ 5,000.00
0199         2-19-88   $ 1,333.55
0471         6-17-88   $ 7,000.00
0597         7-29-88   $ 4,000.00
0705         9-6-88    $ 5,000.00
             TOTAL:    $22,333.55

Plaintiff submitted the affidavit of Mr. R.A. Kosmicki, the Regional Credit Manager of Symons Corporation, and defendants' "Customer History Report," outlining the transactions between plaintiff and defendants. In his affidavit, Mr. Kosmicki stated that:

13. The total charges for rental and/or purchase of Symons concrete equipment and related accessories was $84,128.69; The defendant corporation made the following payments on account:

Check # 123             $ 5,000.00
Check # 199               1,333.55
Check # 471               7,000.00
Check # 597               4,000.00
Check # 705               5,000.00
TOTAL PAYMENTS          $22,333.55

14. The gross rental and purchase amount for all jobs is $84,128.69 less the total payments made by defendant corporation *369 on account of $22,333.55 leaving a balance owing of $61,795.14. 15. Included in the total balance of $61,795.14 owed, are charges for equipment not returned by defendants to plaintiff corporation, in the amount of $16,855.77. 16. The affiant acknowledges receiving a notice dated November 28, 1988, of termination of guaranty agreement executed by Richard Burke, Mark S. Bissell and Frank W. Rogers, the date of said guaranty agreement being March 9, 1988; the only charges made to the defendant corporation's account after the receipt of said notice were for equipment rented to the defendant corporation which was already in the defendant corporation's possession at the time of receipt of said notice of termination and by the express provisions of said guaranty agreement, the guarantors are not released from items already rented to the purchaser (defendant corporation) at the time of the receipt of the notice of termination.

These affidavits clearly establish that the amount of defendants' indebtedness to plaintiff is $61,795.14, the amount demanded in plaintiff's complaint. The evidence presented did not raise any issue of fact, and the trial judge properly entered summary judgment for plaintiff and awarded plaintiff the sum of $61,795.14. The order of the trial court is affirmed.

Affirmed.

ARNOLD and WELLS, JJ., concur.