{ "id": 8521567, "name": "MARY GILLIS, Guardian Ad Litem for WILLIAM TODD WALLACE v. WHITLEY'S DISCOUNT AUTO SALES, INC.", "name_abbreviation": "Gillis v. Whitley's Discount Auto Sales, Inc.", "decision_date": "1984-09-04", "docket_number": "No. 8320DC916", "first_page": "270", "last_page": "280", "citations": [ { "type": "official", "cite": "70 N.C. App. 270" } ], "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": "107 S.E. 2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "249 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619887 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/nc/249/0617-01" ] }, { "cite": "29 A.L.R. 3d 1270", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "opinion_index": 0 }, { "cite": "25 S.E. 975", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1896, "opinion_index": 0 }, { "cite": "119 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654975 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/nc/119/0323-01" ] }, { "cite": "116 S.E. 261", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1923, "opinion_index": 0 }, { "cite": "185 N.C. 109", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655486 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nc/185/0109-01" ] }, { "cite": "307 S.E. 2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527332 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0582-01" ] }, { "cite": "276 S.E. 2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "263 S.E. 2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "857-58" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551028 ], "year": 1980, "pin_cites": [ { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/nc-app/45/0696-01" ] }, { "cite": "172 S.E. 2d 19", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 279", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561001 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0279-01" ] }, { "cite": "258 S.E. 2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 246", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569878 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0246-01" ] }, { "cite": "238 S.E. 2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565135 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0431-01" ] }, { "cite": "203 S.E. 2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "423-24" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554653 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0129-01" ] }, { "cite": "268 S.E. 2d 205", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564216 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0631-01" ] }, { "cite": "222 S.E. 2d 392", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569619 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0343-01" ] }, { "cite": "183 S.E. 2d 420", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "12 N.C. App. 286", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549183 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/12/0286-01" ] }, { "cite": "218 S.E. 2d 518", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "27 N.C. App. 205", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551940 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/27/0205-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1981, "opinion_index": 0 } ], "analysis": { "cardinality": 814, "char_count": 22924, "ocr_confidence": 0.811, "pagerank": { "raw": 3.1864583796720887e-07, "percentile": 0.8648681834346327 }, "sha256": "78ea202524851d932ad86e2757ae769a37ddb99f24461dfba996b0d7988d3ce5", "simhash": "1:43e863ac3cf02a40", "word_count": 3856 }, "last_updated": "2023-07-14T18:14:59.534868+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Johnson concur." ], "parties": [ "MARY GILLIS, Guardian Ad Litem for WILLIAM TODD WALLACE v. WHITLEY\u2019S DISCOUNT AUTO SALES, INC." ], "opinions": [ { "text": "BECTON, Judge.\nFrom the denial of its motion for a continuance and the grant of summary judgment in favor of plaintiff in an action to disaffirm a minor\u2019s contract, defendant appeals.\nOn 21 August 1981, William Todd Wallace purchased a 1977 Datsun automobile from Whitley\u2019s Discount Auto Sales, Inc. (Whitley\u2019s) for $3,080. At the time, Wallace had just turned sixteen years old. Wallace paid $1,200 in cash from Social Security benefits and financed the remaining $1,880 with a car loan from Richmond County Bank. According to the credit application, Wallace was eighteen years old. Whitley\u2019s endorsed Wallace\u2019s credit application. After Wallace and the Datsun had been involved in two car accidents, Wallace returned the Datsun to Whitley\u2019s on 5 May 1982 and demanded payment of all monies paid.\nWhen Whitley\u2019s did not return any of the purchase money, plaintiff, Mary Gillis, Wallace\u2019s guardian ad litem, brought this action on 15 June 1982 to disaffirm Wallace\u2019s contract with Whitley\u2019s, since it was entered into while Wallace was an unemanci-pated minor. In her amended Complaint, Gillis alleged that Wallace had \u201cpaid [Whitley\u2019s] $1,200.00 in cash and the balance of $1,880.00 was paid to [Whitley\u2019s] from proceeds of a loan to William Todd Wallace from Richmond County Bank. William Todd Wallace has paid $839.65 to Richmond County Bank on the loan.\u201d Gillis sought to recover treble damages in the amount of $9,240 for violations of N.C. Gen. Stat. \u00a7 75-1.1 (1981), the unfair or deceptive acts or practices statute. The treble damages figure was based on the total purchase price of $3,080.\nOn 24 May 1983, Gillis made a motion for partial summary judgment on all issues except the violations of G.S. \u00a7 75-1.1, and Whitley\u2019s attorney received notice of the motion. Whitley\u2019s did not respond with affidavits or as otherwise provided by N.C. Gen. Stat. \u00a7 1A-1, Rule 56 (1983). The motion for partial summary judgment was heard on 6 June 1983. Whitley\u2019s oral motion for a continuance was denied. At the hearing, Gillis abandoned the G.S. \u00a7 75-1.1 claim. The trial court ordered Whitley\u2019s to pay $3,080, the full purchase price of the Datsun, plus the costs of the action.\nI\nWhitley\u2019s contends, on appeal, that the trial court erred in (1) denying Whitley\u2019s motion for a continuance; (2) entering sunimary judgment on the issue of liability; and (3) awarding Wallace $3,080 in damages.\nII\nOn both 6 June 1983, the day of the hearing on the motion for summary judgment, and on the following day, 7 June 1983, Whitley\u2019s retained counsel, Donald M. Dawkins, was scheduled to argue before our Supreme Court. At the hearing on the motion, his associate, John Daniel, made an oral motion for a continuance until 8 June 1983. The trial court denied his motion. Whitley\u2019s argues on appeal that the trial court erred in denying its motion, since\n[i]n this case, Donald M. Dawkins, a senior member of Pittman, Pittman & Dawkins, P.A., was specifically retained by Appellant to handle the case in its entirety. The sole purpose of John Daniel, the associate, in meeting the \u2018calendar call\u2019 was to make a motion to continue until Wednesday morning, June 8, 1983. He was not authorized to proceed with the hearing on summary judgment. Furthermore, the senior member, Donald M. Dawkins, had no authority to delegate Appellant\u2019s case to such junior member as the delegation of a case to a junior member without the express consent of a client who has specifically chosen a senior member would be unethical.\nWe affirm.\nThe granting of a motion for a continuance is within the trial court\u2019s discretion and its exercise will not be reviewed absent a manifest abuse of discretion. Jenkins v. Jenkins, 27 N.C. App. 205, 218 S.E. 2d 518 (1975); 4A N.C. Gen. Stat. App. I (5), General Rules of Practice for the Superior and District Courts 3 (Supp. 1983). In reviewing the record we note that Daniel had been actively involved in the case for a prolonged period of time. In fact, from December 1982 until the hearing in June 1983, Daniel signed all documents filed on behalf of Whitley\u2019s and received all documents sent by Gillis. Under these circumstances, the trial court did not abuse its discretion in deciding that Daniel could properly represent Whitley\u2019s at the hearing. Further, as the trial court stated at the hearing:\n[S]ince it\u2019s basically a summary judgment, a question of law, I don\u2019t think there\u2019s anything\u2014\nMr. DANIEL: Thank you.\nThe COURT: \u2014that would be prejudiced by him not being here, that you can\u2019t properly present for him.\nMoreover, Dawkins was certainly aware when notice of hearing was served on 24 May 1983 that he would be arguing in the Supreme Court on 6 and 7 June. He should have attempted to reschedule the hearing in advance, rather than risk the suggestion of a delay tactic on the day of the hearing. See Austin v. Austin, 12 N.C. App. 286, 183 S.E. 2d 420 (1971); Jenkins.\nWhitley\u2019s argues that \u201c[a] continuance for forty-eight hours would not seem to be an unreasonable delay in this case. Appel-lee\u2019s motion for summary judgment had been filed and served only twelve days although the case had been pending since June 22, 1982. . . .\u201d G.S. \u00a7 1A-1, Rule 56(c) (1983) requires that a motion be served at least ten days before the date fixed for the hearing. Wallace complied with the notice requirement by serving the motion on 24 May 1983.\nFurther, it is clear from the transcript of the hearing that Daniel did not argue his own lack of authority as the grounds for his motion for a continuance. Instead, Daniel suggested that there were valid factual issues for the jury, but that he was unable to present the necessary opposing materials at the time.\nOn a motion for summary judgment the moving party has the burden of establishing that there is no genuine issue as to any material fact. G.S. \u00a7 1A-1, Rule 56(c) (1983); Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). Once the moving party has met its burden, the opposing party may not rest on the mere allegations or denials of his pleading. G.S. \u00a7 1A-1, Rule 56(e) (1983); Steel Creek Dev. Corp. v. James, 300 N.C. 631, 268 S.E. 2d 205 (1980). Instead, the opposing party must set forth specific facts showing that there is a genuine issue for trial, either by affidavits or as otherwise provided in G.S. \u00a7 1A-1, Rule 56 (1983). G.S. \u00a7 1A-1, Rule 56(e) (1983). If the opposing party is unable to present the necessary opposing material, he may seek the protection of G.S. \u00a7 1A-1, Rule 56(f) (1983), which gives the trial court the discretion to refuse the motion for judgment or order a continuance, if the opposing party states by affidavit the reasons why he is unable to present the necessary opposing material. Either an affidavit pursuant to G.S. \u00a7 1A-1, Rule 56(e) (1983) or an affidavit pursuant to G.S. \u00a7 1A-1, Rule 56(f) (1983) must be filed prior to the day of hearing. G.S. \u00a7 1A-1, Rule 56(c) (1983); 10A C. Wright & A. Miller, Federal Practice and Procedure \u00a7 2740, at 531 (2d ed. 1983) (hereinafter cited as Wright & Miller) (Federal Rule 56 substantially the same).\nHowever, Whitley\u2019s had filed no affidavits or other materials, as provided in G.S. \u00a7 1A-1, Rule 56(e) (1983) showing that there was a genuine issue for trial. Nor had Whitley\u2019s filed an affidavit pursuant to G.S. \u00a7 1A-1, Rule 56(f) (1983), enabling the trial court to refuse the motion for judgment or order a continuance.\nWe conclude that the trial court did not abuse its discretion in denying Whitley\u2019s motion for a continuance.\nIll\nOn the day of the hearing on Wallace\u2019s summary judgment motion, Gillis filed the affidavit of Ruby Wallace, the minor\u2019s grandmother, who stated:\nThat she is the grandmother of William Todd Wallace; that William Todd Wallace draws social security income by reason of the death of his father; that William Todd Wallace purchased an automobile from Whitley\u2019s Discount Auto Sales, Inc. in August, 1981; that the $1,200 down payment that William Todd Wallace paid to Whitley\u2019s Discount Auto Sales, Inc. came from a savings account derived from William Todd Wallace\u2019s social security income, and from no other source.\nThe trial court relied on Mrs. Wallace\u2019s affidavit in making its finding of fact No. 8:\n8. That the $1,200.00 down payment paid by William Todd Wallace to defendant came from Social Security benefits paid to William Todd Wallace arising out of the death of said minor\u2019s father, as set forth in the affidavit presented.\nCiting Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E. 2d 421 (1974), rev\u2019d on other grounds, 293 N.C. 431, 238 S.E. 2d 597 (1977), aff\u2019d, 298 N.C. 246, 258 S.E. 2d 334 (1979), Whitley\u2019s contends that the affidavit was inadmissible under G.S. \u00a7 1A-1, Rule 56(c) (1983), and, therefore, this Court should vacate and remand for a new hearing. We find the affidavit admissible.\nIn Nationwide, this Court held that G.S. \u00a7 1A-1, Rule 6(d) (1983) requires that an affidavit in support of a Rule 56 motion be served with the motion at least ten days prior to hearing. This Court further held that the trial court may exercise its discretionary powers under G.S. \u00a7 1A-1, Rule 6(b) (1983) to order the time within which to file and serve the affidavits enlarged if the request is made prior to making the motion for summary judgment. If the request is made after the motion for summary judgment has been served, there must be a showing of excusable neglect. There is no evidence in the record to suggest that a request for enlargement of time was ever made. Although filing the affidavit on the day of the hearing violated the technical requirements of G.S. \u00a7 1A-1, Rule 6(d) (1983), nevertheless, on these facts, we find no prejudice in the admission of the affidavit. Compare 10A Wright & Miller, supra, \u00a7 2719, at 10-11 (no prejudice-failure to comply with notice requirement of Rule 56).\nIn Gillis\u2019 motion for summary judgment she stated:\nIn support of said motion, plaintiff shows unto the court the following:\n* * *\n5. The $1,200.00 in cash paid by plaintiff to defendant represented funds of the plaintiff and plaintiff will furnish proof of the ownership of such funds at the hearing.\nMrs. Wallace\u2019s affidavit provided the promised proof. Therefore, Whitley\u2019s was put on notice by Wallace\u2019s motion as to the contents of the proffered affidavit, namely, that Wallace was asserting ownership of the $1,200 down payment. Further, in Whitley\u2019s interrogatories, Whitley\u2019s asked, \u201cIf unemployed, by what means did William Todd Wallace acquire $1,200.00 for the down payment to defendant for a 1977 Datsun automobile?\u201d Gillis replied, \u201cFrom Social Security benefits William Todd Wallace receives by reason of his deceased father.\u201d The contents of Mrs. Wallace\u2019s affidavit simply reiterated the information Whitley\u2019s had gleaned in discovery.\nIn Nationwide the affidavit filed on the day of the hearing contained information which was being offered for the first time that day. This Court stressed, \u201cIf this practice were permitted, affidavits in support of a motion for summary judgment could always come as a surprise to the opposing party and would effectively deny the opposing party a chance to present affidavits in opposition to the motion.\u201d Nationwide, 21 N.C. App. at 131, 203 S.E. 2d at 423-24.\nThe information in Mrs. Wallace\u2019s affidavit did not come as a surprise to Whitley\u2019s. Therefore, Whitley\u2019s was not denied the opportunity to file opposing affidavits. We conclude that the affidavit was admissible to support Wallace\u2019s motion for summary judgment and therefore that a new hearing is not warranted.\nIV\nWhitley\u2019s argues that the trial court erred in granting summary judgment on the issue of liability when there were legitimate issues of fact as to (1) whether the car was a necessity, and (2) whether Wallace perpetrated a fraud on Whitley\u2019s by misrepresenting his age. We affirm.\nUnder the common-law rule, the conventional contracts of a minor are voidable, except those for necessaries and those authorized by statute. Nationwide Mut. Ins. Co. v. Chantos, 293 N.C. 431, 238 S.E. 2d 597 (1977); Gastonia Personnel Corp. v. Rogers, 276 N.C. 279, 172 S.E. 2d 19 (1970). The minor or his legal representative is free to disaffirm the minor\u2019s contract either during his minority or within a reasonable time after the minor reaches majority. Id. Whitley\u2019s did not plead the affirmative defense that the car was a necessary in its Answer, as required by N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (1983). It is true that this Court recently held that \u201c[u]npled affirmative defenses may be heard for the first time on motion for summary judgment even though not asserted in the answer at least where both parties are aware of the defense.\u201d Dickens v. Puryear, 45 N.C. App. 696, 698, 263 S.E. 2d 856, 857-58 (1980), rev\u2019d on other grounds, 302 N.C. 437, 276 S.E. 2d 325 (1981).\nIn Dickens, counsel for both sides had fully briefed and argued the unpled affirmative defense before the trial court. Daniel simply raised the affirmative defense at the hearing, \u201c[t]here\u2019s a question of fact as to whether or not the car was a necessity. . . .\u201d He submitted no brief to the trial court. He was unprepared to argue before the trial court the specific facts comprising the unpled affirmative defense. Since the affirmative defense that the car was a necessity was not pleaded or effectively argued before the trial court, it cannot be raised for the first time on appeal. Gilbert v. Thomas, 64 N.C. App. 582, 307 S.E. 2d 853 (1983). Whitley\u2019s should have avoided this result by submitting an affidavit under G.S. \u00a7 1A-1, Rule 56(e) (1983) stating the specific facts supporting its affirmative defense or by submitting an affidavit under G.S. \u00a7 1A-1, Rule 56(f) (1983), stating the reasons why it could not present the necessary opposing material as discussed in II, supra.\nAlthough pleaded as a defense, Whitley\u2019s second argument for vacating the summary judgment, Wallace\u2019s fraudulent misrepresentation of his age, also fails. A minor\u2019s representation of his age does not bar him from disaffirming his contract. Greensboro Morris Plan Co. v. Palmer, 185 N.C. 109, 116 S.E. 261 (1923); Carolina Interstate Bldg. & Loan Ass\u2019n v. Black, 119 N.C. 323, 25 S.E. 975 (1896); see also Annot., 29 A.L.R. 3d 1270 (1970). Therefore, Wallace\u2019s allegedly fraudulent misrepresentation of his age was not a valid defense to Wallace\u2019s action to disaffirm his contract.\nWe hold that the trial court did not err in granting summary judgment on the issue of liability. Necessaries and fraudulent misrepresentation were not issues of fact in this action, for the reasons stated above.\nV\nWhitley\u2019s argues that even \u201c[i]f [Wallace] was entitled to summary judgment as to liability . . . $3,080.00 was not the appropriate measure of damages.\u201d\nOn a motion for summary judgment the moving party has the burden of establishing the absence of any issue of material fact. G.S. \u00a7 1A-1, Rule 56(c) (1983). On the issue of damages, Gillis failed to meet her burden to establish Wallace\u2019s entitlement to $3,080, the full purchase price. We reverse in part and remand.\nWhen a minor disaffirms a contract, he may recover the consideration he has paid, if he restores whatever part he still has of the benefit he received under the contract. Fisher v. Taylor Motor Co., 249 N.C. 617, 107 S.E. 2d 94 (1959). In Fisher, the minor\u2019s father gave the minor part of the purchase price for the car; the minor was entitled to recover the purchase price less the amount his father had paid. Consequently, in this case, Wallace is entitled to the consideration he personally has paid, since he has returned the damaged car to Whitley\u2019s.\nGillis submitted her pleadings, Whitley\u2019s answers to her interrogatories, Wallace\u2019s credit application, and Mrs. Wallace\u2019s affidavit in support of her motion for summary judgment. In Gillis\u2019 original and amended unverified complaints she alleged:\nOn or about August 21, 1981, William Todd Wallace entered into a contract with defendant for the purchase of a 1977 Datsun automobile for the total price of $3,080.00. William Todd Wallace paid to defendant $1,200.00 in cash and the balance of $1,880.00 was paid to defendant from proceeds of a loan to William Todd Wallace from Richmond County Bank. William Todd Wallace has paid $839.65 to Richmond County Bank on the loan.\nWhitley\u2019s admitted in its answers to Gillis\u2019 interrogatories that it had received $1,200 in cash from William Todd Wallace. Mrs. Wallace stated in her affidavit that the $1,200 cash payment came from her grandson\u2019s, William Todd Wallace\u2019s, savings account, which contained his accumulated social security benefits. Therefore, Gillis did establish that the $1,200 in cash belonged to William Todd Wallace. Since Whitley\u2019s did not present opposing materials to contest Wallace\u2019s ownership of the $1,200 cash payment or file a G.S. \u00a7 1A-1, Rule 56(f) (1983) affidavit to delay the hearing, Gillis was entitled to recover the $1,200 as a matter of law. G.S. \u00a7 1A-1, Rule 56(c) (1983).\nHowever, Gillis has failed to show that Wallace is entitled to the $1,880 in bank loan proceeds as a matter of law. In Gillis\u2019 unverified complaints she alleged that Wallace had entered into an $1,880 loan agreement with Richmond County Bank. She further alleged that Wallace had paid $839.65 on the loan. Whitley\u2019s admitted in its answers to Gillis\u2019 interrogatories that it had received $1,880 of the purchase price from the Richmond County Bank, as evidenced by Wallace\u2019s credit application. None of the materials submitted on the motion for summary judgment establish Wallace\u2019s ongoing loan liability conclusively, especially in light of Wallace\u2019s credit application and Whitley\u2019s answers to Gillis\u2019 interrogatories, which reveal Whitley\u2019s liability as an endorser. Gillis\u2019 unverified complaint alone is insufficient to establish Wallace\u2019s loan payments. See 10A Wright & Miller, supra, \u00a7 2722, at 46 & n. 3. Moreover, from the pleadings it is even unclear whether Wallace is current on his loan payments. Since Gillis has not met her burden, Whitley\u2019s is free to rely on the \u201cmere allegations or denials of [its] pleading.\u201d G.S. \u00a7 1A-1, Rule 56(e) (1983). In its Answer, Whitley\u2019s alleged as\na further answer and second defense, defendant alleges that a large part of the purchase monies paid on the 1977 Datsun was not the property of the plaintiff but of other parties and/or corporations not parties to this lawsuit; and that such sums, the plaintiff is not entitled to recover from the defendant.\nAs a minor, Wallace is only entitled to recover the consideration he personally has paid or is continuing to pay under a valid loan agreement; he is not entitled, as a matter of law, to the total loan liability he originally incurred. Fisher. A minor is not entitled to a windfall. He is merely to be made whole. Therefore, the trial court erred in awarding Gillis the full loan amount, $1,880, on summary judgment, based on the materials presented in support of the motion.\nWe reverse in part and remand to the trial court for further proceedings consistent with this decision.\nVI\nIn conclusion, we find that the trial court did not err in denying Whitley\u2019s motion for a continuance and in granting Gillis\u2019 motion for summary judgment on the issue of liability, but did err in awarding damages of $3,080 on summary judgment.\nReversed in part and remanded.\nJudges Wells and Johnson concur.", "type": "majority", "author": "BECTON, Judge." } ], "attorneys": [ "Page, Page & Webb, by Alden B. Webb, for plaintiff ap-pellee.", "Pittman, Pittman & Dawkins, P.A., by Donald M. Dawkins, for defendant appellant." ], "corrections": "", "head_matter": "MARY GILLIS, Guardian Ad Litem for WILLIAM TODD WALLACE v. WHITLEY\u2019S DISCOUNT AUTO SALES, INC.\nNo. 8320DC916\n(Filed 4 September 1984)\n1. Rules of Civil Procedure \u00a7 56; Trial \u00a7 3.2\u2014 summary judgment hearing \u2014 denial of continuance \u2014 absence of retained counsel \u2014 hearing conducted by associate\nThe trial court did not err in denying defendant\u2019s oral motion for continuance of a summary judgment hearing made on the ground that defendant\u2019s retained counsel was scheduled to argue before the Supreme Court on the day of the hearing where the trial court decided that an associate who made the motion could properly represent defendant at the hearing; the associate had been actively involved in the case for a prolonged time; the associate did not argue his lack of authority as the ground for his motion for a continuance; and defendant had filed no affidavits or other materials showing that there was a genuine issue for trial or an affidavit under Rule 56(e) showing why it was unable to present the necessary opposing material.\n2. Rules of Civil Procedure \u00a7 56.1\u2014 summary judgment \u2014 affidavit filed on day of hearing\nAlthough plaintiffs filing of an affidavit on the day of the hearing of a motion for summary judgment violated the technical requirements of G.S. 1A-1, Rule 6(d), admission of the affidavit was not prejudicial error where the information in the affidavit came as no surprise to defendant since defendant was put on notice by the summary judgment motion as to the contents of the affidavit, and the affidavit simply reiterated information defendant had gleaned on discovery.\n3. Appeal and Error \u00a7 4; Infants \u00a7 2.1\u2014 disaffirmance of minor\u2019s contract \u2014 defense of necessity not presented on appeal\nIn an action to disaffirm a minor\u2019s purchase of a car, since the affirmative defense that the car was a necessity was not pleaded or effectively argued before the trial court at a hearing on plaintiffs motion for summary judgment, it could not be raised for the first time on appeal.\n4. Infants \u00a7 2\u2014 contract by minor \u2014 right to disaffirm \u2014 misrepresentation as to age\nA minor\u2019s misrepresentation of his age did not bar him from disaffirming his contract for the purchase of a car.\n5. Infants \u00a7 2.1\u2014 disaffirmance of minor\u2019s contract \u2014 recovery of consideration\nWhen a minor disaffirms a contract, he may recover the consideration he has paid if he restores whatever part he still has of the benefit he received under the contract.\n6. Infants \u00a7 2.1\u2014 minor\u2019s disaffirmance of car purchase \u2014 recovery of down payment\nA minor was entitled to recover the down payment on the purchase of a car after his disaffirmance of the purchase and return of the car to defendant dealer where the down payment came from his savings account containing his accumulated social security benefits.\n7. Infants \u00a7 2.1\u2014 minor\u2019s disaffirmance of car purchase \u2014 recovery of proceeds of bank loan \u2014 insufficient evidence\nIn an action to disaffirm a minor\u2019s purchase of a car, plaintiffs evidence on motion for summary judgment failed to show that the minor was entitled to recover the total proceeds of a bank loan used to purchase the car where plaintiffs materials failed to establish the minor\u2019s ongoing loan liability and the amount of the minor\u2019s payments on the loan.\nAppeal by defendant from Burris, Judge. Order entered 6 June 1983 in District Court, RICHMOND County. Heard in the Court of Appeals 11 May 1984.\nPage, Page & Webb, by Alden B. Webb, for plaintiff ap-pellee.\nPittman, Pittman & Dawkins, P.A., by Donald M. Dawkins, for defendant appellant." }, "file_name": "0270-01", "first_page_order": 302, "last_page_order": 312 }