FIA Card Servs., N.A. v. Caviness ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1442
NORTH CAROLINA COURT OF APPEALS
Filed: 20 May 2014
FIA CARD SERVICES, N.A.,
Plaintiff,
v. Wake County
No. 11 CVD 16592
CHRIS CAVINESS,
a/k/a JOHN CHRISTOPHER CAVINESS
Defendant.
Appeal by defendant from order entered 26 April 2013 by
Judge Margaret P. Eagles in Wake County District Court. Heard
in the Court of Appeals 23 April 2014.
Sessoms & Rogers, P.A., by Andrew E. Hoke and Mitchell A.
Meyers, for plaintiff.
Bryant Duke Paris, III, for defendant.
ELMORE, Judge.
Defendant timely appeals from an order entered 26 April
2013 granting plaintiff’s motion for summary judgment. After
careful consideration, we affirm.
I. Facts
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On 31 October 2011, FIA Card Services, N.A. (plaintiff)
filed a complaint against Chris Caviness (defendant) for breach
of contract. In relevant part, plaintiff alleged that:
3. The plaintiff opened a credit account
(hereinafter, “Account”) for the defendant,
at
the request of the defendant and extended
credit to the defendant through the Account.
4. The defendant accepted and used the
credit provided by the plaintiff and
incurred balances due on the Account that
the defendant agreed to repay to the
plaintiff.
5. The defendant is in default of the
agreement to repay to the plaintiff the
credit
provided through the Account, in that said
defendant has failed to make the monthly
payments required as they became due.
6. Pursuant to the agreement, the defendant
is lawfully indebted to the plaintiff in the
sum of $10,150.19. Said sum has been
outstanding since March 31, 2011.
In March 2012, plaintiff filed a motion for summary
judgment pursuant to North Carolina Civil Procedure Rule 56 “on
the grounds that there [were] no genuine issues as to any
material facts, and the Plaintiff [was] entitled to judgment as
a matter of law.” Although plaintiff did not present the actual
credit card agreement as evidence in support of its motion,
plaintiff offered: 1.) copies of monthly billing statements from
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November 2008 through March 2011; 2.) checks made payable to
plaintiff from Caviness Landscaping Company, LLC, Chris Caviness
Landscaping, LLC, defendant (collectively “the Caviness
checks”), and George Klenke; and 3.) the affidavit of Raven
McRae, an authorized representative of plaintiff. Defendant did
not file a written response, submit affidavits, or offer any
other supporting materials to combat plaintiff’s motion.
II. Analysis
a.) Plaintiff’s Supporting Documents
Defendant argues that the trial court erred in granting
plaintiff’s motion for summary judgment because plaintiff’s
supporting documents were contradictory and Ms. McRae’s
affidavit was inherently suspect. We disagree.
“Our standard 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, 523-24, 649
S.E.2d 382, 385 (2007)). We must consider “the pleadings,
affidavits and discovery materials available in the light most
favorable to the non-moving party[.]” Pine Knoll Ass'n, Inc. v.
Cardon, 126 N.C. App. 155, 158, 484 S.E.2d 446, 448 (1997)
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(citations omitted). The movant has the burden to establish
that no genuine issue of material fact exists, and “the non-
movant only has to refute any showing that his case is fatally
deficient.” Broyhill v. Aycock & Spence, 102 N.C. App. 382,
389, 402 S.E.2d 167, 172 aff'd, 330 N.C. 438, 410 S.E.2d 392(1991 (citation omitted). Even if a party fails to respond to
an opponent’s motion for summary judgment, the motion should be
denied if “the movant’s supporting evidence is self
contradictory or circumstantially suspicious or the credibility
of a witness is inherently suspect either because he is
interested in the outcome of the case [or] the facts are
peculiarly within his knowledge[.]” Kidd v. Early, 289 N.C.
343, 366, 222 S.E.2d 392, 408 (1976).
We first address defendant’s contention that the payments
to plaintiff by the Caviness checks and George Klenke contradict
plaintiff’s allegation that a contract existed between itself
and defendant. Each Caviness check lists the payer’s address as
6649 Mafolie Court, Raleigh, N.C. 27613. This same address
appears on defendant’s account statements from November 2008
until August 2009. Although one of the Caviness checks predates
the account statements, the remaining four checks match payments
indicated on the account statements: Chris Caviness Landscaping,
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LLC on 3 November 2008 in the amount of $300, Chris Caviness
Landscaping, LLC on 25 November 2008 in the amount of $400,
Chris Caviness Landscaping, LLC on 15 April 2009 in the amount
of $324, and Chris Caviness on 30 November 2009 in the amount of
$220. While it is unclear why plaintiff’s supporting documents
contain a check from Klenke to plaintiff, the check bears no
weight in our analysis of whether a contract existed between
plaintiff and defendant, especially in light of the Caviness
checks. Thus, plaintiff’s supporting evidence is not self-
contradictory. To the contrary, the Caviness checks provide
further support for plaintiff’s claim against defendant.
As to Ms. McRae, defendant argues that because she is
plaintiff’s employee, she is “interested in obtaining a
favorable result for [plaintiff][.] . . . As such, McRae’s
[a]ffidavit is inherently suspect.” However, the fact that she
may be an interested witness, standing alone, is insufficient to
raise a genuine issue of material fact as to plaintiff’s claim.
See id. at 371, 222 S.E.2d at 411 (ruling that an affidavit of
an interested party merely creates “latent doubts” of
credibility, which have “little, if any, significance” unless
the opposing party produces contradictory affidavits or other
grounds for impeachment). As such, defendant’s argument fails.
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b.) Implied Contract-in-Fact
Next, defendant argues that the trial court erred in
granting plaintiff’s motion for summary judgment because
plaintiff failed to establish the existence of a valid contract
between the parties. Defendant bases his argument solely on the
fact that plaintiff failed to offer the credit card agreement
between the parties into the record during the summary judgment
hearing. We disagree.
In order to prevail on a claim for breach of contract, a
party must show: “(1) existence of a valid contract and (2)
breach of the terms of that contract.” Poor v. Hill, 138 N.C.
App. 19, 26, 530 S.E.2d 838, 843 (2000) (citation omitted).
Mutual assent of both parties to the terms of a contract “is
essential to the formation of any contract . . . so as to
establish a meeting of the minds.” Connor v. Harless, 176 N.C.
App. 402, 405, 626 S.E.2d 755, 757 (2006) (citation and
quotation omitted). Mutual assent is typically formed “by an
offer by one party and an acceptance by the other, which offer
and acceptance are essential elements of a contract.” Id.(citation and quotation omitted) (emphasis in original). An
implied contract-in-fact (implied contract) is “as valid and
enforceable as an express contract.” Creech v. Melnik, 347 N.C.
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520, 526, 495 S.E.2d 907, 911 (1998) (citation omitted). The
formation of an implied contract “arises where the intent of the
parties is not expressed, but an agreement in fact, creating an
obligation, is implied or presumed from their acts.” Id.(citation omitted) The conduct of the parties shall imply an
offer and acceptance. Revels v. Miss Am. Org., 182 N.C. App.
334, 337, 641 S.E.2d 721, 724 (2007). Although plaintiff
failed to offer the credit card agreement into the record during
the summary judgment hearing, the undisputed facts establish the
existence of an implied contract. Plaintiff presented the trial
court with copies of monthly account statements from November
2008 to March 2011. The statements each bear defendant’s name,
his account number, his mailing address, purchases made,
outstanding balance, and payment due date. Importantly, the
statements indicate that plaintiff extended a line of credit to
defendant for $10,400.00, and defendant repeatedly made
purchases on the credit card. The statement also provided
specific terms as to method of payment, the calculation of
finance charges for late payments, grace periods, and how to
keep one’s account in good standing. Plaintiff also provided
copies of the Caviness checks made payable to plaintiff from
September 2008 until November 2009. Nothing in the record
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indicates that defendant ever disputed the charges or the
amounts owed. Additionally, plaintiff offered Ms. McRae’s
affidavit, which stated that defendant opened an account with
plaintiff “for the purpose of obtaining an extension of credit
and did thereafter use or authorize the use of the account for
the acquisition of goods, services, or cash advances in
accordance with the customer agreement governing use of that
account.” It further reads, “[t]he books and records of
Plaintiff show that Defendant(s) is/are currently indebted to
Plaintiff . . . for the just and true sum of $10,150.19 and that
all just and lawful offsets, payments, and credits have been
allowed.” Thus, we hold that, at a minimum, an implied contract
was formed between the parties because plaintiff’s extension of
credit constituted an offer, and defendant’s use of the credit
card amounted to an acceptance of plaintiff’s offer. Moreover,
payments to plaintiff by the Caviness checks coupled with the
credit card’s terms of use on the statements establish a mutual
assent to the specific provisions of the contract——to pay the
outstanding balance owed as evidenced on the account statements.
Accordingly, there is no genuine issue of material fact as to
whether a valid contract existed between the parties. See Miles
v. Carolina Forest Ass'n, 167 N.C. App. 28, 37, 604 S.E.2d 327,
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333-34 (2004) (finding the presence of an implied contract
between property owners and subdivision association where
owners: 1.) received benefits such as maintenance of
infrastructure in subdivision, 2.) had notice that such benefits
were incurred, and 3.) paid association fees in exchange for the
benefits).
III. Conclusion
In sum, plaintiff’s supporting documents were not
contradictory, Ms. McRae’s affidavit was not inherently suspect,
and plaintiff established the existence of a valid contract with
defendant. Thus, we affirm the trial court’s order granting
summary judgment to plaintiff.
Affirmed.
Judges McCULLOUGH and DAVIS concur.
Report per Rule 30(e).