{
  "id": 8522125,
  "name": "SYMONS CORPORATION, Plaintiff-Appellee v. QUALITY CONCRETE CONSTRUCTION, INC., MARK S. BISSELL, RICHARD BURKE, and FRANK W. ROGERS, Defendants-Appellants",
  "name_abbreviation": "Symons Corp. v. Quality Concrete Construction, Inc.",
  "decision_date": "1992-11-03",
  "docket_number": "No. 911SC976",
  "first_page": "17",
  "last_page": "24",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "category": "reporters:state",
      "reporter": "N.C.",
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        8572515
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  "last_updated": "2023-07-14T21:33:37.144077+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges ARNOLD and Wells concur."
    ],
    "parties": [
      "SYMONS CORPORATION, Plaintiff-Appellee v. QUALITY CONCRETE CONSTRUCTION, INC., MARK S. BISSELL, RICHARD BURKE, and FRANK W. ROGERS, Defendants-Appellants"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Chief Judge.\nOn appeal, defendants Bissell and Rogers first contend that \u201c[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).\u201d We disagree.\nAs defendants correctly note, Rule 56(c) requires that \u201c[t]he motion [for summary judgment] shall be served at least 10 days before the time fixed for the hearing.\u201d N.C.R. Civ. P. 56(c). Rule 6(e) allows a party an additional three days \u201cto do some act or take some proceedings\u201d when notice is served by mail. N.C.R. Civ. P. 6(e).\nIn the present case, plaintiff\u2019s motion for summary judgment and notice of hearing were filed and served on defendants by mail on 4 April 1991. The hearing on plaintiff\u2019s motion was held on 15 April 1991. In its brief, plaintiff concedes that \u201cthe Notice of the Summary Judgment Hearing was served by mail only nine days prior to the hearing instead of thirteen days as required.\u201d 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:\nMr. 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.\n(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).\nFrom 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.\nAs their second assignment of error brought forward and argued on appeal, defendants contend that \u201c[t]he trial court committed \u25a0 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 \u2018this action shall be tried on the issue of damages only.\u2019 \u201d Defendants maintain that \u201c[b]y granting Plaintiff\u2019s Motion for Summary Judgment on the issue of damages, Judge Grant overruled Judge Watts\u2019 order that the action be tried on the issue of damages.\u201d We disagree.\nThe record in this case indicates that Judge Watts entered his order granting plaintiff summary judgment on the issue of liability pursuant to a \u201cStipulation\u201d entered into by the parties and a motion for \u201cpartial\u201d summary judgment filed by plaintiff. Both the parties\u2019 \u201cStipulation\u201d and plaintiff\u2019s motion specifically limited the court\u2019s 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 \u201cthis action shall be tried on the issue of damages only\u201d 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\u2019s order awarding damages and attorney\u2019s 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.\nDefendants\u2019 final contention on appeal is that the trial court erred in granting plaintiff\u2019s motion for summary judgment because there were genuine issues of fact regarding the amount of money owed plaintiff by defendants. We disagree.\nWe have reviewed the record in its entirety, including the affidavits submitted by both plaintiff and defendants in support of and in opposition to plaintiff\u2019s motion for summary judgment and find that the evidence clearly supports plaintiff\u2019s allegation in its complaint as to the amount of defendants\u2019 indebtedness.\nWe note that although we have considered the affidavit of defendant Mark S. Bissell filed in opposition to plaintiff\u2019s 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 \u201con information and belief\u201d rather than from the affiant\u2019s personal knowledge. See N.C.R. Civ. P. 56(e); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).\nIn this affidavit, defendant Bissell stated in part:\n8. 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.\n9. 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.\n10. That on information and belief, Symons Corporation has not attempted to retake the possession of these forms.\n11. That Symons Corporation has instead \u201csold\u201d these forms to Quality Concrete Construction, Inc., for the amount of Sixteen Thousand Eight Hundred Fifty-Five and 77/100 Dollars ($16,855.77).\n19. That my Guaranty and the Guaranty of Frank Rogers was effectively revoked as of January 5, 1989.\n20. That neither my Guaranty or the Guaranty of Frank Rogers was in effect on January 13, 1989, or January 31, 1989.\n21. 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.\n22. 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.\n23. 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.:\nCheck # Date Amount\n0123 1-5-88 $5,000.00\n0199 2-19-88 $1,333.55\n0471 6-17-88 $7,000.00\n0597 7-29-88 $4,000.00\n0705 9-6-88 $5,000.00\nTOTAL: $22,333.55\nPlaintiff submitted the affidavit of Mr. R. A. Kosmicki, the Regional Credit Manager of Symons Corporation, and defendants\u2019 \u201cCustomer History Report,\u201d outlining the transactions between plaintiff and defendants. In his affidavit, Mr. Kosmicki stated that:\n13. The total charges for rental and/or purchase of Symons concrete equipment and related accessories was $84,128.69;\nThe defendant corporation made the following payments on account:\nCheck #123 $5,000.00\nCheck #199 1,333.55\nCheck #471 7,000.00\nCheck #597 4,000.00\nCheck #705 5,000.00\nTOTAL PAYMENTS $22,333.55\n14. The gross rental and purchase amount for all jobs is $84,128.69 less the total payments made by defendant corporation on account of $22,333.55 leaving a balance owing of $61,795.14.\n15. 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. <\n16. 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\u2019s account after the receipt of said notice were for equipment rented to the defendant corporation which was already in the defendant corporation\u2019s 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.\nThese affidavits clearly establish that the amount of defendants\u2019 indebtedness to plaintiff is $61,795.14, the amount demanded in plaintiff\u2019s 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.\nAffirmed.\nJudges ARNOLD and Wells concur.",
        "type": "majority",
        "author": "HEDRICK, Chief Judge."
      }
    ],
    "attorneys": [
      "Charles D. Coppage for plaintiff, appellee. Brief signed by Herbert L. Thomas, who was later allowed to withdraw as counsel of record.",
      "Aldridge, Seawell & Khoury, by Joe G. Adams, for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "SYMONS CORPORATION, Plaintiff-Appellee v. QUALITY CONCRETE CONSTRUCTION, INC., MARK S. BISSELL, RICHARD BURKE, and FRANK W. ROGERS, Defendants-Appellants\nNo. 911SC976\n(Filed 3 November 1992)\n1. Rules of Civil Procedure \u00a7 56.1 (NCI3d) \u2014 summary judgment for plaintiff \u2014 failure to give timely notice \u2014 defendants not prejudiced\nThere was no merit to defendants\u2019 contention that the trial court erred in granting summary judgment for plaintiff because plaintiff failed to give timely notice of its summary judgment motion, since defense counsel stated at the summary judgment hearing that he was prepared for trial and thus defendants were not prejudiced by the untimely notice.\nAm Jur 2d, Summary Judgment \u00a7 14.\n2. Rules of Civil Procedure \u00a7 56 (NCI3d); Courts \u00a7 84 (NCI4th)-summary judgment on damages issue \u2014no contravention of prior order reserving damages issue for trial\nThe trial judge\u2019s entry of summary judgment for plaintiff on the issue of damages was not in contravention to or in any way a modification of a previous order by another superior court judge which granted plaintiff summary judgment on the issue of liability and preserved the issue of damages for later determination, since the prior summary judgment order was based on a stipulation and motion which specifically limited the court\u2019s consideration to the issue of liability; the issue of damages was never before the trial judge; and the language in the first judge\u2019s order that the action should be tried on the issue of damages only was mere surplusage.\nAm Jur 2d, Summary Judgment \u00a7\u00a7 41, 44.\n3. Guaranty \u00a7 21 (NCI4th)\u2014 amount of indebtedness \u2014 no issue of fact \u2014summary judgment proper\nIn an action to recover on a guaranty, the trial court did not err in granting plaintiffs motion for summary judgment where the evidence clearly supported plaintiff\u2019s allegation in its complaint as to the amount of defendants\u2019 indebtedness.\nAm Jur 2d, Guaranty \u00a7 123; Summary Judgment \u00a7 26.\nAPPEAL by defendants from Grant (Cy AJ, Judge. Judgment entered 23 April 1991 in Superior Court, Dare County. Heard in the Court of Appeals 14 October 1992.\nThis is a civil action wherein plaintiff seeks to recover a sum of money totalling $61,795.14 allegedly owed plaintiff by defendants pursuant to two lease and/or purchase agreements between plaintiff and defendant Quality Concrete Construction for the lease and/or purchase of certain concrete form equipment which transactions were induced by a \u201cGuaranty\u201d agreement executed by defendants Bissell, Burke and Rogers. The record indicates the following:\nOn 4 January 1988 and 21 March 1988, defendants Frank Rogers and Richard Burke entered into two lease and/or purchase agreements on behalf of Quality Concrete for the lease and/or purchase of certain equipment from plaintiff. On 9 March 1988, defendants Burke, Bissell and Rogers signed a \u201cGuaranty\u201d agreement promising to pay all sums then owed and which thereafter became owed by defendant Quality Concrete to plaintiff. The \u201cGuaranty\u201d agreement contained the following clause:\nThis guaranty shall be considered as a general and continuing guaranty and shall not be revoked by the death of the Guarantor, but shall remain in full force and effect until the receipt from the Guarantor ... or other legal representative of a 30 day prior written notice sent by registered mail . . . terminating the same, but no such notice of termination shall release the Guarantor from liability for any goods, merchandise or equipment sold and/or rented to Purchaser, or for any other indebtedness legally created by the Purchaser in favor of Symons prior to the effective termination date of such notice.\nDefendant Quality Concrete failed to pay plaintiff the amount due on its account, and on 25 May 1989, plaintiff instituted this action to recover the outstanding indebtedness and attorney\u2019s fees from Quality Concrete pursuant to the lease and/or purchase agreements and from Bissell, Burke and Rogers individually pursuant to the \u201cGuaranty\u201d agreement. On 7 August 1989, defendants Bissell and Rogers filed an answer to plaintiff\u2019s complaint alleging, among other things:\n11. That by letter dated November 28,1988, sent Certified Mail, Return Receipt Requested, the answering Defendants by and through their attorney, Joe G. Adams, gave written notice of termination of all guarantees made themselves to Symons Corporation on the principal account of Quality Concrete Construction, Inc.\n12. That said written notice was received by Symons Corporation on or about the 6th day of December, 1988.\n13. That the answering Defendants are not responsible for any sums which became due and owing to Symons Corporation by the Defendant, Quality Concrete Construction, Inc., on or after thirty (30) days from the mailing of said notice or its receipt.\nOn 26 September 1990, plaintiff and defendants Bissell and Rogers entered into and filed with the court the following \u201cStipulation:\u201d\n1. There is no genuine issue of fact as to the liability of the two named defendants to the plaintiff and that a partial summary judgment solely on the issue of liability may be entered against said defendants;\n3. The sole issue remaining to be determined is the amount of damages, if any, due the plaintiff by the defendants Mark S. Bissell and Frank W. Rogers.\nPursuant to the parties\u2019 \u201cStipulation,\u201d plaintiff filed a \u201cMotion For Partial Summary Judgment\u201d on 16 October 1990, pertaining to the issue of liability. On 13 November 1990, Judge Thomas S. Watts entered an order granting summary judgment in favor of plaintiff against defendants Bissell and Rogers on the issue of liability. Judge Watts\u2019 order further stated \u201cthat this action shall be tried on the issue of damages only.\u201d\nIn preparation for trial, a final pre-trial conference was held on 22 January 1991, and a final pre-trial order was entered between the parties on that same date. Then, on 4 April 1991, plaintiff filed a motion for summary judgment as to the issue of damages. On 15 April 1991, Judge Cy A. Grant held a hearing on plaintiff\u2019s motion and determined that there was no genuine issue as to any material fact. On 23 April 1991, Judge Grant entered a judgment awarding plaintiff $61,795.14 as a matter of law and ordered defendants Bissell and Rogers to pay plaintiff\u2019s attorney\u2019s fees in the amount of $7,330.00. Defendants Bissell and Rogers appealed.\nCharles D. Coppage for plaintiff, appellee. Brief signed by Herbert L. Thomas, who was later allowed to withdraw as counsel of record.\nAldridge, Seawell & Khoury, by Joe G. Adams, for defendants, appellants."
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