BB&T v. Bing
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA13-184 NORTH CAROLINA COURT OF APPEALS Filed: 15 October 2013 BRANCH BANKING AND TRUST COMPANY, Plaintiff, v. Wilson County No. 12 CVS 643 JOHN D. BING, JR. and ARVELLA B. BING, Defendants. Appeal by defendant from order entered 8 October 2012 by Judge Quentin T. Sumner in Wilson County Superior Court. Heard in the Court of Appeals 5 June 2013. Poyner Spruill LLP, by James S. Livermon, III and Richard A. Prosser, for plaintiff-appellee. Narron & Holdford, P.A., by I. Joe Ivey, for defendantappellant Arvella B. Bing. GEER, Judge. Defendant Arvella B. Bing appeals from the trial court's order granting summary judgment to plaintiff Branch Banking and Trust Company promissory argues note that ("BB&T") and she, on BB&T's guarantee rather than claim agreement. BB&T, was to recover Although entitled to on Ms. a Bing summary -2judgment action because was the filed admissible outside evidence of the showed applicable that BB&T's statute of limitations period, we hold that BB&T presented uncontradicted evidence demonstrating that its action was timely filed. Because Ms. Bing makes no further arguments on appeal, we affirm the trial court's order. Facts On 14 April 2005, defendant John D. Bing, Jr. executed a promissory note in favor of BB&T in the principal amount of $803,500.00. The note provided for monthly payments of interest beginning 14 on May 2005 and further provided for a final payment of the principal and of any remaining interest owed on 14 April 2007. The note indicated that it was secured by a single deed of trust on four pieces of property owned by Mr. and Ms. Bing. Only Mr. Bing signed the note as the "[b]orrower." Ms. Bing signed a "GUARANTY AGREEMENT" dated 14 April 2005, stating that she "unconditionally guarantee[d] to [BB&T] . . . payment of any and all notes, drafts, debts, obligations and liabilities, primary or secondary . . . of [Mr. Bing], at any time, now or hereafter, incurred with or held by [BB&T], together with interest, as and when the same become due and payable, whether by acceleration or otherwise," pursuant to the terms of those notes, "including all renewals, extensions and -3modifications thereof." The guaranty further indicated that it was "unlimited and applie[d] to all indebtedness of [Mr. Bing], whether now existing or hereafter arising." On 13 April 2012, BB&T filed suit against Mr. and Ms. Bing to enforce the promissory note and guaranty agreement. BB&T's verified complaint alleged that Mr. Bing had defaulted on the terms and conditions regarding payment of the note, and BB&T had accelerated the balance due. The complaint further stated: "As of March 21, 2012, the balance due on the Note is $322,821.51, with interest continuing to accrue at the current rate of $45.38 per diem from March 21, 2012 until the date of judgment and thereafter at the legal rate until satisfied." The complaint alleged Mr. and Ms. Bing were jointly and severally liable to BB&T in the amount of the balance plus interest. The verified complaint attached the original note executed by Mr. Bing and the guaranty agreement executed by Ms. Bing. On 13 June 2012, Ms. Bing filed an unverified answer and motion to dismiss substantially denying the allegations of the complaint and asserting that the applicable statute of limitations. action was barred by the BB&T filed a motion for summary judgment on 20 July 2012. On 28 August 2012, Ms. Bing filed an affidavit in which she admitted signing the guaranty agreement, asserted that the note -4attached to BB&T's complaint was payable in full on 14 April 2007, and asserted that "[a]t no time after April 14, 2007 has [Ms. Bing] entered into any agreement with [BB&T] to extend or modify her obligation pursuant to the terms of Exhibit B, the Guaranty Agreement attached to [BB&T's] Complaint." Ms. Bing's affidavit further stated that BB&T's complaint was filed on 13 April 2012, "more than 3 years after [Ms. Bing's] obligation to [BB&T] ended." On 31 August 2012, BB&T filed the affidavit of Knox B. McMasters, Jr., a vice president. In his affidavit, Mr. McMasters asserted that he had reviewed BB&T's records and that "[BB&T] is the holder of a Promissory Note, BB&T Loan No. xxxxxx1007, Note No. 00002, formerly Note 00001 (the 'Note'), executed on behalf of [Mr. Bing] on or about April 14, 2005 in the original principal amount of $803,500.00, a copy of which is attached to [BB&T's] Complaint as Exhibit 'A' . . . ." He further stated that Ms. Bing had executed a guaranty agreement providing that she "unconditionally guaranteed payment of all present and future indebtedness of [Mr. Bing] to BB&T, including the obligation under the Note." Mr. McMasters' affidavit explained that Mr. Bing "failed to make payment in accordance with the terms and conditions of the Note, constituting an event -5of default under the Note[,]" and "[t]he date of default under the Note was 11/26/11." On 8 October 2012, the trial court entered an order granting BB&T's motion for summary judgment against Mr. and Ms. Bing and ordering that Mr. and Ms. Bing were "jointly and severally indebted to [BB&T] in the amount of $322,821.51 on the Note, plus interest continuing to accrue at the rate of $45.38 per diem from March 21, 2012 until the entry of Judgment and thereafter at the legal rate, plus costs and attorney's fees in the amount of $48,423.23, which constitutes fifteen (15%) of the outstanding indebtedness on the Note." percent Ms. Bing timely appealed to this Court.1 Discussion Ms. Bing argues that the trial court erred in entering summary judgment complaint, the in favor attached of BB&T promissory because note, BB&T's and verified Ms. Bing's affidavit establish that BB&T's action was filed outside of the applicable statute of limitations, and Ms. Bing was, therefore, entitled 1 to entry of summary judgment in her favor. "Our Although Ms. Bing's notice of appeal states that both Mr. and Ms. Bing appealed the summary judgment order, Ms. Bing's brief, filed by the same law firm that represented Mr. and Ms. Bing in the trial court, states that Mr. Bing "has not seen fit to pursue any of the issues arising out of the filing of th[e] Notice Of Appeal; and, therefore, the only issues raised in this Appeal relate to the Defendant, Arvella B. Bing . . . ." -6standard of review of an appeal from summary judgment is de novo; such judgment is appropriate only when the record shows 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.'" In re Will of Jones, 362 N.C. 569, 573, 669 S.E.2d 572, 576 (2008) (quoting Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007)). We initially observe that Ms. Bing does not appear to argue that genuine issues of material fact exist precluding summary judgment. Rather, she argues that based on the record, the trial court should have entered summary judgment in her favor, which is permitted under N.C.R. Civ. P. 56(c) (providing that, when appropriate, summary judgment "may be rendered against the moving party"). The parties agree that the guaranty agreement executed by Ms. Bing constituted a suretyship contract and that the applicable statute of limitations required BB&T to bring this action within three underlying note. years of the alleged default See N.C. Gen. Stat. ยง 1-52 (2011). on the Therefore, for BB&T's action to be timely, the date of default must have been within the three years complaint on 13 April 2012. prior to the filing of BB&T's -7Mr. McMasters' affidavit asserted default under the Note was 11/26/11." that "[t]he date of Absent other evidence of a date of default, Mr. McMasters' affidavit established that BB&T's action was filed within the statute of limitations period. Ms. Bing argues, however, that the date of default provided in Mr. McMasters' affidavit "contradicts the written terms of the Promissory Note which establishes the date of maturity (and thus the date of default) as April 14, 2007." Given this purported contradiction, Ms. Bing contends that the trial court "could not consider [Mr. McMasters'] Affidavit as to the 'date of default'" because doing so would violate the parole evidence rule. However, Ms. Bing did not make her parole evidence argument to the trial court, and, as this Court emphasized in another appeal from a summary judgment order, "'[o]ur Supreme Court has long held that where a theory argued on appeal was not raised before the trial court, the law does not permit parties to swap horses between courts in order to get a better mount in the appellate courts.'" Piraino Bros., LLC v. Atl. Fin. Grp., Inc., 211 N.C. App. 343, 348, 712 S.E.2d 328, 332 (quoting State v. Holliman, (2002)), (2011). disc. 155 N.C. review App. denied, 120, 365 123, 573 N.C. 357, S.E.2d 718 682, 685 S.E.2d 391 -8Ms. Bing further argues: "[I]t is clear there could be no 'date of default' on 11/26/11 based on the verified Complaint and the attached exhibits because on the date of maturity (4/15/07) John Bing had either paid his obligation in full (and thus no lawsuit) or he had failed to do so as of the 'date of maturity' (4/15/07) which was the only basis for the filing of" BB&T's lawsuit. assertion that However, this argument hinges on Ms. Bing's "there were no extensions, modifications or renewals by BB&T with regard to John Bing's obligation." In support of modifications, or her claim that there renewals of the were no extensions, promissory note, Ms. Bing points only to the fact that neither BB&T's verified complaint2 nor Mr. McMasters' affidavit expressly asserted that the note was extended, modified, or renewed. Nevertheless, Mr. McMaster's affidavit stated that "[t]he date of default under the Note was 11/26/11." This assertion is not inconsistent with the promissory note. The promissory note provided: "From time to time the maturity date of this Note may be extended, or this Note may be renewed in whole or in part, or a new note of different form may 2 BB&T's verified complaint is properly considered as an affidavit since it was made based upon personal knowledge, set forth facts that would be admissible in evidence, and showed affirmatively that the affiant was competent to testify to the matters stated in the complaint. Wilson v. Wilson, 191 N.C. App. 789, 795, 666 S.E.2d 653, 656 (2008). -9be substituted for this Note . . .; but no such occurrence shall in any manner affect, limit, modify, or otherwise impair any rights, guaranties or security of the holder not specifically waived, released, undersigned [Mr. or surrendered Bing], or any in writing, obligor, nor either shall primarily the or contingently, be released by reason of the occurrence of any such event." Thus, the promissory note provided that it could be extended, modified, or renewed, and, therefore, Mr. Bing's date of default could occur after the original date of maturity of the original promissory note, 14 April 2007, as Mr. McMasters' affidavit stated.3 In addition, BB&T's verified complaint asserted that Mr. Bing "defaulted on the terms and conditions regarding payment of the Note, and [BB&T] "acceleration" is maturity so date immediately." stating that accelerated "[t]he advancing payment a agreement's loan entire By balance due, debt An Black's Law Dictionary 12 (9th ed. 2009). the the due." due accelerated of of balance is BB&T that the the verified complaint necessarily asserted that the loan's maturity date was subsequent to the date of default -- and, therefore, subsequent 3 We also note that an extension or renewal was also suggested by the statement in Mr. McMasters' affidavit that the note currently held by BB&T was "BB&T Loan No. xxxxxx1007, Note No. 00002, formerly Note 00001." -10to 26 November 2011 -- since otherwise, there would have been no need to accelerate the balance due. Given Mr. complaint, Ms. McMaster's Bing, in affidavit order to and avoid BB&T's entry verified of summary judgment, was required to present evidence to counter BB&T's affidavit showing that the date of default was 26 November 2011. Apart from Ms. Bing's reliance on the promissory note, which did not preclude a 26 November 2011 default date, Ms. Bing presented no other evidence that Mr. Bing necessarily defaulted on the note prior to 13 April 2009, as required for BB&T's claims to be barred by the statute of limitations. Alternatively, Ms. Bing points to the statement in her affidavit that she never agreed to extend her obligation under the guaranty agreement. Under the terms of her guaranty agreement, however, she was liable to BB&T for all of Mr. Bing's liabilities arising. to BB&T, whether then existing or thereafter As a result, the fact that she never extended or modified her obligation is immaterial to the question whether Mr. Bing's note was extended, modified, or renewed and whether BB&T's lawsuit was timely filed. Ms. Bing has, therefore, made no showing that BB&T's action on her guaranty was barred by the statute of limitations. Since Ms. Bing points to no evidence contradicting the affirmative -11statement in Mr. McMasters' affidavit that Mr. Bing defaulted on the note on 26 November 2011, Ms. Bing has failed to show the existence of a genuine issue of material fact as to the date of default, much less evidence judgment in her favor. sufficient to mandate summary Consequently, we hold the trial court properly granted summary judgment in favor of BB&T. Affirmed. Judges ROBERT C. HUNTER and McCULLOUGH concur. Report per Rule 30(e).
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