Summary
In Honacher, the defendants obtained a loan from Carolina Farm Credit bank ("the bank"), secured by a deed of trust on real property. Before the transaction was finalized, the defendants moved to a different state.
Summary of this case from SunTrust Bank v. Abdalqader (In re Abdalqader)Opinion
No. COA07-251.
Filed February 19, 2008.
Rockingham County No. 03 CVS 1334.
Appeal by defendants from judgment entered 22 September 2006 by Judge Richard L. Doughton in Rockingham County Superior Court. Heard in the Court of Appeals 19 September 2007.
David K. Everson and Patricia M. Everson, pro se. Michael D. Phillips and Matthew F. C. Arundale, for intervenor-plaintiff.
On 22 September 2006, the trial court entered judgment against David K. Everson and Patricia M. Everson (defendants), holding that the promissory notes and deed of trust held by Carolina Farm Credit, ACA (plaintiff) were valid, awarding plaintiff a total of $166,535.53 in damages and $24,980.33 in attorneys' fees, as well as costs, and dismissing with prejudice defendants' counterclaim against plaintiff. Defendants now appeal. For the reasons outlined below, we affirm the judgment of the trial court.
Defendants obtained a loan of $120,000.00 from plaintiff in August 2003. The loan was secured by 58 acres of real property located in Rockingham County. Plaintiff's senior loan officer, Timothy R. Merritt, who had dealt with defendants in the past, processed the loan. Before the loan was finalized, defendants moved to Texas, where Merritt mailed the promissory note and deed of trust to them. Defendants signed the documents in Texas and mailed them back to Merritt in North Carolina. Both defendants confirmed to Merritt over the telephone that they had signed the documents. Merritt notarized the documents, despite the fact that he had not actually observed defendants signing them. Merritt testified that he recognized both defendants' signatures, having seen them "[o]n documents, applications, financial statements, income statements, [and] notes." Merritt further testified that he had, on these earlier occasions, been present and directly observed while defendants signed.
Defendants subsequently took out a second loan for $5,600.00 in July 2004. Plaintiff issued this loan to defendants "for the purpose of paying [defendants'] payments for the remaining [sic] of the year of 2004." The second loan was a future advance and was also secured by the deed of trust.
The following term was included in the deed of trust:
20. As a condition hereof and as part of the, consideration for the Present Obligations and any, future advances secured hereby, if conveyance, transfer, or other disposition should be made, voluntarily or involuntarily, of the property herein, described, or any part thereof, without the written, consent of the Lender, then and in that event, and at, the option of the Lender and without notice to the, Borrower or Undersigned, all sums of money secured, hereby shall immediately and concurrently with such, conveyance become due and payable and in default, whether the same are so due and payable and in default, by the specific terms hereof or not.
On 18 July 2003, Charles S. Honacher and Catherine M. Honacher (the buyers) filed suit against defendants, alleging that defendants breached a contract to sell the buyers the property at issue. After a jury trial, the court ordered defendants to sell the property to the buyers.
At that time, defendants claimed that the promissory notes and the deed of trust were invalid, and refused to forward the proceeds of the sale to plaintiff. Plaintiff intervened in the action on 5 November 2004. On 22 September 2006, the trial court held a bench trial on the validity of the promissory notes and deed of trust. After hearing plaintiff's evidence (defendants failed to appear at trial and so presented no evidence to the trial court), the trial court held that the promissory notes and deed of trust were valid and enforceable. Defendants now appeal.
Defendants first argue that the trial court lacked either subject matter or in personam jurisdiction over them. We disagree. "[O]riginal general jurisdiction of all justiciable matters of a civil nature cognizable in the General Court of Justice is vested in the aggregate in the superior court division and the district court division as the trial divisions of the General Court of Justice." N.C. Gen. Stat. § 7A-240 (2007). Moreover, the trial court also properly exercised in personam jurisdiction over defendants:
A court of this State having jurisdiction of the, subject matter has jurisdiction over a person served, in an action pursuant to Rule 4(j), Rule 4(j1), or, Rule 4(j3) of the Rules of Civil Procedure under any, of the following circumstances:
* * *
(6) Local Property — In any action which arises, out of:
a. A promise, made anywhere to the plaintiff or to, some third party for the plaintiff's benefit, by the, defendant to create in either party an interest in, or, protect, acquire, dispose of, use, rent, own, control, or possess by either party real property situated in, this State. . . .
N.C. Gen. Stat. § 1-75.4 (2007).
We note plaintiff's correct contention that defendants, by failing to argue their assignment of error regarding in personam jurisdiction in their brief, abandoned that assignment of error. Nevertheless, we include this analysis for the sake of clarity.
Defendants' arguments regarding choice of laws are misplaced. Defendants argue in their reply brief that "`choice of law' in law involves conflict of laws pertaining to different legal `jurisdictions' in matters concerning family law, torts, and contracts." Defendants appear to misunderstand the difference among the various definitions of "jurisdiction." Although it is true that jurisdiction can be defined in the manner in which defendants use it ("A geographic area within which political or judicial authority may be exercised. . . ." Black's Law Dictionary 867 (8th ed. 2004)), in this case jurisdiction is understood to be "[a] court's power to decide a case or issue a decree. . . ." Id.
Moreover, plaintiff is correct that defendants did not preserve any choice of law issue for appeal. Defendants urge this Court that "[i]rregardless [sic] whether the Appellants attended the trial, disputed the `choice of law' within their filed documents with the trial court, or failed to argue same, the law is the law and must be applied and upheld." Although we agree that the law is the law, in this state, the rule is that "[i]n order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C.R. App. P. 10(b)(1) (2007). The issue was not preserved, and we will not address it further.
Defendants next assign error to the trial court's finding of fact that they signed the deed of trust. The trial court found, based on evidence presented by plaintiff, that defendants "executed and delivered to [plaintiff] a deed of trust . . . dated August 22, 2003." Defendants essentially seek to attack the credibility of plaintiff's witness, Merritt. We note plaintiff's argument that defendants failed to assign error to any specific findings of fact. This Court has held that "[f]indings of fact to which no error is assigned are presumed to be supported by competent evidence and are binding on appeal." Pascoe v. Pascoe, ___ N.C. App. ___, ___, 645 S.E.2d 156, 157 (2007) (quotations and citations omitted). Moreover, "[i]t is well-settled that in a bench trial, the trial judge has the duty to pass upon the credibility of the witnesses who testify. He decides what weight shall be given to the testimony and the reasonable inferences to be drawn there from." Wiseman Mortuary v. Burrell, ___ N.C. App. ___, ___, 649 S.E.2d 439, 444 (2007) (quotations and citation omitted). In this case, the trial judge was presented with testimony from Merritt, who stated that defendants confirmed to him via the telephone that they had signed the paperwork and that he recognized their signatures from his past dealings with them. Contrary to defendants' assertion, it is not necessary that a witness be an expert to identify a signature with which he is familiar. Our Rules of Evidence state that a lay witness's "testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue." N.C. Gen. Stat. § 8C-1, Rule 701 (2007). In this case, Merritt's testimony was "rationally based on [his] perception," and his testimony was undoubtedly helpful in "the determination of a fact in issue," namely, whether the signatures were defendants'. The trial court properly assessed this evidence and we will not question its findings on appeal.
Defendants' next argument, in which they allege fraud on the trial judge's part, is not only wholly without merit, but offensive, as well. As stated above, the trial judge had the responsibility to determine the witness's credibility. Merritt admitted his failure to actually observe defendants signing the paperwork, in contrast to his statement made when he notarized the documents. The trial judge was entirely within his discretion in choosing to believe Merritt's testimony, notwithstanding that admission.
Moreover, defendants' arguments concerning the validity of the deed of trust are misplaced. "In North Carolina the word `deed' ordinarily denotes an instrument in writing, signed, sealed, and delivered by the grantor whereby an interest in realty is transferred from the grantor to the grantee." Williams v. Board of Education, 284 N.C. 588, 594, 201 S.E.2d 889, 893 (1974) (citations omitted). In this case, all of the requirements for a valid deed were present: there was a written instrument, signed by the grantors; the document contained the names of the grantors, grantee, and trustee; the document described the land to be transferred; the document effectively transferred ownership of that property; and the document was signed, sealed, and delivered. We note our Supreme Court's long established rule that "as between the parties a mortgage or deed is valid without registration." Sales Co. v. Weston, 245 N.C. 621, 626, 97 S.E.2d 267, 271 (1957) (quotations and citations omitted). We reject defendants' argument that the faulty notarization rendered the deed of trust ineffective.
Defendants also claim that the doctrine of stare decisis mandates that this Court hold in their favor. We disagree. That doctrine is in no way at issue in this case. This appears to be yet another attempt on defendants' part to pursue their choice of law argument. However, defendants' claim that the matter should be governed by Texas law (where they allege that they did not sign the paperwork) is not persuasive.
Defendants next contend that they were entitled to a jury trial. We disagree. Our Rules of Civil Procedure state:
Any party may demand a trial by jury of any issue, triable of right by a jury by serving upon the, other parties a demand there for in writing at, any time after commencement of the action and not, later than 10 days after the service of the last, pleading directed to such issue. Such demand may, be made in the pleading of the party or endorsed, on the pleading.
N.C. Gen. Stat. § 1A-1, Rule 38(b) (2007). Defendants did not request a jury trial until 21 August 2006. Defendants' last filing prior to that time was made on 21 October 2004; plaintiff had last filed a document with the court on 15 November 2004. Defendants were clearly not within the ten day time limit. "[T]he denial of a belated demand for a jury trial is within the discretion of the trial court." Whitfield v. Todd, 116 N.C. App. 335, 338, 447 S.E.2d 796, 798 (1994). The trial court did not abuse its discretion in refusing to grant defendants' request a mere four days prior to a scheduled trial.
We note that the scheduled trial was postponed until 22 September 2006 because defendants requested a last minute continuance. This fact, however, has no bearing on the trial court's exercise of its discretion with regard to a jury trial.
Finally, defendants argue that the trial court should, have granted their motion for a continuance., Continuances are not favored and the party seeking, [one] has the burden of showing sufficient grounds for, it. . . . The question of whether or not to grant a, continuance is a matter solely within the discretion, of the trial court; absent a manifest abuse of, discretion, this Court will not disturb the decision, made below.
Hammel v. USF Dugan, Inc., 178 N.C. App. 344, 349, 631 S.E.2d 174, 179 (2006) (quotations and citations omitted) (alterations in original). We discern no abuse of discretion in this case; indeed, the trial court was exceedingly conscientious in its decision. There are pages of the transcript devoted to the court's reasoning and the notice given to defendants. Defendants' argument is wholly without merit.
Having conducted a thorough review of the record and briefs, we find no error below. Accordingly, we affirm the trial court's judgment.
Affirmed.
Judges McGEE and TYSON concur.
Report per Rule 30(e).