An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-598
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
JEFFREYS LEASING COMPANY,
Plaintiff
v. Wayne County
No. 11 CVS 2501
SHAMSUDDIN N. GILLANI,
Defendant
Appeal by defendant from order entered 14 December 2012 by
Judge J. Carlton Cole in Wayne County Superior Court. Heard in
the Court of Appeals 9 October 2013.
Ward and Smith, P.A., by Tyler J. Russell and E. Bradley
Evans, for plaintiff-appellee.
David R. Payne, P.A., by David R. Payne, for defendant-
appellant.
CALABRIA, Judge.
Shamsuddin N. Gillani (“defendant”) appeals from the trial
court’s order granting summary judgment in favor of Jeffreys
Leasing Company (“plaintiff”). We affirm.
I. Background
On 20 April 2009, plaintiff entered into a lease agreement
with Sapna Hotel Group of Peachtree City, LLC, d/b/a Hampton Inn
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Peachtree City (“Sapna Peachtree”) whereby Sapna Peachtree would
lease an elevator from plaintiff for five years (“the 2009 lease
agreement”). The elevator was to be used in Sapna Peachtree’s
hotel in Georgia. Defendant, who was the member-manager of
Sapna Peachtree, executed a personal guaranty whereby he
unconditionally promised to repay defendant all monies owed to
plaintiff in the event of a default by Sapna Peachtree.
In 2010, Sapna Peachtree’s hotel went into foreclosure and
was subsequently foreclosed upon. Thereafter, it defaulted upon
and breached the 2009 lease agreement by failing to make its
payments under the lease. After Sapna Peachtree’s default,
plaintiff accelerated all monthly payments pursuant to the terms
of the 2009 lease agreement. When Sapna Peachtree failed to
cure its default, plaintiff made a demand upon defendant for the
balance of the unpaid lease. Defendant refused to pay.
On 28 November 2011, plaintiff initiated an action against
defendant in Wayne County Superior Court. Plaintiff’s complaint
alleged that defendant was liable under the guaranty agreement
for $131,968.49. On 6 February 2012, defendant filed an answer
in which he admitted that Sapna Peachtree executed the 2009
lease agreement and that he executed a personal guaranty for
that agreement. On 6 August 2012, the trial court allowed
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defense counsel to withdraw from the case because defendant had
retained new counsel.
On 7 August 2012, plaintiff filed a motion for summary
judgment. The trial court granted plaintiff’s motion on 26
November 2012. Defendant appeals.
II. Standard of Review
“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, 524, 649 S.E.2d
382, 385 (2007)). “[O]nce the moving party presents an
adequately supported [summary judgment] motion, the opposing
party must come forward with specific facts (not mere
allegations or speculation) that controvert the facts set forth
in the movant’s evidentiary forecast.” Johnson v. Scott, 137
N.C. App. 534, 537, 528 S.E.2d 402, 404 (2000)(citation
omitted).
III. Consideration
Defendant argues that the trial court erred in granting
summary judgment because there were genuine issues of material
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fact as to whether the contract and guaranty were valid. We
disagree.
Initially, we note that defendant identifies three issues
that he argues precluded summary judgment: (1) that Sapna
Peachtree lacked capacity to enter into the 2009 lease
agreement; (2) that the 2009 lease agreement and guaranty were
not supported by consideration; and (3) that plaintiff failed to
adequately establish his damages. However, at the summary
judgment hearing, defendant relied solely on the consideration
argument. As a result, the only issue we will address on appeal
is whether both the 2009 lease agreement and the guaranty lacked
consideration. See N.C.R. App. P. 10(a)(1) (2013)(“In order to
preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make. . . .”); Piraino Bros., LLC v. Atl.
Fin. Grp., Inc., 211 N.C. App. 343, 348, 712 S.E.2d 328, 332
(2011)(“[W]here a theory argued on appeal was not raised before
the trial court, the law does not permit parties to swap horses
between courts in order to get a better mount in the appellate
courts.” (internal quotations and citation omitted)).
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“[I]n order for a contract to be enforceable it must be
supported by consideration. Consideration sufficient enough to
support a contract consists of any benefit, right, or interest
bestowed upon the promisor, or any forbearance, detriment, or
loss undertaken by the promisee.” Fairfield Harbour Prop. Owners
Ass'n, Inc. v. Midsouth Golf, LLC, ___ N.C. App. ___, ___, 715
S.E.2d 273, 282 (2011)(internal quotations and citations
omitted). In the instant case, defendant contends that there
were genuine issues of material fact regarding whether both the
2009 lease agreement and the guaranty were supported by
consideration. In making this argument, defendant relies upon
two affidavits which were filed in opposition to plaintiff’s
summary judgment motion, one from him personally and the other
from his employee, Layton Parker. Both affidavits aver that the
2009 lease agreement between plaintiff and Sapna Peachtree was
actually entered into by defendant on behalf of “Sapna Hotel
Group Asheville, LLC,” a legally distinct entity from Sapna
Peachtree.1 The affidavits further aver that Sapna Peachtree did
not actually execute the 2009 lease agreement until 21 June
2010, when it no longer owned the property on which plaintiff’s
elevator had been installed. Since it did not own the hotel at
1
Defendant is also the member-manager of Sapna Hotel Group
Asheville, LLC.
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the time the lease agreement was purportedly actually executed,
defendant contends Sapna Peachtree derived no benefit from the
lease that could provide consideration for the 2009 lease
agreement. According to defendant’s argument, this lack of
consideration would invalidate both the lease and defendant’s
underlying guaranty.
However, prior to presenting these affidavits to the trial
court at the summary judgment hearing, defendant had already
admitted the following allegations from plaintiff’s complaint:
(3) That plaintiff leased certain equipment
to Sapna Hotel Group Peachtree City, LLC
d/b/a Hampton Inn Peachtree City, pursuant
to that a (sic) certain Lease Agreement
dated April 20, 2009, a copy of which is
attached hereto as Exhibit A and
incorporated herein by reference.
(4) As part of said Lease Agreement, the
defendant personally guaranteed to the
plaintiff the payment of all amounts due
under said Lease Agreement as evidenced by
that certain Equipment Lease Guaranty, a
copy of which is attached hereto as Exhibit
B and incorporated herein by reference.
It is well established that “[a] party is bound by his
pleadings and, unless withdrawn, amended, or otherwise altered,
the allegations contained in all pleadings ordinarily are
conclusive as against the pleader. He cannot subsequently take a
position contradictory to his pleadings.” Davis v. Rigsby, 261
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N.C. 684, 686, 136 S.E.2d 33, 34 (1964). Thus, “[a] non-moving
party may not defeat summary judgment by presenting subsequent
sworn testimony, which contradicts the prior judicial admissions
of his pleadings.” Bradley v. Bradley, 206 N.C. App. 249, 256,
697 S.E.2d 422, 427 (2010). A party may admit to the contents
of documents which are incorporated by reference in a pleading.
See Rollins v. Miller Roofing Co., 55 N.C. App. 158, 161, 284
S.E.2d 697, 700 (1981).
In the instant case, defendant’s admissions conclusively
establish that Sapna Peachtree entered into a “Lease Agreement
dated April 20, 2009” and that defendant executed an “Equipment
Lease Guaranty” with respect to that lease. According to these
documents, which were also admitted by defendant, Sapna
Peachtree received and accepted the elevator from plaintiff,
which established consideration for the lease. Furthermore,
defendant was required to execute the guaranty because plaintiff
was “unwilling to enter into the Lease without the Guaranty,”
and this requirement established consideration for the guaranty.
Since defendant admitted these documents, he cannot rely on
affidavits which contradict the documents to dispute the
existence of consideration. Bradley, 206 N.C. App. at 256, 697
S.E.2d at 427. Thus, there is no genuine issue of material fact
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as to whether both the 2009 lease agreement and the guaranty
were supported by consideration. This argument is overruled.
IV. Conclusion
Defendant’s admissions conclusively established that both
the lease agreement and guaranty were supported by
consideration. Thus, there were no genuine issues of material
fact with regards to plaintiff’s claim and the trial court
properly granted summary judgment in favor of plaintiff. The
trial court’s order is affirmed.
Affirmed.
Judges ELMORE and STEPHENS concur.
Report per Rule 30(e).
Jeffreys Leasing Co. v. Gillani
Combined Opinion