Sfreddo v. HicksÂ

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
 SFREDDO V. HICKS

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.

-2-
 SFREDDO V. HICKS

Opinion of the Court

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).

-3-
 SFREDDO V. HICKS

Opinion of the Court

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

-4-
 SFREDDO V. HICKS

Opinion of the Court

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

-5-
 SFREDDO V. HICKS

Opinion of the Court

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

-6-
 SFREDDO V. HICKS

Opinion of the Court

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

-7-
 SFREDDO V. HICKS

Opinion of the Court

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

-8-
 SFREDDO V. HICKS

Opinion of the Court

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

-9-
 SFREDDO V. HICKS

Opinion of the Court

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

- 10 -
 SFREDDO V. HICKS

Opinion of the Court

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

- 11 -
 SFREDDO V. HICKS

Opinion of the Court

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,

- 12 -
 SFREDDO V. HICKS

Opinion of the Court

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

- 13 -
 SFREDDO V. HICKS

Opinion of the Court

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[.]”

- 14 -
 SFREDDO V. HICKS

Opinion of the Court

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).

- 15 -
 SFREDDO V. HICKS

Opinion of the Court

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

- 16 -
 SFREDDO V. HICKS

Opinion of the Court

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

- 17 -
 SFREDDO V. HICKS

Opinion of the Court

(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

- 18 -
 SFREDDO V. HICKS

Opinion of the Court

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.

- 19 -
 SFREDDO V. HICKS

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?

- 20 -
 SFREDDO V. HICKS

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).

- 21 -
 SFREDDO V. HICKS

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.

- 22 -
 SFREDDO V. HICKS

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

- 23 -
 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

- 24 -
 SFREDDO V. HICKS

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.

- 25 -