{ "id": 8522078, "name": "RC ASSOCIATES, a North Carolina General Partnership, Plaintiff v. REGENCY VENTURES, INC., HARRIS B. GUPTON and SAMIE E. GUPTON, Defendants", "name_abbreviation": "RC Associates v. Regency Ventures, Inc.", "decision_date": "1993-08-03", "docket_number": "No. 9218SC836", "first_page": "367", "last_page": "375", "citations": [ { "type": "official", "cite": "111 N.C. App. 367" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "58 ALR3d 201", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "299 S.E.2d 267", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521806 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0459-01" ] }, { "cite": "271 S.E.2d 58", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564391 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0123-01" ] }, { "cite": "402 S.E.2d 418", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "328 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543978, 2540654, 2540017, 2538132, 2539772 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/328/0093-01", "/nc/328/0093-02", "/nc/328/0093-04", "/nc/328/0093-03", "/nc/328/0093-05" ] }, { "cite": "392 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "99 N.C. App. 30", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520893 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/99/0030-01" ] }, { "cite": "302 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "308 N.C. 536", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707621 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/308/0536-01" ] }, { "cite": "298 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "60 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519470 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/60/0085-01" ] }, { "cite": "275 S.E.2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565589 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0351-01" ] }, { "cite": "269 S.E.2d 694", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 497", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551423 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0497-01" ] }, { "cite": "200 S.E.2d 40", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560879 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0236-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "187 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 140", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574023 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0140-01" ] }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757614, 4751602, 4754239, 4750583, 4751711 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0621-04", "/nc/312/0621-02", "/nc/312/0621-01", "/nc/312/0621-05", "/nc/312/0621-03" ] }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "656" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0221-01" ] }, { "cite": "407 S.E.2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553520, 2555586, 2555572 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0506-02", "/nc/329/0506-01", "/nc/329/0506-03" ] }, { "cite": "402 S.E.2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "102 N.C. App. 458", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524608 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/102/0458-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "190 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 697", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576386 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0697-01" ] }, { "cite": "250 S.E.2d 255", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 400", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566400 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0400-01" ] }, { "cite": "301 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562211, 8562157, 8562127, 8562066, 8562100 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0092-05", "/nc/301/0092-04", "/nc/301/0092-03", "/nc/301/0092-01", "/nc/301/0092-02" ] }, { "cite": "265 S.E.2d 240", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 162", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549625 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0162-01" ] }, { "cite": "308 S.E.2d 504", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 139", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522616 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0139-01" ] }, { "cite": "414 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "105 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524731 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc-app/105/0620-01" ] }, { "cite": "289 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569908 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0366-01" ] }, { "cite": "251 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 467", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567655 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0467-01" ] }, { "cite": "304 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 675", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4704355, 4704805, 4710377, 4706352, 4704729 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0675-05", "/nc/308/0675-04", "/nc/308/0675-02", "/nc/308/0675-03", "/nc/308/0675-01" ] } ], "analysis": { "cardinality": 811, "char_count": 19130, "ocr_confidence": 0.741, "pagerank": { "raw": 3.893997245925219e-07, "percentile": 0.9014699312585406 }, "sha256": "1fe62e1726d1c0e5fa5e53566febead5c2b301e62fa7ad7d56ce42081391a59e", "simhash": "1:87794f3b045d8c72", "word_count": 3158 }, "last_updated": "2023-07-14T15:07:55.768244+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and McCRODDEN concur." ], "parties": [ "RC ASSOCIATES, a North Carolina General Partnership, Plaintiff v. REGENCY VENTURES, INC., HARRIS B. GUPTON and SAMIE E. GUPTON, Defendants" ], "opinions": [ { "text": "ORR, Judge.\nDefendants appeal the entry of summary judgment, the award of attorney\u2019s fees, the denial of defendants\u2019 motion to set aside entry of default, and the failure of the trial court to hold defendant Regency Ventures, Inc. and defendant Harris B. Gupton jointly and severally liable for the recovery awarded for breach of the lease agreement. Plaintiff concedes that it is entitled to but one recovery of the principal amount of the judgment and the award of attorney\u2019s fees with respect to the claims on the lease agreement. Thus, defendant Regency Ventures, Inc. and defendant Harris B. Gupton are jointly and severally liable for that part of the judgment granting recovery on the lease and guaranty agreements.\nI.\nDefendants allege that the trial court erred in entering summary judgment against them because a genuine issue of material fact existed as to whether plaintiff made a reasonable attempt to mitigate damages as required by the lease agreement and by law. We agree.\nN.C. Rule of Civil Procedure 56(c) calls for summary judgment \u201cif 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 of law.\u201d The record only contains the pleadings and submitted affidavits.\nA party moving for summary judgment may prevail if it meets the burden of proving an essential element of the opposing party\u2019s claim is nonexistent or not supported by evidence. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979). If the moving party satisfies its burden of proof, then the burd\u00e9n shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982).\nThe Supplemental Affidavit of James W. Hall contains facts tending to show that Hall, as a general partner of the plaintiff, made a reasonable attempt to mitigate the damages of plaintiff by advertising that the property was available for lease or sale. Defendants offer paragraph 7 of the affidavit of Harris B. Gupton to show that a genuine issue of the reasonableness of plaintiff\u2019s attempts at mitigation exists. Paragraph 7 states:\nAfter the alleged default on the rent by Defendant Regency Ventures, Inc., James W. Hall, on behalf of the Plaintiff took control of the premises of the Regency Car Wash. While the said Premises was under the control of James W. Hall, the Plaintiff failed and refused to perform the following functions which would have greatly served to mitigate the Plaintiff\u2019s alleged damages:\na) James W. Hall failed an [sic] refused to continue the business as an operating and functioning car wash and thereby diminished its appeal to prospective buyers of the property. Prospective buyers who did express an interest in purchasing the property were prohibited by the Plaintiff to view the car wash in full operation.\nb) James W. Hall failed and refused to permit prospective buyers to adequately examine the premises or the business equipment.\nc) James W. Hall failed and refused to properly place the business on the market for sale even though several entities expressed an interest in purchasing the property for use as a commercial car wash.\nd) James W. Hall failed and refused to make the property available for examination and inspection by prospective lessors.\ne) James W. Hall, on information and belief, refused to entertain offers to purchase or lease by prospective purchasers or lessors.\nPlaintiff argues that these allegations are not sufficient to overcome summary judgment because they are not based on Mr. Gupton\u2019s personal knowledge and do not show affirmatively that Mr. Gupton is competent to testify to the allegations, as required by N.C. Rule of Civil Procedure 56(e). Whether the affidavit meets the requirements of Rule 56(e) is immaterial in light of the fact that plaintiff failed to make a timely objection to the form of the affidavit. Taylor v. Taylor Products, Inc., 105 N.C. App. 620, 414 S.E.2d 568 (1992). The record discloses no objection to the affidavit on Rule 56(e) grounds prior to appeal. Thus, plaintiff has waived any objection regarding these matters.\nPlaintiff also challenges the affidavit by saying that the allegations are untrue. This argument serves to support defendants\u2019 contention that the affidavit presents a genuine issue of material fact. A genuine issue of material fact is one in which the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. A genuine issue is one which can be maintained by substantial evidence. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504 (1983). Whether the creditor of a lease agreement has used diligence to mitigate damages is a genuine issue of material fact so as to challenge summary judgment. Equitable Leasing Corp. v. Myers, 46 N.C. App. 162, 265 S.E.2d 240, appeal dismissed, 301 N.C. 92 (1980).\nSummary judgment is a drastic measure and should be used with caution. Williams v. Carolina Power and Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979). All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion. Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972). The allegations in the defendants\u2019 affidavit, when taken as true, do constitute a legal defense that could reduce the amount of the judgment.\nWe hold that defendants\u2019 affidavit presents a genuine issue of material fact as to the adequacy of plaintiff\u2019s attempted mitigation of damages. Therefore, the trial court incorrectly granted summary judgment on the issue of damages.\nII.\nDefendants next challenge the award of attorney\u2019s fees. They first contend that the trial court erred in awarding excessive attorney\u2019s fees to the plaintiff without considering whether the amount allowed was reasonable. We disagree.\nN.C. Gen. Stat. \u00a7 6-21.2 authorizes the awarding of attorney\u2019s fees in actions to enforce obligations owed under an evidence of indebtedness (a lease) that provides for the payment of attorney\u2019s fees. The lease agreement in this case provides for the payment of \u201creasonable attorney\u2019s fees\u201d should the landlord need to employ an attorney to collect rent or enforce its other rights and remedies under the lease. Because the lease provides for reasonable attorney\u2019s fees and does not refer to any specific percentage, N.C.G.S. \u00a7 6-21.2(2) applies, which says that if the contract \u201cprovides for the payment of reasonable attorneys\u2019 fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the \u2018outstanding balance\u2019 owing on said . . . evidence of indebtedness.\u201d\nThe defendants\u2019 reliance on West End III Limited Partners v. Lamb, 102 N.C. App. 458, 402 S.E.2d 472, disc. review denied, 329 N.C. 506, 407 S.E.2d 857 (1991) is misplaced. The case at bar should be distinguished from West End III, as well as from Coastal Production v. Goodson Farms, 70 N.C. App. 221, 319 S.E.2d 650, disc. review denied, 312 N.C. 621, 323 S.E.2d 922 (1984). In those cases, the relevant contract provisions called for an award of attorney\u2019s fees in reference to a specific percentage of the amount owing. Thus, these awards fell under N.C.G.S. \u00a7 6-21.2(1) which requires the trial court to determine a reasonable percentage within the specified range. This determination necessarily requires some evidence of what percentage will be reasonable in each case, as West End III and Coastal Production so state. However, subdivision (2) has predetermined that 15% is a reasonable amount in our case.\nDefendants also oppose the award of attorney\u2019s fees against defendant Harris B. Gupton because he was guarantor of the lease and not a party to the lease. We hold that the guaranty contract provided for the award of attorney\u2019s fees, and the trial court correctly held the guarantor liable for that award.\nIn this State, the obligation of a guarantor of payment is separate and distinct from that of the debtor. EAC Credit Corp. v. Wilson, 281 N.C. 140, 187 S.E.2d 752 (1972). N.C.G.S. \u00a7 6-21.2 does not authorize collection of attorney\u2019s fees unless the guaranty contract sued upon so provides. Id.\nIn Wilson, the guaranty contract provided that the guarantor would be. liable for \u201cthe payment when due of any and all notes, accounts receivable, conditional sales contracts, chattel mortgages, indebtedness and liability . . .\u201d at any time made or carried by the debtor. Plaintiff argues that the guaranty contract provides for payment of attorney\u2019s fees in the clause stating that defendant Harris B. Gupton \u201cunconditionally guarantees the full and punctual payment of the rent and other charges provided for in this lease. . . .\u201d The lease provides for reasonable attorney\u2019s fees if necessary to collect rent.\nThis Court must decide if the language in the guaranty is sufficient to require an award of attorney\u2019s fees. There is judicial public policy against the award of attorney\u2019s fees. Stillwell Enterprises, Inc. v. Interstate Equipment Co., 300 N.C. 286, 266 S.E.2d 812 (1980). Also, the requirement that the guaranty itself provide for,the payment of attorney\u2019s fees insures that the guarantor is put on notice of the additional liability. One purpose of N.C.G.S. \u00a7 6-21.2 is to allow the debtor a last chance to pay the outstanding balance to avoid litigation and the award of attorney\u2019s fees. Coastal, 70 N.C. App. at 224, 319 S.E.2d at 656. However, the statute should be construed liberally, Stillwell Enterprises; narrow constructions are to be avoided, Hicks v. Albertson, 284 N.C. 236, 200 S.E.2d 40 (1973), and the plain, unambiguous meaning of the clause is that Mr. .Gupton guarantees all charges in the lease, one of which is attorney\u2019s fees.\nThe language in the guaranty contract is sufficient to put a guarantor on notice that he will be liable for attorney\u2019s fees if he fails to make the guaranteed payment before the creditor finds it necessary to employ an attorney to collect the debt. We hold that the trial court did not err in awarding attorney\u2019s fees on the guaranty contract, and the defendant Harris B. Gupton is jointly and severally liable for the award of attorney\u2019s fees, along with defendant Regency Ventures, Inc. On remand, the amount of the fees to be awarded should be redetermined on the basis of the eventual recovery.\nIII.\nDefendants\u2019 final argument alleges that the trial court erred in denying their motion to set aside entry of default. We disagree.\nN.C. Rule of Civil Procedure 55(d) provides that the court may set aside an entry of default for good cause shown. Defendant correctly argues that the showing required to set aside an entry of default is less stringent than that required to set aside a default judgment. Peebles v. Moore, 48 N.C. App. 497, 269 S.E.2d 694 (1980), modified and aff\u2019d, 302 N.C. 351, 275 S.E.2d 833 (1981). However, the determination of good cause to set aside an entry of default is in the trial court\u2019s discretion and will not be disturbed absent an abuse of discretion. Byrd v. Mortenson, 60 N.C. App. 85, 298 S.E.2d 170, modified and aff\u2019d, 308 N.C. 536, 302 S.E.2d 809 (1982). Defendant has the burden of establishing good cause to set aside entry of default. Roane-Barker v. Southeastern Hospital Supply Corp., 99 N.C. App. 30, 392 S.E.2d 663, cert. denied, 328 N.C. 93, 402 S.E.2d 418 (1990). A judge is subject to a reversal for abuse of discretion only upon a showing by a litigant that the challenged actions are manifestly unsupported by reason. Clark v. Clark, 301 N.C. 123, 271 S.E.2d 58 (1980).\nThe record shows that plaintiff filed the amended complaint on 8 January 1992, and a response pleading was due on 23 January 1992. The filing of plaintiff\u2019s motion for entry of default and the entry of default occurred on 3 February 1992, the same day defendants\u2019 attorney officially withdrew from the case. Plaintiff\u2019s motion for default judgment was served directly to defendants, certificate dated 2 March 1992. Defendants argue that the fact that they assumed their attorney had filed a response pleading constitutes good cause requiring the entry of default be set aside. But defendants never filed an answer and did not file a motion to set aside the entry of default until 3 April 1992, when they filed a response to plaintiff\u2019s motion.\nIn Bailey v. Gooding, 60 N.C. App. 459, 299 S.E.2d 267, disc. rev. denied, 308 N.C. 675, 304 S.E.2d 753 (1983), this Court held that the trial court did not abuse its discretion in failing to find good cause to set aside entry of default where defendants\u2019 answer was filed four months after expiration of the time allowed and more than one month after default was entered, and where there was nothing in the record to indicate what actions defendants took in the meantime to defend the case other than to deliver the suit papers to the insurance carrier. According to the record in the case sub judice, defendants never filed an answer and made no attempt to defend their case after their attorney withdrew until filing their responsive pleading to plaintiff\u2019s motion for default judgment or, alternatively, for summary judgment.\nThe evidence in the record does not compel this Court to find an abuse of discretion by the trial court. We hold that the denial of the defendants\u2019 motion to set aside entry of default was not in error.\nAffirmed in part; reversed and remanded in part.\nJudges WELLS and McCRODDEN concur.", "type": "majority", "author": "ORR, Judge." } ], "attorneys": [ "From this order and judgment, defendants appeal.", "Carruthers & Roth, P.A., by Kenneth L. Jones, for plaintiff-appellee.", "David B. Hough for defendant-appellants." ], "corrections": "", "head_matter": "RC ASSOCIATES, a North Carolina General Partnership, Plaintiff v. REGENCY VENTURES, INC., HARRIS B. GUPTON and SAMIE E. GUPTON, Defendants\nNo. 9218SC836\n(Filed 3 August 1993)\n1. Damages \u00a7 51 (NCI4th)\u2014 breach of lease \u2014effort to mitigate damages \u2014 genuine issue of material fact\nIn an action for breach of a lease agreement, the trial court erred in entering summary judgment for plaintiff because a genuine issue of material fact existed as to whether plaintiff made a reasonable attempt to mitigate damages as required by the parties\u2019 lease agreement and by law.\nAm Jur 2d, Damages \u00a7 909.\n2. Attorneys at Law \u00a7 55 (NCI4th)\u2014 breach of lease \u2014award of attorney\u2019s fees \u2014determination of reasonableness not required \u2014 statute applicable\nThere was no merit to defendant\u2019s contention that the trial court in an action for breach of a lease agreement erred in awarding excessive attorney\u2019s fees to plaintiff without considering whether the amount allowed was reasonable, since the lease agreement provided for the payment of \u201creasonable attorney\u2019s fees\u201d should the landlord need to employ an attorney to collect rent or enforce its other rights and remedies under the lease, but it did not refer to any specific percentage, and N.C.G.S. \u00a7 6-21.2(2) therefore applied so that the amount of attorney\u2019s fees should be 15% of the outstanding balance owing on said evidence of indebtedness.\nAm Jur 2d, Attorneys at Law \u00a7 277.\nAmount of attorneys\u2019 compensation in matters involving real estate. 58 ALR3d 201.\n3. Guaranty \u00a7 13 (NCI4th)\u2014 defendant as guarantor of lease agreement \u2014responsibility for attorney\u2019s fees \u2014award proper\nThe trial court did not err in awarding attorney\u2019s. fees against the individual defendant because he was a guarantor of a lease and not a party to it, since the guaranty contract provided that defendant \u201cunconditionally guarantees the full and punctual payment of the rent and other charges provided for in this lease . . the lease provided for reasonable attorney\u2019s fees if necessary to collect rent; and the language in the guaranty contract was sufficient to put a guarantor on notice that he would be liable for attorney\u2019s fees.\nAm Jur 2d, Guaranty \u00a7\u00a7 26 et seq.\n4. Rules of Civil Procedure \u00a7 55.1 (NCI3d)\u2014 failure of defendants to file answer \u2014 motion to set aside entry of default properly denied\nThe denial of defendants\u2019 motion to set aside entry of default was not in error where defendants never filed an answer and made no attempt to defend their case after their attorney withdrew until two months later when they filed their responsive pleading to plaintiff\u2019s motion for default judgment or, alternatively, for summary judgment. N.C.G.S. \u00a7 1A-1, Rule 55(d).\nAm Jur 2d, Judgments \u00a7 1169.\nAppeal by defendants from order and judgment entered 18 May 1992 by Judge W. Douglas Albright in Guilford County Superior Court. Heard in the Court of Appeals 17 June 1993.\nPlaintiff, RC Associates, is a North Carolina general partnership formed in 1990 upon execution of a joint venture agreement by several individuals, including defendants Harris B. Gupton and Samie E. Gupton, who are general partners. Mr. and Mrs. Gupton purchased some real property upon which they constructed a car wash. They sold the real property, with improvements, to plaintiff. Mr. Gupton\u2019s company, defendant Regency Ventures, Inc., leased the property and car wash from plaintiff. Defendant Harris B. Gupton guaranteed defendant Regency Ventures\u2019 obligations under the lease agreement. Defendant Regency Ventures defaulted on the lease payments, and defendant Harris B. Gupton defaulted on the guaranty. Mr. and Mrs. Gupton also defaulted on payments due under the joint venture agreement.\nPlaintiff\u2019s complaint, filed 13 June 1991, claimed relief against defendant Regency Ventures, Inc. for breach of a lease agreement, against defendant Harris Gupton for breach of a guaranty relating to that lease agreement and against the defendants Harris Gupton and Samie Gupton for the breach of a joint venture agreement. Plaintiff sought recovery of sums owed and attorney\u2019s fees. On 8 January 1992, plaintiff filed an amendment to the complaint claiming defendants Harris B. Gupton and Samie E. Gupton had failed to make additional capital contributions to plaintiff since the filing of the original complaint. Pursuant to the court\u2019s order, an answer was due from defendants on or before 23 January 1992.\nA responsive pleading was not filed by defendants, and the clerk of court entered an entry of default on 3 February 1992. On the same day, the court allowed the attorney of record for the defendants to withdraw from the case. On 2 March 1992, plaintiff filed a motion for default judgment or, alternatively, for summary judgment. On 3 April 1992, the defendants filed a response to that motion and a motion to set aside entry of default.\nAt a hearing on 8 May 1992, the trial court rendered a decision allowing the plaintiff\u2019s motions and denying the defendants\u2019 motion. The attorney for plaintiff drafted the order and judgment, which the trial court entered on 18 May 1992. In the judgment, the trial court granted judgment by default with respect to plaintiff\u2019s claim on the joint venture agreement and summary judgment with respect to the claims on the lease and guaranty agreements.\nFrom this order and judgment, defendants appeal.\nCarruthers & Roth, P.A., by Kenneth L. Jones, for plaintiff-appellee.\nDavid B. Hough for defendant-appellants." }, "file_name": "0367-01", "first_page_order": 397, "last_page_order": 405 }