Sfreddo v. Hicks ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1010
Filed: 18 June 2019
Wake County, No. 15 CVD 12077
SARAH ELIZABETH SFREDDO, Plaintiff
v.
JACOB MICHAEL HICKS, Defendant.
Appeal by plaintiff from orders entered 12 December 2017 and 19 April 2018
by Judge Debra Sasser in District Court, Wake County. Heard in the Court of
Appeals 27 March 2019.
Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney,
Andrea Bosquez-Porter and Zachary K. Dunn, for plaintiff-appellant.
Wake Family Law Group, by Helen M. O’Shaughnessy and Katherine
Hardersen King, for defendant-appellee.
STROUD, Judge.
Plaintiff-wife appeals an order granting summary judgment and dismissing
her complaint and order denying her Rule 59 motion. Although the trial court titled
the order as a summary judgment order, because the trial court conducted a bench
trial and entered a final order dismissing Wife’s case based upon findings of fact and
conclusions of law, we consider the order based upon its substance and not its title.
Because defendant-husband made no allegation or showing that he and Wife did not
actually sign the Agreement in the presence of the notary public and no showing of
any other irregularity in the acknowledgement of the separation agreement by the
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Opinion of the Court
notary public, Husband failed to rebut the presumption of regularity of the
acknowledgement established by North Carolina General Statute § 10B-99. Both the
Agreement itself and Wife’s testimony indicated that the Agreement was properly
acknowledged in the presence of the notary under North Carolina General Statute §
10B-3(1), so the trial court erred by finding that “[n]o evidence was presented that
the separation agreement and property settlement was signed in the presence of the
notary or that the parties acknowledged to the notary that they had signed the
agreement” and concluding that the Agreement was “not a valid contract” because it
was not properly acknowledged under North Carolina General Statute §§ 52-10 and
10B-3. We reverse and remand for further proceedings consistent with this opinion.
I. Background
In September of 2015, wife filed a complaint against husband for breach of
contract, specific performance, and attorney’s fees, alleging that he had failed to
perform his obligations under a separation and property settlement agreement
(“Agreement”) between the two of them. On 5 November 2015, Husband filed his
answer and affirmative defenses; he denied many of the factual allegations of the
complaint and raised affirmative defenses as follows:
As defenses to any claims Plaintiff may have,
Defendant asserts the following affirmative defenses:
estoppel, waiver, duress, unconscionability and unclean
hands. In addition, the Separation Agreement that is the
subject of Plaintiff’s action is VOID because the agreement
was not properly acknowledged as required by N.C. Gen.
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Stat. § 52-10.1.1
On 23 May 2017, Husband filed a motion to dismiss for failure to prosecute, and the
trial court denied the motion on or about 12 October 2017, noting that the Trial Court
Administrator had set the case for trial on 25 October 2017.
On 25 October 2017, the case came on for hearing, and the trial court
announced it would first consider Husband’s motion to dismiss based upon the
affirmative defense in his answer of a “procedural defect in the parties’ separation[.]”
Husband’s attorney gave the trial court a copy of North Carolina General Statute §
52-10.1 regarding acknowledgment of separation agreements and presented
Husband’s argument regarding the defects in the acknowledgement of the
Agreement. Husband’s counsel argued that based upon the wording of the notarial
certificate on the Agreement, “there was no indication that the notary has personal
knowledge of the identity of the principal or that the notary acknowledged that the
signature was the individual’s signature.”
Wife, who was representing herself, then began to present her argument, but
the trial court placed her under oath to testify. The trial court then conducted a direct
examination of Wife regarding the execution and acknowledgement of the Agreement.
1 “Any married couple is hereby authorized to execute a separation agreement not inconsistent with
public policy which shall be legal, valid, and binding in all respects; provided, that the separation
agreement must be in writing and acknowledged by both parties before a certifying officer as defined
in G.S. 52-10(b). Such certifying officer must not be a party to the contract.” N.C. Gen. Stat. § 52-10.1
(2017). A notary public is one of the certifying officers designated by North Carolina General Statute
§ 52-10. See N.C. Gen. Stat. § 52-10 (2017).
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Husband’s counsel had no questions and did not tender any evidence. The trial court
then announced that the case would be treated “very much akin to a motion for
summary judgment” and announced that it would grant summary judgment for
Husband, dismissing the case. The trial court stated that Husband had “rebutted
the presumption of the validity” of the acknowledgement and that Wife’s “evidence
wasn’t sufficient to show me that all the prerequisites of the acknowledgement were
met.”
On 12 December 2017, the trial court entered its order which was entitled
“ORDER FOR SUMMARY JUDGMENT[.]” The order stated that because the court
was considering matters outside of the pleadings it was converting the hearing on
the motion to dismiss to a summary judgment hearing, but it also made findings of
fact and conclusions of law and granted summary judgment for Husband, dismissing
Wife’s complaint. On 28 December 2017, Wife filed a Rule 59 motion for amendment
of the judgment or alternatively for a new trial. On 19 April 2018, the trial court
denied the Rule 59 motion. On 18 May 2018, Wife appealed both the summary
judgment and Rule 59 orders.
II. Timeliness of Appeal
Husband contends this Court has no jurisdiction to review the summary
judgment order because Wife’s notice of appeal for the summary judgment order was
not timely filed. But despite the title of the order, as explained further below, Wife
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actually appealed a final order on the merits, with findings of fact, entered after a
bench trial. See generally Edwards v. Edwards, 42 N.C. App. 301, 307, 256 S.E.2d
728, 732 (1979) (“Examination of the record reveals, however, that although plaintiff
moved for a summary judgment and the court at one point seemed to indicate that it
was allowing the motion, what actually occurred was that the court heard the
testimony of witnesses, who were subject to cross-examination by defendant’s
counsel, and after hearing this evidence and on the basis thereof, the court found the
facts as required by G.S. 50-10. Thus, the judgment entered in this case was not a
summary judgment but was one rendered by the court after making appropriate
findings of fact.”).
In this case, the analysis of the distinction between a summary judgment order
and a final order following a bench trial is necessary to determine the applicability of
Rule 59. See generally Tetra Tech Tesoro, Inc. v. JAAAT Tech. Servs., LLC, ___ N.C.
App. ___, ___, 794 S.E.2d 535, 538 (2016) (“All of the enumerated grounds in Rule
59(a), and the concluding text addressing an action tried without a jury, indicate that
this rule applies only after a trial on the merits or, at a minimum, a judgment ending
a case on the merits.” (quotation marks omitted)). Because this was a trial on the
merits upon which a final judgment was entered, despite the title of the order and
the trial court’s intent to consider the case as “akin to a motion for summary
judgment,” Wife’s Rule 59 motion tolled the time for appeal of the trial court’s order
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dismissing her case. See id; N.C. R. App. P. 3(c) (“In civil actions and special
proceedings, a party must file and serve a notice of appeal . . . within thirty days
after entry of judgment if the party has been served with a copy of the judgment
within the three-day period prescribed by Rule 58 of the Rules of Civil Procedure; or
. . . if a timely motion is made by any party for relief under Rules 50(b), 52(b) or 59 of
the Rules of Civil Procedure, the thirty-day period for taking appeal is tolled as to all
parties until entry of an order disposing of the motion and then runs as to each party
from the date of entry of the order or its untimely service upon the party, as provided
in subdivisions (1) and (2) of this subsection (c).”)
A. Type of Order on Appeal
This appeal is complicated by the trial court’s sua sponte designation of the
proceeding as a summary judgment hearing and by the order entered after the
hearing designated as a summary judgment order, despite having conducted a bench
trial taking live testimony, and making findings of fact. Since the trial court’s
standards for deciding the case, the applicability of Rule 59, and our standards of
review are dictated by the substance of the motion under consideration and the type
of hearing conducted, where the wrong title is assigned to the hearing and order, we
still must consider the issues under the correct standards and law. See generally
Westmoreland v. High Point Healthcare Inc., 218 N.C. App. 76, 79, 721 S.E.2d 712,
716 (2012) (noting substance, not “labels,” determines our review). We review an
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order based upon substance and not upon the label or title the trial court assigns to
it. See id. The trial court conducted a bench trial, not a summary judgment hearing,
and we make this determination based upon several factors: (1) Neither party had
filed a motion for summary judgment and neither had filed any affidavits or other
evidence which could support a ruling on summary judgment; (2) neither party
expected or requested a summary judgment hearing; the trial court determined sua
sponte to treat Husband’s motion to dismiss as a summary judgment motion; and (3)
the trial court made findings of fact, “and summary judgment presupposes that there
are no triable issues of material fact.” Hodges v. Moore, 205 N.C. App. 722, 723, 697
S.E.2d 406, 407 (2010) (citations and quotation marks omitted); see also War Eagle,
Inc. v. Belair, 204 N.C. App. 548, 552, 694 S.E.2d 497, 500 (2010) (“By making
findings of fact on summary judgment, the trial court demonstrates to the appellate
courts a fundamental lack of understanding of the nature of summary judgment
proceedings. We understand that a number of trial judges feel compelled to make
findings of fact reciting those ‘uncontested facts’ that form the basis of their decision.
When this is done, any findings should clearly be denominated as ‘uncontested facts’
and not as a resolution of contested facts. In the instant case, there was no statement
that any of the findings were of ‘uncontested facts.’”).
Although the trial court treated the case as if Husband had “rebutted the
presumption of the validity” of the acknowledgement, he had not filed any affidavit
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or response sufficient to rebut the presumption but only denied validity of the
Agreement in his answer:
A party moving for summary judgment may prevail
if it meets the burden (1) of proving an essential element of
the opposing party’s claim is nonexistent, or (2) of showing
through discovery that the opposing party cannot produce
evidence to support an essential element of his or her
claim. Generally this means that on undisputed aspects of
the opposing evidential forecast, where there is no genuine
issue of fact, the moving party is entitled to judgment as a
matter of law. If the moving party meets this burden, the
non-moving party must in turn either show that a genuine
issue of material fact exists for trial or must provide an
excuse for not doing so. If the moving party fails to meet his
burden, summary judgment is improper regardless of
whether the opponent responds. The goal of this procedural
device is to allow penetration of an unfounded claim or
defense before trial.
If the moving party satisfies its burden of proof, then
the burden shifts to the non-moving party to set forth
specific facts showing that there is a genuine issue for trial.
The non-moving party may not rest upon the mere
allegations of his pleadings.
Subsection (e) of Rule 56 does not shift the burden of
proof at the hearing on motion for summary judgment. The
moving party still has the burden of proving that no genuine
issue of material fact exists in the case. However, when the
moving party by affidavit or otherwise presents materials
in support of his motion, it becomes incumbent upon the
opposing party to take affirmative steps to defend his
position by proof of his own. If he rests upon the mere
allegations or denial of his pleading, he does so at the risk
of having judgment entered against him. The opposing
party need not convince the court that he would prevail on
a triable issue of material fact but only that the issue
exists. However, subsection (e) of Rule 56 precludes any
party from prevailing against a motion for summary
judgment through reliance on conclusory allegations
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unsupported by facts.
Lowe v. Bradford, 305 N.C. 366, 369–70, 289 S.E.2d 363, 366 (1982) (emphasis added)
(citations and quotation marks omitted).
Here, the trial court treated Husband as the “moving party” for purposes of
summary judgment, but he never met his “burden of proving that no genuine issue of
material fact exists in the case.” Id. at 370, 289 S.E.2d at 366. Husband did not file
an affidavit or present any evidence, which is unsurprising since he did not move for
summary judgment. Despite the lack of any showing from Husband that he may be
entitled to summary judgment, the trial court reasoned that Husband had “rebutted”
the presumption of regularity and required Wife to testify to present evidence in
response to Husband’s mere denial. In Hill v. Durett, Judge (now Justice) Davis noted
the differences between a summary judgment hearing and a bench trial upon the
substance of the hearing and order, despite confusion over the type of hearing before
the trial court, noting,
We take this opportunity to remind the bench and
bar that summary judgments and trials are separate and
distinct proceedings that apply in different circumstances
under our Rules of Civil Procedure, and the meaningful
distinctions that exist between them should not be blurred.
While we recognize that family law cases under Chapter 50
often require the presiding judge to serve as the finder of
fact, the North Carolina Rules of Civil Procedure remain
applicable to such cases absent the existence of statutes
establishing a different procedure.
___ N.C. App. ___, ___, ___S.E.2d ___, ___ (COA18-515) (March 19, 2019) (footnote
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omitted).
Even if the trial court, as it stated, was considering the matter as a motion for
summary judgment, it should have considered Wife’s testimony as true and construed
it in the light most favorable to her, not to Husband. Trillium Ridge Condo. Ass’n,
Inc. v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 487, 764 S.E.2d 203, 210 (2014)
(“Both before the trial court and on appeal, the evidence must be viewed in the light
most favorable to the nonmoving party and all inferences from that evidence must be
drawn against the moving party and in favor of the non-moving party.” (citation and
quotation marks omitted)). Only if there was no genuine issue of material fact based
upon the view of Wife’s evidence in the light most favorable to her, see id., could
Husband be entitled to judgment as a matter of law, assuming the law supported his
position. See Lowe, 305 N.C. at 369–70, 289 S.E.2d at 366. Instead, here, the trial
court made findings of fact considering Wife’s testimony in the light most favorable
to Husband.
The trial court found, “No evidence was presented that the separation
agreement and property settlement was signed in the presence of the notary or that
the parties acknowledged to the notary that they had signed the agreement.” But the
Agreement itself indicates that the parties signed in the presence of the notary, and
Wife testified that she and Husband signed in the presence of the notary. Since the
hearing had “virtually all of the hallmarks” of a bench trial, we consider the trial
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court’s order as a final judgment following a bench trial, despite its label from the
trial court. See Hill, ___ N.C. App. at ___, ___ S.E.2d at ___.
B. Rule 59 Motion and Tolling of Time for Appeal
In addition, the Rule 59 motion must be a proper Rule 59 motion to toll the
time for appeal. See generally Batlle v. Sabates, 198 N.C. App. 407, 413–14, 681
S.E.2d 788, 793–94 (2009). Wife moved for a new trial pursuant to Rule 59(a)(7) and
(8) or for amendment of judgment under rule 59(e):
If a timely motion is made by any party for
relief under Rules 50(b), 52(b) or 59 of the
Rules of Civil Procedure, the 30–day period
for taking appeal is tolled as to all parties
until entry of an order disposing of the motion
and then runs as to each party from the date
of entry of the order.
As a result, the timeliness of Plaintiff's appeal from the 21
September 2007 order hinges upon whether Plaintiff's 5
October 2007 motion sufficiently invoked the provisions of
N.C. Gen.Stat. § 1A–1, Rules 50(b), 52(b), or 59.
In analyzing the sufficiency of a motion made
pursuant to N.C. Gen.Stat. § 1A–1, Rule 59, one should
keep in mind that a failure to give the number of the rule
under which a motion is made is not necessarily fatal, if the
grounds for the motion and the relief sought is consistent
with the Rules of Civil Procedure. As long as the face of
the motion reveals, and the Clerk and the parties clearly
understand, the relief sought and the grounds asserted and
as long as an opponent is not prejudiced, a motion complies
with the requirements of N.C. Gen.Stat. § 1A–1, Rule
7(b)(1). In other words, to satisfy the requirements of Rule
7(b)(1), the motion must supply information revealing the
basis of the motion. However, while a request that the trial
court reconsider its earlier decision “granting the sanction”
may properly be treated as a Rule 59(e) motion,” a motion
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made pursuant to N.C. Gen. Stat. § 1A–1, Rule 59, cannot
be used as a means to reargue matters already argued or
to put forward arguments which were not made but could
have been made. Thus, in order to properly address the
issues raised by Defendant’s dismissal motion, we must
examine the allegations in Plaintiff's motion to ascertain
whether Plaintiff stated a valid basis for seeking to obtain
relief pursuant to N.C. Gen. Stat. § 1A–1, Rule 59.
Id. (citations, quotation marks, brackets, and footnote omitted).
Thus, if at least one of the grounds asserted in Wife’s Rule 59 motion is a proper
basis for new trial under Rule 59, the motion tolls the time for appeal.
N.C. Gen. Stat. Sec. 1A–1, Rule 59(a) sets forth
the various grounds for a new trial. Rule 59(a)(8) permits a
new trial for errors in law occurring at the trial and
objected to by the party making the motion. The trial
court’s ground for the new trial — for errors committed by
the Court — is an order under Rule 59(a)(8).
Both a motion and an order for new trial filed under
Rule 59(a)(8) have two basic requirements. First, the errors
to which the trial judge refers must be specifically stated.
Second, the moving party must have objected to the error
which is assigned as the basis for the new trial. N.C. Gen.
Stat. 1A–1, Rule 59(a)(8).
Barnett v. Security Ins. Co. of Hartford, 84 N.C. App. 376, 380, 352 S.E.2d 855, 858
(1987) (citations and quotation marks omitted).
Wife’s motion noted that the trial court’s order found that “[n]o evidence was
presented that the separation agreement and property settlement was signed in the
presence of the notary[.]” Wife’s motion included quotes from a transcription of the
testimony at the hearing, including her testimony about going before the notary,
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providing identification, and signing the Agreement. Wife’s motion noted the trial
court’s comments at the hearing:
Judge: I don’t recall you saying that after she looked
at the document that she had you all then sign it.
Plaintiff: I did say that.
Judge. You may have thought you said that. I don’t
recall you saying that. What I recall you saying was that
she looked at the licenses she looked at the names on the
document. And I said, well you know you can’t tell me what
she looked at, but that’s what you said. And I don’t’ recall
you saying that after that’s when you signed the
documents. I don’t remember that testimony at all.
(Quotation marks omitted.)
But the transcript shows that Wife did testify that they signed the document
after the notary looked at their licenses; the trial court’s recollection was incorrect.
Of course, at the initial hearing, the trial court did not have the benefit of a transcript.
In Wife’s Rule 59 motion, Wife noted why the evidence was insufficient to support the
trial court’s finding there was “[n]o evidence” of signing before the notary, including
the transcription of testimony, and the error of law in application of North Carolina
General Statute § 10B-3 to the Agreement. Wife preserved these arguments before
the trial court because she noted both her testimony and the correct law, as stated in
Moore v. Moore, 108 N.C. App. 656, 424 S.E.2d 673, aff’d per curiam, 334 N.C. 684,
435 S.E.2d 71 (1993), at the hearing. Wife’s appeal was timely, since the order
dismissing Wife’s complaint was a final order from a bench trial which resolved all
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issues, and her Rule 59 motion was a proper motion which tolled the time for her
appeal.2
Wife filed her notice of appeal of both orders within thirty days of the trial
court’s order denying her Rule 59 motion, so her appeal of both orders is timely. See
id.
III. Acknowledgment of Agreement
Due to the erroneous label by the trial court as a summary judgment order,
Wife’s brief substantively focuses on the law regarding acknowledgement of the
Agreement and why summary judgment dismissing the case was inappropriate.
Husband’s brief focuses only on the timeliness of the appeal. Husband notes that he
“believes that [Wife’s] analysis regarding summary judgment is correct” but argues
only that “a motion under Rule 59 was not the appropriate way for [Wife] to challenge
the order granting summary judgment.” Thus Husband tacitly concedes that the trial
court’s interpretation of the law regarding the acknowledgment of the Agreement was
in error. Therefore, the central legal issue presented is whether the trial court erred
in concluding the Agreement was void based upon lack of proper acknowledgement
under North Carolina General Statute §§ 52-10 and 10B-3.
A. Standard of Review
2 In the hearing on the Rule 59 motion, the trial court did not consider Wife’s substantive argument
but denied the Rule 59 motion solely because the judgment “ended the case at the summary judgment
state and not after a trial or a verdict” and Rule 59 “does not grant relief for summary judgment[.]”
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Because the order on appeal is a final order from a bench trial, despite its label
as a summary judgment order, our standard of review
[i]n a bench trial in which the . . . court sits without
a jury, the standard of review is whether there was
competent evidence to support the trial court’s findings of
fact and whether its conclusions of law were proper in light
of such facts. Findings of fact by the trial court in a non-
jury trial are conclusive on appeal if there is evidence to
support those findings. A trial court’s conclusions of law,
however, are reviewable de novo.
Hinnant v. Philips, 184 N.C. App. 241, 245, 645 S.E.2d 867, 870 (2007) (citation,
quotation marks, and ellipses omitted). The finding of fact challenged here is “[n]o
evidence was presented that the separation agreement and property settlement was
signed in the presence of the notary or that the parties acknowledged to the notary
that they had signed the agreement.” The challenged conclusion of law is that “[t]he
Separation Agreement and Property Settlement is not a valid contract because it was
not properly acknowledged.”
B. Presumption of Regularity of Notarial Acts
We first note the cases and statutes governing notarial acts3 and the
presumption of regularity of notarial acts:
In the absence of evidence of fraud on the part of the
notary, or evidence of a knowing and deliberate violation,
3 “Notarial act, notary act, and notarization. -- The act of taking an acknowledgment, taking a
verification or proof or administering an oath or affirmation that a notary is empowered to perform
under G.S. 10B-20(a).” N.C. Gen. Stat. § 10B-3(11) (2017).
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we recognize a presumption of regularity to notarial acts.
N.C. Gen. Stat. § 10B–99 (2013). This presumption of
regularity allows notarial acts to be upheld, provided there
has been substantial compliance with the law. N.C. Gen.
Stat. § 10B–99. Thus, the presumption of regularity acts
to impute a substantial compliance component to notarial
acts, including the administration of oaths.
In re Adoption of Baby Boy, 233 N.C. App. 493, 499–505, 757 S.E.2d 343, 347-50
(2014) (quotation marks omitted) (determining there was statutory compliance with
administration of an oath where “[t]he notary was physically present when the oath
was administered, aware of the circumstances, and thereby implicitly assented to its
administration, which was done in her name. By these facts, it sufficiently appears
that the administration of the oath was the act of the notary.”). As there was no
“evidence of fraud on the part of the notary, or evidence of a knowing and deliberate
violation” and Husband never claimed that he did not sign the Agreement in the
present of the notary, the Agreement itself should at the very least been accorded a
presumption of regularity, and this would preclude the dismissal of Wife’s complaint.
Id.
North Carolina General Statute § 10B-3 sets forth the definitions applicable to
Chapter 10B. See N.C. Gen. Stat. § 10B-3 (2017). An “acknowledgment” is defined
as:
A notarial act in which a notary certifies that at a single
time and place all of the following occurred:
a. An individual appeared in person before the
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notary and presented a record.
b. The individual was personally known to the
notary or identified by the notary through satisfactory
evidence.
c. The individual did either of the following:
i. Indicated to the notary that the
signature on the record was the individual’s signature.
ii. Signed the record while in the physical
presence of the notary and while being personally observed
signing the record by the notary.
N.C. Gen. Stat. § 10B-3(1). The portion of the document in question here is the
“notarial certificate” or “certificate,” defined as
[t]he portion of a notarized record that is completed by the
notary, bears the notary’s signature and seal, and states
the facts attested by the notary in a particular
notarization.
N.C. Gen. Stat. § 10B-3(12).
Before the trial court, Husband’s attorney argued that the notarial certificate
was not proper because North Carolina General Statute § 10B-3 “section C2 has been
satisfied, but I would say C1 and B have not been satisfied.” Husband did not
challenge the acknowledgment under § 10B-3(1)(a), “[a]n individual appeared in
person before the notary and presented a record[;]” his counsel stated, “[a]rguably,
that’s occurred.” N.C. Gen. Stat. § 10B-3(1)(a). Thus, Husband’s argument was that
the certificate failed because it did not show (1) Husband and Wife were “personally
known to the notary or identified by the notary through satisfactory evidence[;]” and
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(2) they “[i]ndicated to the notary that the signature[s] on the record [were their] . . .
signature[s].”
Here, the certificate on the Agreement reads,
IN WlTNESS WHEREOF, the parties have signed, sealed
and acknowledged this Agreement in duplicate originals,
one of which is retained by each of the parties hereto.
[Husband’s signature] JACOB MICHAEL HICKS
(Husband)
Sworn to and subscribed to before me, this the 14 day of
May, 2009. [Notary seal.]
[Signature of Monica R. Livingston in cursive and print]
(Notary Public)
My commission expires: Nov. 29, 2010
The quoted portion is repeated verbatim again with the Wife’s name and signature.
We first note that North Carolina General Statute § 10B-3(1)(c) requires that
the person signing the document must either “indicate[ ] to the notary that the
signature on the record was the individual’s signature” or “sign[] the record while in
the physical presence of the notary and while being personally observed signing the
record by the notary.” N.C. Gen. Stat. § 10B-3(1)(c). In other words, there is no
requirement to satisfy both “C2” and “C1” as Husband’s counsel seemed to contend.
Husband conceded that the parties had signed in the presence of the notary,
satisfying subsection (c)(2), so there was no need for the acknowledgement to comply
with subsection (c)(1) as well. See N.C. Gen. Stat. § 10B-3(c). Thus, despite
Husband’s counsel’s statements, the only portion of the acknowledgement challenged
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by Husband was “B” that “[t]he individual was personally known to the notary or
identified by the notary through satisfactory evidence.” N.C. Gen. Stat. § 10B-3(1)(b).
The notarial certificate does not include as much detail or the exact wording
as some commonly used forms, but it includes the substance required by North
Carolina General Statute § 10B-3.4 See id. The notary certified that the agreement
was “sworn to and subscribed to before me” by the “parties,” who were identified in
the Agreement as Husband and Wife, on 14 May 2009. To “[s]ubscribe” the
Agreement means to sign it. See Black’s Law Dictionary 1655 (10th ed. 2009) (defining
“subscribe” as “[t]o write (one’s name) underneath; to put (one’s signature) on a
document”). “[B]efore me” means that the parties signed in the presence of the
notary. Further, any minor omissions or issues in the wording of a certificate are
covered by North Carolina General Statute § 10B-40(a1)(1). “By making or giving a
notarial certificate, whether or not stated in the certificate, a notary certifies . . . [a]s
to an acknowledgment, all those things described in G.S. 10B-3(1).” N.C. Gen. Stat.
§10B-40(a1)(1) (2017) (emphasis added). Based upon the certificate on the Agreement
alone, the trial court erred in determining that the acknowledgement of the
Agreement was not sufficient since it failed to consider the statutory presumption of
regularity, especially since Husband never made any factual allegations of
irregularity to rebut the presumption of regularity or contended the signature on the
4 The hearing transcript reflects that Husband’s counsel presented the forms as used in her law office
to the trial court as examples of proper certificates, but those forms are not in our record.
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Opinion of the Court
Agreement was not his. While Husband’s answer included as an affirmative defense
the allegation that the Agreement was void because it “was not properly
acknowledged as required by NCGS 52-10.1[;]”he did not deny that he signed the
Agreement before the notary or make any factual allegations about his claimed defect
in the acknowledgement.
Despite Husband’s failure to present any evidence to rebut the presumption of
regularity of the acknowledgment, the trial court then called Wife to testify about the
signing of the Agreement. Answering the trial court’s questions, Wife testified:
A. We came into the bank. We had to sit down for a
couple of minutes. She called us up. She asked why
we were there, got the information. She asked for
both of our identifications.
She looked through the document.
....
A. Unh-hunh. And she asked for both of us to submit
our licenses to her. She might have made a copy of
those, but she compared those to --
Q. (Interposing) Ma’am, you can’t tell me what you
think she did.
A. OK. OK. She compared those to--
Q. (Interposing) You can’t tell me what you think she did.
A. I know that she compared those to what--
Q. (Interposing) How do you know that, ma’am?
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Opinion of the Court
A. Well, she looked at the document, and she
looked at our licenses, and she looked at what
the names were in the contract.
Q. Ma’am, you can’t tell me what she looked at.
A. Oh. OK.
Q. I mean, you can assume, but I can’t take your
assumptions.
A. Well, she looked our licenses and made sure that
they were us.
Q. Ma’am, I don’t know that I can even take that
testimony.5
A. OK.
Q. You definitely can tell me that she asked for your
licenses and you gave them to her.
A. OK. She asked for our licenses, and we gave them to
her.
Q. And you can’t tell me what she did with--you can’t
tell me what she said. If she said what she was
doing. You can’t tell me what you assume she was
doing.
5North Carolina General Statute § 10B-3(16) defines “[p]ersonal appearance and appear in person
before a notary” as “[a]n individual and a notary are in close physical proximity to one another so that
they may freely see and communicate with one another and exchange records back and forth during
the notarization process.” N.C. Gen. Stat. § 10B-3(16). North Carolina General Statute § 10B-3(22)
defines “[s]atisfactory evidence” as “[i]dentification of an individual based on either of the following: a.
At least one current document issued by a federal, state, or federal or state-recognized tribal
government agency bearing the photographic image of the individual’s face and either the signature
or a physical description of the individual.” N.C. Gen. Stat. § 10B-3(22). Wife’s testimony shows that
she and Husband “appear[e]d in person” before the notary, provided their drivers licenses as
“[s]atisfactory evidence” of their identities and signed the Agreement. N.C. Gen. Stat. § 10B-3(16), (22).
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Opinion of the Court
A. OK. She did ask for our licenses, and we gave them
to her.
Q. OK. And anything else?
A. We had to sign.
(Emphasis added). In summary, Wife testified that she and Husband went to a bank,
presented their drivers licenses and the Agreement to the notary, and signed the
Agreement after the notary had taken their licenses. Despite this evidence, the trial
court found that “No evidence was presented that the separation agreement and
property settlement was signed in the presence of the notary or that the parties
acknowledged to the notary that they had signed the agreement” even though
Husband did not contest that they had signed in the presence of the notary. Further,
the certificate itself stated that the parties had “subscribed” the Agreement “before”
the notary.
And even if we were to treat the matter as a summary judgment motion, the
result would be the same, based upon Moore. In Wife’s argument before the trial
court, Wife noted Moore, which held that the plaintiff husband had failed to rebut the
presumption of regularity of the acknowledgment of a separation agreement despite
his affidavit claiming that the notary was not in the room the entire time the
documents were being signed:
Plaintiff has failed to advance a genuine issue of material
fact which would justify going forward with a trial on the
issue of the validity of the separation agreement.
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Opinion of the Court
Plaintiff’s evidence does not overcome the
presumption of legality of execution created by the
notarization of the separation agreement. North Carolina
recognizes a presumption in favor of the legality of an
acknowledgment of a written instrument by a certifying
officer. To impeach a notary’s certification, there must be
more than a bare allegation that no acknowledgment
occurred. In Skinner, for example, the defendant
challenged the plaintiff's verification of his Rule 11
complaint. This Court stated:
There was no showing that plaintiff did not in
fact sign the verification, and nothing in the
record suggests that the signature which
appears thereon was not in fact his signature.
The certificate to the verification signed by
the notary public and attested by her seal
certifies that the verification was sworn to
and subscribed” before her, and nothing in the
record impeaches that certification.
Here, plaintiff never asserts that the actual signature on the
agreement is other than his own-he suggests only a
technical violation of N.C.Gen.Stat. § 52-10.1. He does not
bring forth sufficient evidence to overcome the presumption
created in favor of the validity of the acknowledgment.
Moore, 108 N.C. App. at 658–59, 424 S.E.2d at 675 (emphasis added) (citations,
quotations, and brackets omitted).
The trial court determined Moore did not support Wife’s contentions,
interjecting, “Well, let’s stop for a second. That’s talking about Plaintiff’s evidence,
alright?” (Emphasis added.) But in Moore, the legal positions of the parties and their
titles as parties were opposite this case: the plaintiff was the “moving party” seeking
to set aside the agreement based upon a defect in the acknowledgment of the
separation agreement, just as defendant is in this case. See id. at 657, 424 S.E.2d
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SFREDDO V. HICKS
Opinion of the Court
at 674 (“Plaintiff-husband, William J. Moore, originally filed a declaratory judgment
action on 18 June 1987 to have a separation agreement entered into with defendant-
wife, Betty Evans Moore, declared null and void on the grounds that the agreement
had not been properly acknowledged in violation of the requirements of N.C. Gen.
Stat. § 52-10.1 and N.C. Gen. Stat. § 52-10(b). Plaintiff claims the agreement violated
these statutory provisions because a notary public did not witness him sign the
agreement, nor did plaintiff acknowledge his signature to the notary. Defendant
denied the invalidity of the agreement and raised affirmative defenses of estoppel,
waiver, and ratification. Defendant counterclaimed for specific performance of the
agreement.” (Emphasis added)). Thus, Wife was correct that Moore supported her
argument: “[Husband’s] evidence does not overcome the presumption of legality of
execution created by the notarization of the separation agreement[,]” id. at 659, 424
S.E.2d at 675, because Husband presented no affidavit and no evidence to rebut the
presumption. There was no showing that Husband did not sign the agreement, and
nothing in the record suggests that the signature which appears on the agreement
was not in fact his signature. The certificate to the verification signed by the notary
public and attested by her seal certifies that the verification was “[s]worn to and
subscribed to before” her, and nothing in the record impeaches that certification.
Even considering the issue as a summary judgment motion, the trial court should
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Opinion of the Court
have denied Husband’s motion based upon his failure to rebut the presumption of
regularity. See id. at 658–59, 424 S.E.2d at 675.
Because Husband presented no evidence to rebut the regularity of the
notarization of the Agreement, and Wife’s evidence, particularly the Agreement itself,
supported the presumption of regularity of the notarization, the trial court erred in
concluding as a matter of law that the Agreement was void because it was not
properly acknowledged. We therefore reverse the trial court’s order dismissing Wife’s
claims based upon the Agreement for this reason.
IV. Conclusion
Because we are reversing the order allowing Husband’s motion to dismiss, we
need not address Wife’s argument regarding the denial of her Rule 59 motion. The
order is reversed and we remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
Judges INMAN and ZACHARY concur.
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