Opinion
No. COA09-949
Filed 15 June 2010 This case not for publication
Appeal by Defendant from order entered 3 April 2009 by Judge Shirley H. Brown in District Court, Buncombe County. Heard in the Court of Appeals 23 February 2010.
Sessoms Rogers, P.A., by Pedro J. Zabala, II, for Plaintiff-Appellee.
Harold W. Rowell, Defendant-Appellant, pro se.
Buncombe County No. 08 CVD 4773.
Unifund CCR Partners (Plaintiff) filed a complaint against Harold W. Rowell (Defendant) on 5 September 2008, seeking recovery of alleged indebtedness on a credit account and interest thereon. In its complaint, Plaintiff alleged that Plaintiff had become the owner of a credit account originally entered into by Defendant and Bank One, N.A. (Bank One). Further, Plaintiff alleged that Defendant was in default on the credit account and that Defendant was indebted to Plaintiff in the amount of $8,816.42. Plaintiff alleged that this sum had been outstanding since 31 July 2006.
Defendant filed an answer pro se on 13 November 2008. In his answer, Defendant admitted that he was a citizen and resident of Buncombe County and that he "has had a Credit Card." He denied all other allegations in the complaint. Defendant also asserted that Plaintiff's breach of contract claim was "barred by the statute of limitations of North Carolina General Statute 1-52(1)."
Plaintiff served interrogatories and a request for admissions on Defendant on 25 November 2008. Defendant filed a motion for extension of time to answer Plaintiff's interrogatories and request for admissions on 29 December 2008. Defendant sent a letter to Plaintiff's attorney on 6 January 2009, requesting that Plaintiff "grant[] me this extension of time to answer [its] request." Defendant filed responses to Plaintiff's interrogatories and request for admissions on 26 January 2009.
Plaintiff filed a motion for summary judgment on 30 January 2009. In its motion, Plaintiff asserted that Defendant had failed to file a motion for extension of time and had therefore filed his responses to Plaintiff's interrogatories and requests for admissions after the 30-day period set forth in N.C. Gen. Stat. § 1A-1, Rule 36(a). Plaintiff argued that, because Defendant had filed his responses late, those allegations set forth in Plaintiff's request for admissions "are deemed to be admitted[.]" Based on Defendant's admission of all allegations in Plaintiff's first request for admissions, Plaintiff argued that there was no genuine issue of material fact before the trial court and that Plaintiff was entitled to judgment as a matter of law.
Defendant filed a motion to continue on 20 February 2009. In his motion, Defendant requested a ninety-day continuance. The trial court entered an order on 27 February 2009 granting Defendant a continuance until 20 March 2009. The trial court's order was written on a pre-printed form containing the following handwritten language: "Cont. to 3-20-09 but not an Extension of Time."
The trial court entered an order on 3 April 2009 granting summary judgment in favor of Plaintiff. The court found that there was "no genuine issue as to any material fact, and that . . . Plaintiff is entitled to judgment as a matter of law." The court ordered that Plaintiff recover from Defendant the principal sum of $8,816.42, as well as interest of eight percent per annum from 31 July 2006. The trial court also awarded Plaintiff attorney's fees in the amount of $1,537.54 and costs. Defendant appeals.
Plaintiff's Motions to Dismiss Defendant's Appeal
Plaintiff filed a motion with this Court in the form of a document containing four separately enumerated "motions to dismiss[,]" as well as arguments on the merits of Defendant's appeal on 20 October 2009. This motion was decided by our Court on 4 November 2009 as follows: "The 'motions' are dismissed as not being properly brought before this Court." As its appellate brief, Plaintiff filed a photocopy of these "motions[,]" along with an index and table of cases and authorities. We will not address that portion of Plaintiff's brief which is simply a photocopy of motions already dismissed by this Court.
Defendant's Motion for Extension of Time
Defendant first argues that the trial court erred by denying his motion for an extension of time in which to answer Plaintiff's interrogatories and request for admissions. Defendant argues that Plaintiff "has never participated in the discovery process at all," and that Plaintiff's actions prejudiced Defendant. Defendant cites to N.C. Gen. Stat. § 1A-1, Rules 33 and 34, and asserts that "[t]he court may allow a shorter or longer time." Defendant also contends that Plaintiff "never made a motion to compel [D]efendant to answer [Plaintiff's] request for admissions or interrogatories as required by the statute[.]"
We review a trial court's ruling on a motion for an extension of time for an abuse of discretion. In re Estate of Lowe, 156 N.C. App. 616, 618, 577 S.E.2d 315, 316 (2003). Defendant does not argue that the trial court abused its discretion in denying his motion for extension of time. We further note that Rules 33 and 34 each provide that the trial court "may allow a shorter or longer time" for a response. N.C. Gen. Stat. § 1A-1, Rules 33 and 34 (2009). However, these rules do not support Defendant's apparent contention that the trial court was under any obligation to grant Defendant's motion for extension of time. Defendant also fails to provide any authority for his contention that an extension of time must be granted because Plaintiff failed to file a motion to compel discovery. Because Defendant fails to argue that the trial court abused its discretion and cites to no authority, we overrule this argument.
Defendant's Motion for Leave to Amend and Respond
Defendant's second argument is that the trial court erred by denying his motion for leave to amend his answer and to respond to Plaintiff's request for admissions and interrogatories. Defendant argues that the trial court's ruling prejudiced him.
N.C. Gen. Stat. § 1A-1, Rule 15 (2009) provides, in pertinent part, that "a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Defendant's assignment of error contains the following language: "Did the [c]ourt err[] in the denial of [D]efendant's motion under North Carolina Rules of Civil Procedure 15 for leave to file answers and amendments in response to [P]laintiff's first request for admissions and interrogatories?" The only argument Defendant makes related to this assignment of error is that the trial court should have allowed Defendant to amend his answer because "leave shall be freely given when justice so requires."
We note that Rule 15 governs the amendment of pleadings or responsive pleadings and not discovery motions. See N.C.G.S. § 1A-1, Rule 15(a). Because Rule 15 does not relate to the discovery process, we overrule the portion of Defendant's argument concerning the trial court's denial of his motion for leave to "respond to Plaintiff's request for admissions and interrogatories." Defendant cites no authority to our Court regarding the trial court's ruling on his motion for leave to amend his answer. We therefore overrule this assignment of error.
Defendant's Motion for Continuance
Defendant next argues that the trial court erred by denying his motion for a ninety-day continuance. We note that the trial court granted Defendant's motion in part, continuing the trial from 27 February until 20 March 2009. The only authority Defendant cites in support of his argument is a section of Rules 33 and 34. Defendant stresses that, pursuant to those rules, "the court may allow a shorter or longer time" to respond to discovery. However, a ruling on a motion for continuance and a ruling on a motion for extension of time under Rules 33 and 34 are separate legal issues. Compare N.C. Gen. Stat. § 1A-1, Rule 40(b) (A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require.) and N.C. Gen. Stat. § 1A-1, Rule 33(a) ("The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories. . . . The court may allow a shorter or longer time."). Therefore, Defendant has not cited any authority to support his argument that the trial court should have granted his motion for a ninety-day continuance. We therefore overrule this argument.
Defendant's Objections
Defendant next argues that the trial court erred "in denying Defendant's objections against Plaintiff's motion for summary judgment." Defendant contends that, at the hearing on Plaintiff's motion for summary judgment, Defendant attempted to proffer a document containing a series of objections to Plaintiff's motion. In his brief, Defendant asserts that the trial court received a copy of his list of objections, "glanced at them" and stated that Plaintiff's motion was granted. We note that Defendant has not submitted a transcript of this hearing and we are unable to fully review the proceedings at the hearing. Further, Defendant cites no authority to our Court and makes no argument concerning the trial court's review of his objections, and fails to show specifically in what way the trial court committed error. We overrule this portion of Defendant's argument.
Defendant also asserts that the trial court made certain comments which amounted to "a miscarriage of justice at its best!" Because Defendant has failed to file a transcript of the hearing, we are unable to address these arguments. North Carolina Concrete Finishers, Inc. v. North Carolina Farm Bureau Mut. Ins. Co., Inc., ___ N.C. App. ___, ___, 688 S.E.2d 534, 536 (2010) ("'The Court of Appeals can judicially know only what appears of record. . . . Matters discussed in a brief but not found in the record will not be considered by this Court.'") (citations omitted).
Defendant has filed a motion to file additions and amendments to the record on appeal, which we hereby grant. Defendant's addenda include an affidavit in which he attests to the proceedings at the hearing. However, even considering Defendant's affidavit, we find the record insufficient for a full review of the trial court's conduct.
Further, the only authority to which Defendant cites for this portion of his argument is the Code of Judicial Conduct and case law concerning the effect of comments by a judge on the impartiality of a jury. We note that "[w]hether or not the judge's comments violated the Code of Judicial Conduct is the province of the Judicial Standards Commission." Carpenter v. Carpenter, 189 N.C. App. 755, 759, 659 S.E.2d 762, 765 (2008). We also note that there was no jury present at the hearing on Plaintiff's motion for summary judgment, and therefore no risk of the trial court's comments affecting the impartiality of a jury. This argument is without merit.
Plaintiff's Participation in Discovery
Defendant argues that the trial court erred by ruling on Plaintiff's motion for summary judgment because, at the time of the hearing, Plaintiff had not yet responded to Defendant's request for production of documents. Our Court addressed this issue in Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 571 S.E.2d 849 (2002). In Shroyer, two of several defendants moved for summary judgment against the plaintiff. Shroyer, 154 N.C. App. at 166-167, 571 S.E.2d at 851. The trial court granted the summary judgment motions of those two defendants and the plaintiff appealed, arguing that the trial court had erred by granting summary judgment when discovery was pending. Id. at 167, 571 S.E.2d at 851. Our Court held:
With respect to plaintiffs' first argument, it is ordinarily error when a court "hears and rules upon a motion for summary judgment while discovery is pending and the party seeking discovery has not been dilatory [or lazy] in doing so." The trial court's action in the present case did not constitute error because there was no evidence that plaintiffs sought any discovery prior to defendants' motion for summary judgment. There was also no record of any objections by plaintiffs to the court proceeding with a hearing on defendants' motion. Finally, plaintiffs did not move for a continuance of the summary judgment hearing to allow additional time for pre-trial discovery to take place. Therefore, the court did not err in proceeding with the summary judgment hearing.
Shroyer, 154 N.C. App. at 169, 571 S.E.2d at 852 (citations omitted).
Our Court has held, however, that "this 'rule presupposes that any information gleaned [from the discovery] will be useful.'" Birmingham v. H H Home Consultants Designs, Inc., 189 N.C. App. 435, 441, 658 S.E.2d 513, 518 (2008) (citations omitted). In Birmingham, the trial court granted partial summary judgment to certain defendants regarding an unfair and deceptive trade practices claim. Id. at 438, 658 S.E.2d at 516. The trial court found that, as to those defendants, "[t]here is no allegation they were acting as an agency, enterprise, business or a commercial or industrial establishment[,]" and thereafter granted summary judgment in their favor. Id. at 441, 658 S.E.2d at 517-18. The plaintiff appealed, arguing that summary judgment was improper because the parties had not completed discovery. Id., 658 S.E.2d at 518. Our Court affirmed, stating:
In the instant case, the hearing for the partial summary motion was held on 13 December 2006. However, third-party defendants had been added and were not required to file responsive pleadings until 22 January 2007. Thus, at the time of the partial summary judgment hearing, the pleading and discovery period had not ended. However, [the] plaintiff did not submit evidence to show any discovery gleaned from the third-party defendants would provide any information that the Barnes defendants were engaged in a commercial sale that was "in or affecting commerce."
Id. at 441-42, 658 S.E.2d at 518 (citation omitted).
In the present case, as in Shroyer, there is no evidence that Defendant sought any discovery prior to Plaintiff's motion for summary judgment. Further, Defendant did not object to the trial court's proceeding with the hearing on Plaintiff's motion for summary judgment; however, the record shows that Defendant presented a series of objections to the trial court during the hearing, one of which was related to the discovery process. Unlike Shroyer, Defendant did move for a ninety-day continuance of the hearing on Plaintiff's motion. The trial court granted this motion in part, continuing the hearing from 27 February until 20 March 2009, and then again until 3 April 2009.
We recognize that Defendant's objections and motion for continuance somewhat temper the notion that he had been dilatory in carrying out discovery. However, Defendant has presented no evidence that the documents sought by his request for production of documents would have in any way affected the facts as presented to the trial court at the hearing on Plaintiff's motion for summary judgment. In his objections to the trial court, Defendant asserted that "First USA, N.A. is negligen[t] in how they have handled this account and should be held accountable for their actions along with Bank One and Defendant's First Request for Productions of Documents will be evident of that." Defendant fails to explain how documents related to the alleged negligence of First USA, N.A or Bank One would affect the evidence before the trial court. We therefore hold that the trial court did not err in proceeding with Plaintiff's motion for summary judgment on these facts.
Statute of Limitations
Defendant argues that Plaintiff's claim is barred by the three year statute of limitations set forth in N.C. Gen. Stat. § 1-52(1) (2010). Defendant contends that Plaintiff was not entitled to judgment as a matter of law because Plaintiff failed to respond to Defendant's statute of limitations defense. Specifically, Defendant asserted that the last action he took on the account, and therefore the breach of the contract, occurred no later than February 2005. Thus, Plaintiff's complaint filed 5 September 2008 would have been outside of the applicable statute of limitations.
However, we must examine the evidence presented to the trial court. N.C. Gen. Stat. § 1A-1, Rule 36 provides in general that a "party may serve upon any other party a written request for the admission . . . of the truth of any matters" otherwise discoverable and related to the action. N.C. Gen. Stat. § 1A-1, Rule 36(a) (2009). Rule 36 further provides that "[t]he matter is admitted unless, within 30 days after service of the request, . . . the party to whom the request is directed serves . . . a written answer or objection[.]" Id. Rule 36(b) provides that "[a]ny matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." N.C.G.S. § 1A-1, Rule 36(b).
Defendant was served with a copy of Plaintiff's first request for admissions on 25 November 2008. Defendant filed a motion for extension of time to answer Plaintiff's interrogatories and request for admissions on 29 December 2008, but this motion was denied. Defendant did not file responses to Plaintiff's first request for admissions and interrogatories until 26 January 2009, well more than thirty days after 25 November 2008; thus, Defendant is deemed to have admitted the matters set forth in Plaintiff's request for admissions. The record contains no evidence that Defendant was allowed to withdraw or amend his responses pursuant to N.C.G.S. § 1A-1, Rule 36(b).
We consider the facts before the trial court as set forth in Plaintiff's request for admissions and deemed admitted by Defendant. Among those facts were the following:
3. . . . [P]laintiff sent a demand letter to . . . [D]efendant on or about June 20, 2008.
. . .
8. . . . [D]efendant entered into a written credit agreement . . . with Bank One, N.A., . . . [P]laintiff's predecessor in interest.
. . .
10. In reliance upon . . . [D]efendant's contractual commitments contained therein, Bank One, N.A. extended credit to . . . [D]efendant.
11. . . . [D]efendant is in default under the terms of that Credit Agreement, in that . . . [D]efendant has failed to make the payments required thereunder.
12. . . . [D]efendant's account with Bank One, N.A. was subsequently sold and assigned to . . . [P]laintiff[.]
. . .
17. Pursuant to the terms and provisions of the Credit Agreement, . . . [D]efendant is lawfully indebted to . . . [P]laintiff in the principal sum of $8,819.42.
18. . . . [D]efendant made a payment on this account on or about November 10, 2005.
. . .
21. . . . [D]efendant is further indebted to . . . [P]laintiff for interest on said sum from and after July 31, 2006, at the contract rate of 8% per annum.
. . .
22. The Credit Agreement between the parties contained a provision calling for the payment of attorney's fees in the event of default by . . . [D]efendant.
. . .
24. At the time of the filing of the complaint herein, the balance then outstanding and due from . . . [D]efendant to . . . [P]laintiff was at least $10,250.24.
As reviewed above, Defendant "made a payment on [the] account on or about November 10, 2005." This fact is also shown in the record in the form of account statements attached as exhibits to Plaintiff's motion for summary judgment. Thus, according to facts admitted by Defendant, Plaintiff had until approximately 10 November 2008 to file a complaint within the three year statute of limitations. The complaint in this action was filed 5 September 2008. Therefore, Plaintiff's cause of action was not barred by the statute of limitations.
Pursuant to his failure to respond to Plaintiff's request for admissions, Defendant was deemed to have admitted the existence of an account, the amount due on the account, and his obligation to pay according to the terms of the account. In light of Defendant's admissions, there was no genuine issue as to any material fact. Plaintiff was entitled to a judgment as a matter of law and we therefore hold that summary judgment was proper. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2009). We have reviewed all of Defendant's remaining arguments and issues and find them to be without merit.
Affirmed.
Judges GEER and ERVIN concur.
Report per Rule 30(e).