{ "id": 11918755, "name": "PRECISION FABRICS GROUP, INC. v. TRANSFORMER SALES AND SERVICE, INC.", "name_abbreviation": "Precision Fabrics Group, Inc. v. Transformer Sales & Service, Inc.", "decision_date": "1995-11-21", "docket_number": "No. COA94-1181", "first_page": "866", "last_page": "870", "citations": [ { "type": "official", "cite": "120 N.C. App. 866" } ], "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": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "404 S.E.2d 703", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "707", "parenthetical": "Greene, J., concurring" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519746 ], "year": 1991, "pin_cites": [ { "page": "128", "parenthetical": "Greene, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0120-01" ] }, { "cite": "203 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "423" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554653 ], "year": 1974, "pin_cites": [ { "page": "130" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0129-01" ] }, { "cite": "195 S.E.2d 96", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "97-98" } ], "opinion_index": 0 }, { "cite": "17 N.C. App. 564", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556290 ], "year": 1973, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/nc-app/17/0564-01" ] } ], "analysis": { "cardinality": 464, "char_count": 9426, "ocr_confidence": 0.712, "pagerank": { "raw": 2.2269389344706595e-07, "percentile": 0.7783363045490297 }, "sha256": "0ac752284ff3bee4162e85519460ddbe7d006d0b812365f538ef568b58be1e8d", "simhash": "1:76bed0279ef91d00", "word_count": 1493 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge SMITH concur." ], "parties": [ "PRECISION FABRICS GROUP, INC. v. TRANSFORMER SALES AND SERVICE, INC." ], "opinions": [ { "text": "GREENE, Judge.\nPrecision Fabrics Group, Inc. (plaintiff) appe.als from an order granting summary judgment for Transformer Sales and Service, Inc. (defendant) entered 8 July 1994.\nPlaintiff filed an amended complaint on 17 August 1992, alleging breach of implied warranty and negligence after a transformer manufactured by defendant and sold to plaintiff failed to operate properly six months after delivery. Plaintiffs negligence action stated that defendant failed to properly design the transformer, failed to properly manufacture the winding coils and use uncontaminated oil, failed to properly inspect the transformer, and \u201cotherwise failfed] to use that degree of skill, care, caution and prudence reasonably expected of a manufacturer and distributor in similar circumstances . . . .\u201d Plaintiff also alleged that through defendant\u2019s negligence, defendant breached implied warranties of merchantability and fitness because the transformer, among other things, was not \u201cfit for the purpose for which it was sold or purchased, . . . was not made of good and merchantable materials, . . . contained defective and improperly manufactured windings, [and] was not properly inspected, tested, or serviced\nDefendant denied any breach of warranty or negligence and asserted several affirmative defenses, including contributory negligence and assumption of risk. On 21 June 1994, defendant made a motion for summary judgment, submitting affidavits of William F. Outlaw (Outlaw), its Vice-President, and Johnny B. Dagenhart (Dagenhart), a registered professional engineer.\nOutlaw\u2019s affidavit stated, among other things, that defendant\u2019s design of the transformer \u201cmeets and exceeds all the requirements for proper performance of this unit,\u201d and \u201c[engineering guidelines utilized in the design . . . are in accordance with ANSI (American National Standard Institute) and NEMA maintenance standards . . ..\u201d Further, the transformer was thoroughly tested before leaving the plant and tests did not indicate any defect within the unit. The materials used to construct the transformer were new and \u201cwere represented by the suppliers as being of good quality.\u201d\nOn 1 July 1994 plaintiff served defendant, by mail, with an affidavit in opposition to the summary judgment motion, and attached to the affidavit was an unverified purchase order. At the hearing, held 5 July 1994, defendant moved the court to receive into evidence Outlaw\u2019s and Dagenhart\u2019s affidavits as well as defendant\u2019s answers to plaintiff\u2019s first set of discovery, and Dagenhart\u2019s deposition. Plaintiff moved the court to receive plaintiffs affidavit and the purchase order. Plaintiffs documents had not been filed with the court at that time, but were filed with the court later that morning. The attorney for the defendant stated in open court that he had not yet received the plaintiff\u2019s documents. The trial court found that plaintiff\u2019s affidavit and purchase order had not been properly served on defendant or filed with the court \u201cat least one day prior to this matter coming on for hearing on 5 July 1994[,]\u201d and \u201c[p]ursuant to Battle v. Nash, . . . the Rules of Civil Procedure, and in its discretion, the Court chooses not to receive\u201d these items. It also found that the purchase order had not been properly authenticated. Summary judgment was granted for defendant and plaintiff now appeals.\nThe issues are whether (I) the trial court erred in refusing to consider plaintiff\u2019s evidence in opposition to defendant\u2019s summary judgment motion; and (II) the defendant satisfied its burden of proof that there existed no genuine issue of material fact.\nI\nPlaintiff argues that it served and filed its affidavit and purchase order in a timely fashion and that this evidence should have been received and considered by the trial court. We disagree.\nThere is no dispute that the plaintiff\u2019s affidavit was served on the defendant\u2019s attorney, within the meaning of Rule 5(b), on 1 July 1994. N.C.G.S. \u00a7 1A-1, Rule 5(b) (1990). The plaintiff\u2019s attorney certified that on 1 July 1994 she deposited the documents in the mail addressed to defendant\u2019s attorney. Whether the service was timely requires the application of several rules. Affidavits in opposition to summary judgment must be served \u201cnot later than one day before the hearing.\u201d N.C.G.S. \u00a7 1A-1, Rule 6(d) (1990); N.C.G.S. \u00a7 1A-1, Rule 56(c) (1990). In computing the period of time, \u201cthe day of the act... is not to be included\u201d and \u201c[t]he last day of the period ... is to be included, unless it is a Saturday, Sunday or a legal holiday . . . .\u201d N.C.G.S. \u00a7 1A-1, Rule 6(a) (1990). When the service is by mail, three days must be added to the prescribed period. See N.C.G.S. \u00a7 1A-1, Rule 6(e) (1990); Trust Co. v. Rush, 17 N.C. App. 564, 566, 195 S.E.2d 96, 97-98 (1973). In applying these rules, we take judicial notice that 1 July 1994 was a Friday, 2 July 1994 was a Saturday, 3 July 1994 was a Sunday, and 4 July 1994 was a legal holiday.\nIn this case, because the service of the plaintiff\u2019s affidavit was made by mail, the plaintiff was required to serve the documents four days prior to the date of the hearing. In computing the four days, the days of 2 July through 4 July must be excluded. Thus, in order for the service to be timely it had to be mailed on 27 June 1994. Accordingly, the service by mail on 1 July 1994 was not timely and the trial court properly refused to consider the plaintiffs documents.\nFor an additional reason, the trial court properly refused to consider the plaintiff\u2019s affidavit in opposition to the summary judgment. This Court has held that Rule 56(c) implicitly requires that opposing affidavits be \u201cfiled prior to the day of the [summary judgment] hearing.\u201d Nationwide Ins. Co. v. Chantos, 21 N.C. App. 129, 130, 203 S.E.2d 421, 423 (1974); but see N.C.G.S. \u00a7 1A-1, Rule 5(d) (1990) (permitting filing \u201cbefore service or within five days\u201d after service). In this case, the filing of the documents did not occur until the day of the hearing.\nThe purchase order the plaintiff attempted to offer, however, is not subject to the same prior filing requirement, Battle v. Nash Tech. College, 103 N.C. App. 120, 128, 404 S.E.2d 703, 707 (1991) (Greene, J., concurring), and is admissible if properly authenticated. N.C.G.S. \u00a7 1A-1, Rule 56(e) (1990). In this case it was not properly authenticated and thus properly excluded by the trial court.\nII\nPlaintiff argues that even if the affidavit was properly excluded, summary judgment was erroneously granted because defendant did not present evidence sufficient to satisfy its burden of proof that no genuine issue of material fact existed in the record.\nBecause plaintiff\u2019s evidence at the hearing was properly excluded, the issue is whether defendant carried its burden of proof. Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Plaintiff alleged negligence by defendant in manufacturing the transformer, \u201cand in so doing [defendant] breached implied warranties of merchantability.\u201d Defendant\u2019s uncontroverted evidence establishes that the transformer was tested and met national industry standards before it was delivered to plaintiff; that the transformer was made of new materials and there was no indication of any defect in the materials or the transformer after it was manufactured; and that the transformer was properly designed. This evidence refutes the allegations of the complaint and supports the motion for summary judgment. Because the plaintiff offered nothing to counter defendant\u2019s evidence, summary judgment for the defendant was proper. N.C.G.S. \u00a7 1A-1, Rule 56(e) (1990) (adverse party cannot rest on mere allegations of pleadings but must \u201cset forth specific facts showing that there is a genuine issue for trial\u201d).\nAffirmed.\nChief Judge ARNOLD and Judge SMITH concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Cozen and O\u2019Connor, by Pamela M. Pearson, for plaintiff - appellant.", "Mast, Morris, Schulz & Mast, by Bradley N. Schulz and George B. Mast, for defendant-appellee." ], "corrections": "", "head_matter": "PRECISION FABRICS GROUP, INC. v. TRANSFORMER SALES AND SERVICE, INC.\nNo. COA94-1181\n(Filed 21 November 1995)\n1. Trial \u00a7 60 (NCI4th)\u2014 summary judgment hearing \u2014 plaintiffs evidence not timely served, filed, or authenticated\nThe trial court properly refused to consider plaintiff\u2019s affidavit and purchase order in a summary judgment hearing where the affidavit was not served in a timely manner; the affidavit was not filed prior to the day of the hearing; and the purchase order was not properly authenticated.\nAm Jur 2d, Summary Judgment \u00a7\u00a7 16, 20.\n2. Negligence \u00a7 104 (NCI4th)\u2014 negligent manufacture of transformer alleged \u2014 summary judgment motion \u2014 burden met by defendant\nIn an action to recover for negligent manufacture of a transformer, defendant carried its burden of proof on a summary judgment motion where defendant\u2019s uncontroverted evidence established that the transformer was tested and met national industry standards before it was delivered to plaintiff; the transformer was made of new materials and there was no indication of any defect in the materials or the transformer after it was manufactured; the transformer was properly designed; and plaintiff offered nothing to counter defendant\u2019s evidence.\nAm Jur 2d, Negligence \u00a7 21; Products Liability \u00a7\u00a7 224, 302.\nAppeal by plaintiff from order entered 8 July 1994 in Guilford County Superior Court by Judge' Catherine C. Eagles. Heard in the Court of Appeals 18 October 1995.\nCozen and O\u2019Connor, by Pamela M. Pearson, for plaintiff - appellant.\nMast, Morris, Schulz & Mast, by Bradley N. Schulz and George B. Mast, for defendant-appellee." }, "file_name": "0866-01", "first_page_order": 900, "last_page_order": 904 }