Nytco Leasing, Inc. v. Dan-Cleve Corp.

230 S.E.2d 559 (1976) 31 N.C. App. 634

NYTCO LEASING, INC.
v.
DAN-CLEVE CORPORATION et al.
v.
SOUTHEASTERN MOTEL CORPORATION.

No. 7610SC306.

Court of Appeals of North Carolina.

December 15, 1976. Certiorari Denied March 7, 1977.

Sanford, Cannon, Adams & McCullough by E. D. Gaskins, Jr. and John Q. Beard, Raleigh, for plaintiff.

James, Hite, Cavendish & Blount by Marvin K. Blount, Jr., Greenville, Ellis Nassif, and Vaughan S. Winborne, Raleigh, for defendants.

Certiorari Denied by Supreme Court March 7, 1977.

MARTIN, Judge.

Defendants assign as error the failure of the trial court to grant their motion to dismiss pursuant to G.S. 1A-1, Rule 12(b), contending that any action against defendants was premature for the reason that there had been no breach of contract at the time the action was instituted. We find no merit in this assignment and it is overruled.

A large number of defendants' assignments of error are based on exceptions to "findings of fact" made by the trial court and its failure to make other "findings of fact." We repeat again what we have said many times, that, in passing upon a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, the court does not decide facts but makes a determination whether an issue which is germane to the action exists. Furst v. Loftin, 29 N.C.App. 248, 224 S.E.2d 641 (1976). If findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. Insurance Agency v. Leasing Corp., 26 N.C.App. 138, 215 S.E.2d 162 (1975).

Following the hearing on its motion for summary judgment before Judge McKinnon, plaintiff was entitled to have its motion granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, showed that there was no genuine issue as to any material fact and that plaintiff was entitled to judgment as a matter of law. G.S. 1A-1, Rule 56(c). While it was unnecessary for the trial court to make "findings for fact," the recitals in the judgment bearing that appellation do provide an aid in understanding how the trial court reached its determination that there was no genuine issue as to any material fact and that a party was entitled to judgment as a matter of law.

Nevertheless, when the appealing party fails to include in the record on appeal all of the materials that the trial court had before it in ruling on the motion for summary judgment, this Court is unable to say that the trial court erred in determining that there was no genuine issue as to any material fact. The rule is well established that when the evidence is not included in the record, it will be assumed that there was sufficient evidence to support the findings by the trial court. 1 Strong, N.C. Index 3d, Appeal and Error § 57.1 (1976). See also Telephone Co. v. Communications, Inc., 27 N.C.App. 673, 219 S.E.2d 800 (1975); Mt. Olive v. Price, 20 N.C.App. 302, 201 S.E.2d 362 (1973); Cobb v. Cobb, 10 N.C.App. 739, 179 S.E.2d 870 (1971). We think that principle applies here. Plaintiff's motion for summary judgment states that it is based on the complaint and the depositions of defendants Danielson and Cleve and the judgment of Judge McKinnon recites that depositions were considered. However, those depositions are not a part of the record on appeal.

That being true, all of defendants' assignments of error based on contentions that the trial court's findings are not supported by the evidence, and that the court should have made other findings, are overruled. We hold that defendants have failed to show that Judge McKinnon erred in determining that there was no genuine issue as to any material fact. We now proceed to consider whether plaintiff was entitled to judgment as a matter of law.

Defendants contend that the purported "lease agreement" executed by the parties is in reality a conditional sale contract. We reject this contention. Not only does the document contain all indicia of a lease, including a provision that the property would be returned to plaintiff at the expiration of the lease period, but the record also shows that plaintiff was not engaged in manufacturing or selling the property in question but, pursuant to a list furnished by defendants, went into the market place and purchased the property for defendants. We hold that the document is a lease and not a conditional sale contract.

Defendants Danielson and Cleve contend that the trial court erred in holding them personally responsible for the obligations of defendant corporation, and particularly for payment for the "expendable items." We find no merit in this contention. The personal guaranty agreement signed by each of the individual defendants provides that

". . . each of us as a primary obligor jointly and severally and unconditionally guarantees to you that Company [defendant corporation] will fully and promptly and faithfully perform, pay and discharge all its present and future obligations to you, irrespective of any . . . security therefor; and agrees, without your first having to proceed against Company or to liquidate paper or any security therefor, to pay on demand all sums due and to become due to you from Company and all losses, costs, attorneys' fees or expenses which may be suffered by you by reason of the Company's default or default of any of the undersigned hereunder; and agrees to be bound by and on demand to pay any deficiency established by a sale of paper and/or security held, with or without notice to us."

Defendants contend that Judge McKinnon erred in concluding that plaintiff was entitled to recover attorney fees pursuant to G.S. 6-21.2 and awarding attorney fees in the sum of $42,231.18. Defendants argue that the lease agreement provides that it should be regarded as a California contract and governed by and construed according to the laws of that state and that under California law the trial court awards a "reasonable" fee rather than a fee based on a percentage of the outstanding balance as provided by G.S. 6-21.2. We think this contention has merit.

This jurisdiction follows the general rule that the validity and construction of a contract are to be determined by the law of the place where the contract is made. Davis v. Davis, 269 N.C. 120, 152 S.E.2d 306 (1967); Construction Company v. Bank, 30 N.C.App. 155, 226 S.E.2d 408 (1976). Our courts have also held that the place at which the last act was done by either of the parties essential to a meeting of the minds determines the place where the contract was made. Fast v. Gulley, 271 N.C. 208, 155 S.E.2d 507 (1967); Construction Company v. Bank, supra.

While the contract involved here indicates that it was executed by defendant corporation in North Carolina on 6 December 1972, and was thereafter executed and accepted by plaintiff in California on 11 December 1972, we think the trial court should make a finding on that question. Whereupon, that part of Judge McKinnon's judgment awarding attorney fees is vacated and this cause will be remanded to the superior court for further determination with respect to attorney fees.

Should the trial court determine that the lease agreement was executed and accepted by plaintiff in California after it was executed by defendant corporation in North Carolina, the court will proceed to award attorney fees in accordance with California law. See Credit Corporation v. Ricks, 16 N.C.App. 491, 192 S.E.2d 707 (1972).

Section 1717 of West Annotated California Codes, Volume 9, Civil, provides:

"In any action on a contract, where such contract specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements."

The California courts in construing this law have said:

". . . [T]he major factors to be considered in determining the reasonableness of attorneys' fees [include]: ``the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's efforts, his learning, his age, and his experience in the particular type of work demanded; the intricacies and importance of the litigation, the labor and the necessity for skilled legal training and ability in trying the cause, and the time consumed.'" (Citation omitted.) Clejan v. Reisman (1970), 5 Cal.App.3d 224, 241, 84 Cal.Rptr. 897, 908.

The California courts have further held that the award of fees is addressed to the sound discretion of the trial judge. Kanner v. Globe Bottling Co. (1969), 273 Cal.App.2d 559, 78 Cal.Rptr. 25; Shannon v. Northern Counties Title Ins. Co. (1969), 270 Cal. App.2d 686, 76 Cal.Rptr. 7.

Should the trial court determine that the lease agreement was executed by defendant corporation in North Carolina after it was executed by plaintiff in California, the court will reinstate the provisions of Judge McKinnon's judgment relating to attorney fees.

We have considered the other contentions argued in defendants' brief but find them to be without merit.

For the reasons stated, except for the provisions awarding attorney fees, the judgments appealed from are affirmed.

Affirmed in part; remanded with instructions.

BRITT and HEDRICK, JJ., concur.