IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-708

No. COA22-104

Filed 1 November 2022

Mecklenburg County, No. 19-CVS-20203

D.V. SHAH CORP., Plaintiff,

v.

VROOMBRANDS, LLC, a North Carolina limited liability company, and VICTOR 

OBAIKA, Defendants.

Appeal by Defendants from order entered on 10 June 2021 by Judge Karen 

Eady Williams in Mecklenburg County Superior Court. Heard in the Court of 

Appeals 8 June 2022.

Miller Walker & Austin, by Carol L. Austin, for the Plaintiff-Appellee.

Nexsen Pruet, PLLC, by Austin King and Caitlin A. Mitchell, for the DefendantAppellant.

JACKSON, Judge.

¶ 1 Victor Obaika and Vroombrands, LLC (“Defendants”) appeal the trial court’s 

order granting summary judgment in favor of D.V. Shah Corp. (“Plaintiff”) and 

awarding Plaintiff attorney’s fees. We vacate the trial court’s order and remand the

case for further proceedings.

I. Background

¶ 2 On 1 April 2018, VroomBrands, LLC (“VroomBrands”) entered into a 

commercial lease of a gas station, convenience store, and tire shop from Plaintiff. 
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Eight days later, Mr. Obaika, the sole member and manager of VroomBrands, signed 

an unconditional personal guaranty of VroomBrands’s obligations under the lease. 

The lease term was from 1 April 2018 to 31 March 2023. VroomBrands agreed to pay 

$4,500 on the first of each month, real property taxes on the property, miscellaneous 

fees, and a security deposit of $13,500, which Plaintiff had the right to apply to any

arrearage in rent or to other payments due under the lease in the event of a default. 

By signing the lease, Mr. Obaika agreed on behalf of VroomBrands to pay all costs 

associated with a breach of the lease, including reasonable attorney’s fees. The lease 

included a merger clause, which provides that the lease “contains a complete 

expression of the agreement between the parties and there are no promises, 

representations or inducements except such as are [t]herein provided.”

¶ 3 Mr. Obaika paid the security deposit in full as well as the rent for nearly a 

year, but never paid the property taxes. In order to obtain gas for the service station 

Defendants were operating, Plaintiff released $9,000 of the security deposit to pay 

Mid-State Petroleum for gas. Mr. Obaika was aware of and consented to this 

arrangement.

¶ 4 Mr. Obaika stopped paying rent on 1 February 2019. Defendants vacated the 

premises on 1 October 2019. 
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¶ 5 After some difficulty finding a new tenant during the COVID-19 pandemic, 

Plaintiff eventually relet the property on 1 August 2020 for a monthly rent of only 

$1,000.

¶ 6 Plaintiff filed its Complaint, verified by Plaintiff’s president, on 17 October 

2019. No summons is included in the record, nor is any evidence of when or how 

Defendants were served; there is, however, a stipulation that the trial court had 

personal jurisdiction over the parties.

¶ 7 Defendants filed their Answer and Counterclaim on 1 June 2020. On 15 June 

2020, Plaintiff moved to dismiss the counterclaim. The trial court entered a 

scheduling order on 15 June 2020, setting (1) the matter for trial on 1 February 2021;

(2) 16 November 2020 as the close of discovery; and (3) a dispositive motion deadline 

of 1 December 2020. By a 22 January 2021 administrative amendment to the 

scheduling order, trial was postponed from 1 February 2021 to 28 June 2021 due to 

COVID-19.

¶ 8 The scheduling order provides that “an extension of the trial date after the end 

of the discovery deadline[] does not extend the discovery deadline[,]” and since 

discovery closed on 16 November 2020—well before 22 January 2021, the date to 

which trial was postponed—the postponement of trial did not change any other date 

in the scheduling order. 
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¶ 9 On 15 September 2020, Plaintiff propounded its first set of interrogatories and 

requests for production of documents. On 18 November 2020, Mr. Obaika responded 

to this written discovery, making various and sundry objections and asserting claims 

of privilege, as well as offering to produce non-privileged documents at a mutually 

convenient time and location. He did not, however, produce any responsive 

documents. Plaintiff subsequently emailed Shawn Copeland, then Defendants’

counsel, to inform Mr. Copeland that Plaintiff considered Defendants’ discovery 

responses inadequate and that Defendants’ failure to produce any documents in 

response to the requests for production was unacceptable. Plaintiff’s counsel notified

Mr. Copeland that Plaintiff would file a motion to compel production of the documents 

if Defendants did not supplement their responses and produce the documents. Mr. 

Copeland responded by email one week later. On 7 December 2020, Mr. Copeland’s 

office relayed to Plaintiff’s counsel that any supplemental responses would be delayed 

due to a serious family medical issue. 

¶ 10 Plaintiff did not file any dispositive motions by the dispositive motion deadline.

Nor did Plaintiff file a motion to compel or any dispositive motion while Defendant 

was still represented by Mr. Copeland. Instead, after Mr. Copeland moved to 

withdraw as Defendants’ counsel on 5 January 2021, with the other parties’ consent, 

and the court granted the motion to withdraw in an order entered 3 February 2021, 

Plaintiff filed a motion for summary judgment. Plaintiff filed the motion on 29 April 
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2021—35 days after the dispositive motion deadline—and exactly 60 days from the 

date set for trial. Discovery had closed, and as previously noted, Plaintiff had not 

moved to compel production of the documents or for Defendants to supplement their 

responses, despite notifying Defendants’ former counsel that Plaintiff intended to do 

so. Nor had Plaintiff ever moved for a default or default judgment as a sanction for

Defendants’ failure to produce documents in response to Plaintiff’s requests for 

production. 

¶ 11 On 29 April 2021, when Plaintiff filed the motion for summary judgment, 

Plaintiff’s counsel caused the motion to be served on Mr. Copeland—Defendants’ 

former counsel—not either of Defendants—even though counsel had joined the 3 

February 2021 order allowing Mr. Copeland to withdraw as Defendants’ counsel over 

three months beforehand, on 18 January 2021—and had not been informed at the

time the motion for summary judgment was served of the identity of any new counsel 

representing either of Defendants.

¶ 12 Then, on 7 May 2021, Plaintiff noticed the motion for hearing, noticing the 

hearing for 24 May 2021. Nothing in the record indicates whether Plaintiff 

corresponded with Defendants or counsel for either of them before selecting 24 May 

2021 as the date for the hearing, but the fact that Plaintiff’s counsel served 

Defendants’ former counsel rather than Defendants with the motion a week 

beforehand suggests there was no communication whatsoever about the date of the 
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hearing between Plaintiff’s counsel and Defendants prior to Plaintiff noticing a 

motion for hearing that had not even been served on Defendants. The notice of 

hearing omitted any mention of Defendants’ counterclaim. What is more, rather than 

serving Defendants’ former counsel with the notice of hearing—as Plaintiff’s counsel 

had with the motion itself—Plaintiff’s counsel caused the notice to be served on 

Defendants—a week after serving their former counsel with the motion.

¶ 13 Consequently, it was not until 7 May 2021 that Defendants were served with 

Plaintiff’s 29 April 2021 motion for summary judgment and Plaintiff’s counsel served 

Defendants with an amended certificate of service reflecting service of both the 

motion and the notice of hearing on Defendants that day. Defendants thus only 

received notice of the date of the hearing on Plaintiff’s motion for summary 

judgment—a date it does not appear either of them were consulted about—ten 

business days ahead of the hearing.

¶ 14 Four days later, on 14 May 2021, Mr. Obaika sent Plaintiff’s counsel an email 

in which he requested that the affidavit in support of Plaintiff’s motion for summary 

judgment be shared with him. Plaintiff’s counsel did not serve Defendants with this 

affidavit until 20 May 2021, two business days before the 24 May 2021 hearing. 

Although the notary stamp on the affidavit states that the affidavit was signed on 19 

May 2021, the clerk’s file stamp on the affidavit appears to be for 12:27 p.m. on 21
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May 2021. Nothing in the record explains the discrepancy between the date on the

notary seal on the affidavit and the time stamp on the affidavit. 

¶ 15 Two business days in advance of the hearing—also on 20 May 2021—Plaintiff 

served a Memorandum of Points of Authorities in Support of Plaintiff’s Motion for 

Summary Judgment on Defendants. There is no file stamp on this filing in the record 

on appeal so the date it was filed with the court—and indeed, whether it was filed at 

all—is not known. The transcript of the 24 May 2021 hearing suggests that the filing 

was shared with the court in advance of the hearing.

¶ 16 This Memorandum of Points of Authorities in Support of Plaintiff’s Motion for 

Summary Judgment was the first time Defendants received notice of any kind that 

Plaintiff was seeking summary judgment on Defendants’ counterclaim and 

affirmative defenses at the 24 May 2021 hearing. The substance of the argument in 

Plaintiff’s motion filed on 29 April 2019 was restricted to Plaintiff’s breach of contract 

claim—there was no mention in the motion of Defendants’ counterclaim and 

affirmative defenses at all. Only the brief served on Defendants two days before the 

hearing notified Defendants that the counterclaim and Defendants’ affirmative 

defenses were potentially before the court on 24 May 2021 on a motion filed 35 days 

after the deadline for dispositive motions and while Defendants were not represented 

by counsel. 
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¶ 17 The motion came on for hearing before the Honorable Karen Eady Williams in 

Mecklenburg County Superior Court on 24 May 2021 via WebEx videoconference, in 

accordance with local COVID-19 protocols. The only record evidence of any actions 

taken by Plaintiff to follow up on outstanding discovery issues prior to the 24 May 

2021 hearing on the motion was from 12 May 2021, ten days before the hearing.

¶ 18 Mr. Obaika appeared pro se on his own behalf at the hearing but was not 

allowed to appear on behalf of VroomBrands because he is not a lawyer. Mr. Obaika 

objected that the motion was untimely and requested a continuance until he could 

obtain counsel, but the trial court denied his request. The court posed numerous 

questions to Plaintiff’s counsel about the lack of notice given with regard to 

Defendants’ counterclaim, but in the end, the court heard argument on whether 

summary judgment was proper with respect to both Plaintiff’s claims and 

Defendants’ counterclaim. The court granted summary judgment in favor of Plaintiff 

on both Plaintiff’s claims and Defendants’ counterclaim in an order entered 10 June 

2021. The court’s Order Granting Plaintiff’s Motion for Summary Judgment and 

Request for Attorney’s Fees also ordered Defendants to pay Plaintiff a total of 

$103,078.35—$90,500 for past due and future rent and real property taxes—and 

$12,578.35 in reasonable attorney’s fees.

¶ 19 Defendants timely noted an appeal to our Court.

II. Analysis
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¶ 20 This case presents the question of whether the trial court abused its discretion 

in denying Mr. Obaika’s request for a continuance. Under the circumstances 

presented here, we hold that it did.

A. Standard of Review

¶ 21 “The standard of review for denial of a motion to continue is generally whether 

the trial court abused its discretion.” Morin v. Sharp, 144 N.C. App. 369, 373, 549 

S.E.2d 871, 873, disc. rev. denied, 354 N.C. 219, 557 S.E.2d 531 (2001) (citation 

omitted). However, “this discretion is not unlimited, and must not be exercised 

absolutely, arbitrarily, or capriciously, but only in accordance with fixed legal 

principles.” Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976) 

(cleaned up). Promotion of substantial justice should be the chief consideration. Id. 

“Before ruling on a motion to continue, ‘the judge should hear the evidence pro and 

con, consider it judicially and then rule with a view to promoting substantial justice.’” 

Rossi v. Spoloric, 244 N.C. App. 648, 651, 781 S.E.2d 648, 651 (2016) (quoting 

Shankle, 289 N.C. at 483, 223 S.E.2d at 386 (1976)). 

B. The Rules of Court in North Carolina Are Rules of Law

¶ 22 The Constitution of North Carolina confers on the General Assembly the 

authority to prescribe the jurisdiction of North Carolina trial and appellate courts—

within constitutional constraints not at issue here—and “to prescribe rules of 

procedure and practice in the district and superior court divisions of the General 
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Court of Justice.” State v. Mangino, 200 N.C. App. 430, 431-32, 683 S.E.2d 779, 780-

81 (2009). Article IV, § 13(2) of our Constitution specifically authorizes the General 

Assembly to delegate the authority to prescribe rules of practice and procedure in 

North Carolina trial courts to our Supreme Court, N.C. Const. art. IV, § 13(2),

1 and 

“[t]he General Assembly has authorized our Supreme Court to promulgate rules of 

practice and procedure for the superior and district courts[,]” Young v. Young, 133 

N.C. App. 332, 515 S.E.2d 478 (1999) (citing N.C. Gen. Stat. § 7A-34).2 “Pursuant to 

this authority, our Supreme Court requires the Senior Resident Judge and Chief 

District Judge in each judicial district to take appropriate actions such as the 

promulgation of local rules to [e]nsure prompt disposition of any pending motions or 

other matters necessary to move the cases toward a conclusion.” Id. (cleaned up). 

These “[l]ocal rules are rules of court which are adopted to promote the effective 

administration of justice[.]” Mitchell v. Mitchell, 199 N.C. App. 392, 402, 681 S.E.2d 

520, 527 (2009) (internal mark and citation omitted).

¶ 23 In general, our Supreme Court has cautioned that rules of practice and 

procedure should be applied in favor of “just and prompt consideration and 

1 The General Assembly nevertheless retains ultimate authority to “alter, amend, or 

repeal any rule of procedure or practice adopted by the Supreme Court for” North Carolina 

trial courts. N.C. Const. art. IV, § 13(2).

2 Likewise, rules of practice and procedure adopted under the statutory authority 

conferred on the judicial branch by N.C. Gen. Stat. § 7A-34 must be “supplementary to, and 

not inconsistent with, acts of the General Assembly.” N.C. Gen. Stat. § 7A-34 (2021).
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determination of [] the business before [our courts]” rather than be allowed to permit 

“technical delay[.]” 276 N.C. 735. In a recent reaffirmation of this principle, the 

Court by a 25 August 2021 order revised Rule 6 of the General Rules of Practice to 

require that counsel first meet and confer with opposing counsel before scheduling a 

hearing on a motion. See N.C. Super. and Dist. Ct. R. 6 (2022) (“An attorney 

scheduling a hearing on a motion must make a good-faith effort to request a date for 

the hearing on which each interested party is available.”) (emphasis added). In that 

order, the Court specified that “[a]n attorney’s failure to comply with th[e] [meet and 

confer] requirement is an adequate ground on which [a] court may grant a 

continuance.” Id.

¶ 24 The General Assembly adopted the North Carolina Rules of Civil Procedure in 

1967 and amended them in 1971 pursuant to the authority conferred on it by Article 

IV, § 13(2) of our Constitution. See Marks v. Thompson, 14 N.C. App. 272, 274, 188 

S.E.2d 22, 23-24 (1972). Rule 5 of the North Carolina Rules of Civil Procedure 

requires, in general, that “every pleading subsequent to the original complaint . . . be 

served upon each of the parties[.]” N.C. Gen. Stat. § 1A-1, Rule 5(a) (2021). It further 

requires service of “every brief or memorandum in support . . . at least two days before 

the hearing on the motion.” Id., Rule 5(a1).

¶ 25 Rule 56 of the North Carolina Rules of Civil Procedure requires service of any 

motion for summary judgment “at least 10 days before the time fixed for the hearing.” 
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Id., Rule 56(c). It also requires service of “opposing affidavits at least two days before 

the hearing.” Id.

¶ 26 “Affidavits in support of a motion for summary judgment are required by . . . 

Rules 6(d) and 56(c) to be filed and served with the motion [for summary judgment],” 

Burlington Ins. Co. v. Fishermans Bass Cir., Inc., 165 N.C. App. 439, 444, 598 S.E.2d 

678, 681 (2004) (citation and quotation marks omitted)—and “at least 10 days before 

the time fixed for the [summary judgment] hearing,” N.C. Gen. Stat. § 1A-1, Rule

56(c) (collectively, the “10-day affidavit rule”). See also 2 North Carolina Civil 

Procedure § 56-9 (4th ed. 2021) (“Although Rule 56 is silent, Rule 6(d) requires that 

summary judgment affidavits be served with the motion.”).

¶ 27 Rule 6(b) grants the trial court discretion to enlarge the time within which an 

affidavit in support of a summary judgment motion may be served if the moving party 

requests additional time “before the expiration of the period originally prescribed or 

as extended by previous order.” Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App.

129, 131, 203 S.E.2d 421, 423 (1974). “If the request is made after the motion for 

summary judgment has been served, there must be a showing of excusable neglect.” 

Id. In addition to the exception provided by Rule 6(d), Rule 56(e) also “grants the 

trial judge wide discretion to permit further affidavits to supplement those which 

have already been served.” Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 

216, 341 S.E.2d 61, 63 (1986) (citation omitted) (emphasis added). “However, this 
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provision presupposes that an affidavit or affidavits have already been served.” 

Battle v. Nash Tech. Coll., 103 N.C. App. 120, 127, 404 S.E.2d 703, 707 (1991) (citation 

omitted).

¶ 28 Under the authority delegated by the General Assembly to our Supreme Court, 

N.C. Const. art. IV, § 13(2), and delegated by our Supreme Court to the Senior 

Resident Superior Court Judge of the Twenty-Sixth Judicial District of North 

Carolina, N.C. Gen. Stat. § 7A-34 (2021), encompassing Mecklenburg County, thenSenior Resident Superior Court Judge W. Robert Bell adopted the local rules in effect 

during the pendency of this case, which are still in effect today, on 20 January 2017. 

¶ 29 In Mecklenburg County Superior Court, Local Rule 6 governs scheduling 

orders—or Case Management Orders (“CMOs”)—as they are known there. See 

Mecklenburg (“Meck.”) Cnty. Loc. R. 6. With exceptions for medical malpractice and 

exceptional civil and complex business cases, which are governed by different rules,

when a case is ready to be scheduled for trial, “a Case Management Order (‘CMO’) 

will be issued and forwarded to all parties or their counsel of record[,]” which “shall 

include deadlines for the trial of the case, the filing of dispositive motions, the 

designation of experts, the completion of discovery, and pre-trial disclosures.” Meck. 

Cnty. Loc. R. 6.2. Local Rule 6.3 affords parties the opportunity to seek to modify the 

scheduling order by either (1) submitting a joint proposed substitute scheduling order 

within 30 days of entry of the first scheduling order; (2) requesting to be heard by the 
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court regarding the scheduling order; or (3) notifying the Mecklenburg County 

Caseflow Manager “that a motion to dismiss the entire complaint, or [] to compel 

arbitration, or request for designation as Exceptional or Complex Business Case has 

been filed or submitted[.]” Meck. Cnty. L. R. 6.3. Notably, under Local Rule 6.7, the 

dispositive motion deadline is one of the only three scheduling dates that cannot be 

extended or altered by the parties—the others being the trial date and the mediation 

deadline. Meck. Cnty. L. R. 6.7. Local Rule 6.7(a) specifically provides that “[u]nder 

no circumstances shall any agreed extensions or any consent order extensions of the 

discovery deadline by the Clerk of Superior Court’s Office alter the dispositive motion 

filing deadline or assigned trial date in the CMO.” Meck. Cnty. L. R. 6.7(a) (emphasis 

added).

¶ 30 Local Rule 12 governs motions and motions practice in Mecklenburg County 

Superior Court. See Meck. Cnty. Loc. R. 12. As under newly revised Rule 6 of the 

General Rules of Practice, under Local Rule 12.1 in Mecklenburg County Superior 

Court, movants must “make a good faith effort to obtain the availability of 

represented parties involved prior to obtaining a hearing date and should refrain 

from scheduling hearings without first attempting a good faith consultation.” Meck. 

Cnty. Loc. R. 12.1 (emphasis added).

¶ 31 Consistent with the two-day requirement of Rules 5 and 56 of the North 

Carolina Rules of Civil Procedure, Local Rule 12.11 in Mecklenburg County Superior 
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Court requires submission of briefs-in-support of motions set for hearing to the court 

and other parties “no later than two business days before the hearing date[.]” Meck. 

Cnty. Loc. R. 12.1(e). Local Rule 12.11 is more exacting than Rules 5 and 56 of the 

Rules of Civil Procedure though, requiring that briefs be submitted “no later than two 

business days before the hearing date and no later than 48 hours prior to the hearing 

time.” Meck. Cnty. Loc. R. 12.1(e) (emphasis added). Likewise, Local Rule 12.15, 

which governs evidence submitted in support of motions set for hearing such as 

affidavits, deposition transcripts, and other exhibits, requires that any such material 

be submitted to the court and other parties “no later than two business days before 

the hearing date and no later than 48 hours prior to the hearing time of the hearing.” 

Meck. Cnty. Loc. R. 12.15(a) (emphasis added).

¶ 32 Local Rule 12.11(e) offers the following instructive example regarding the 

notice to which parties are entitled in advance of a hearing on a motion: 

For example, if the Motion is scheduled to be heard at 10:00 

a.m. on Monday morning, the briefs shall be delivered for 

receipt by the opposing side no later than 10:00 a.m. on the 

previous Thursday. In no event shall briefs be delivered to 

the Judge prior to the opposing side.

Meck. Cnty. Loc. R. 12.11(e) (emphasis added). As Local Rule 12.11(f) goes on to 

explain, “[t]he purpose of this rule is to allow the judge to review briefs in advance of 

the hearing to ensure that oral advocacy is meaningful and to allow counsel the same 

time to review the opposing party’s brief in advance of the hearing[,]” Meck. Cnty. 
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Loc. R. 12.11(f) (emphasis added), i.e., to prevent any party from benefiting from 

unfair surprise. As a remedy for violations of Local Rule 12.11(e), Local Rule 12.11(g) 

specifically provides that “the Court may continue the hearing for a reasonable period 

of time, proceed with the hearing without considering the untimely served briefs, or 

take such action as justice requires.” Meck. Cnty. Loc. R. 12.11(g).

C. Violations and Apparent Violations by Plaintiff

¶ 33 On 29 April 2021, Plaintiff filed the motion for summary judgment. The motion 

was not timely: although it was filed more than ten business days in advance of the 

24 May 2021 hearing, as required by Rule 56 of the North Carolina Rules of Civil 

Procedure, the deadlines set by the 15 June 2020 scheduling order governed, and the 

motion violated the deadline set by the scheduling order. The motion was filed 35 

days late, merely 60 days from the trial date. The record does not reflect any attempt 

by the parties to extend the dispositive motion deadline, nor could they do so by 

consent. See, e.g., Meck. Cnty. L. R. 6.7(a) (“Under no circumstances shall any agreed 

extensions or any consent order extensions of the discovery deadline by the Clerk of 

Superior Court’s Office alter the dispositive motion filing deadline[.]”).

¶ 34 Plaintiff then noticed the motion for hearing on 7 May 2021 in apparent 

violation of Local Rule 12.1, which states that parties “should refrain from scheduling 

hearings without first attempting a good faith consultation” regarding the date of the 

hearing. Meck. Cnty. Loc. R. 12.1. Although the record does not affirmatively 
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demonstrate that Plaintiff did not consult with Defendants before selecting 24 May 

2021 as the hearing date and noticing the hearing for that date on 7 May 2021, the 

record does show that Plaintiff’s counsel served Defendants’ former counsel rather 

than Defendants with the motion and then a week later served Defendants and not 

counsel for either of them, current or former, with the notice of hearing, all after 

joining an order over three months beforehand allowing Defendants’ former counsel 

to withdraw from the case, which strongly suggests Defendants were not consulted 

about the 24 May 2021 hearing date on or before 7 May 2021, when Plaintiff’s counsel 

noticed it. This apparent violation of Local Rule 12.1 would also have violated newly 

revised Rule 6 of the General Rules of Practice, had the apparent violation not 

predated the Supreme Court’s 25 August 2021 revision of Rule 6 by three months.

¶ 35 The motion was not properly served. Again, the motion was served on 29 April 

2021 on Defendants’ former counsel, not Defendants, even though Plaintiff’s counsel 

had joined an order allowing Mr. Copeland to withdraw from the case over three 

months before the motion was served. Serving Mr. Copeland rather than Defendants 

violated Rule 5(b)b. of the North Carolina Rules of Civil Procedure, which allows 

service by mail but requires the mail be sent to the party’s address, not the address 

of their former counsel. See N.C. Gen. Stat. § 1A-1, Rule 5(b)b. (2021). This defect in 

service was only cured by Plaintiff when the amended certificate of service for the 

motion and the notice was filed with the court on 12 May 2021—eight business days 
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before the hearing Plaintiff’s counsel appears to have unilaterally scheduled for 24 

May 2021.

¶ 36 Because of the absence of a file stamp on the Memorandum of Points and 

Authorities in Support of Plaintiff’s Motion for Summary Judgment that was the first 

notice Defendants could have received that their counterclaim and affirmative 

defenses were potentially before the court on 24 May 2021, we cannot say with 

certainty that this brief was not timely filed. Above the signature line it is dated 20 

May 2021 and the certificate of service reflects a 20 May 2021 date of service. Plaintiff 

noticed the hearing for 11:30 a.m. on 24 May 2021 so unless the brief was served on 

Defendants and the court prior to 11:30 a.m. on 21 May 2021, and served on both the 

court and Defendants at the same time, it was not properly served. See Meck. Cnty. 

Loc. R. 12.1(e), (f). 

¶ 37 The brief references a supporting affidavit repeatedly. The certificate of 

service of this affidavit reflects service of the affidavit on 20 May 2021, the same day 

as the brief. Although the notary stamp on the affidavit states that the affidavit was 

signed on 19 May 2021, the clerk’s file stamp on the affidavit is for 12:27 p.m. on 21

May 2021, which shows that service of the affidavit violated Local Rule 12.15, which 

required service of the affidavit on Defendants by 11:30 a.m. on 20 May 2021 (because 

the hearing was scheduled for 11:30 a.m. on 24 May 2021). This violation of Local 

Rule 12.15 in the service of the supporting affidavit, the unexplained discrepancy 
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between date on the notary seal and the time of service, and the absence of a file 

stamp on the brief in the record on appeal at least supports the inference that the 

affidavit was filed and served at the same time as the brief and that service of the 

brief therefore likewise violated Local Rule 12.1(e).

¶ 38 The affidavit was served on Defendants in violation of Local Rule 12.15 even 

though Mr. Obaika had specifically requested a copy of the affidavit from Plaintiff’s 

counsel a week beforehand. After finally being served with the motion on 7 May 2021, 

Mr. Obaika noted in correspondence to Plaintiff’s counsel that he had not received 

any affidavit(s) in support of Plaintiff’s motion for summary judgment and requested 

that counsel provide him with the same on 14 May 2021. Yet, counsel appears to 

have ignored this request and instead served the affidavit on Defendants less than 

48 hours before the 24 May 2021 hearing.

D. Plaintiff’s Violations and Apparent Violations of the Local Rules 

Constitute Gamesmanship

¶ 39 “[G]amesmanship and actions designed to minimize adequate notice to one’s 

adversary have no place within the principles of professionalism governing the 

conduct of participants in litigation.” Collins v. CSX Transp., Inc., 114 N.C. App. 14, 

20, 441 S.E.2d 150, 153 (1994) (internal marks omitted). Gamesmanship is both bad 

for the legal profession and the public it serves because it “leads to cynicism about 

whether justice prevails in our [] justice system.” State v. White, 372 N.C. 248, 256, 
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827 S.E.2d 80, 85 (2019) (Newby, J., dissenting). As our Court has noted with more 

frequency than should be necessary, the purpose of discovery and motions practice 

“is to facilitate the disclosure prior to trial of any unprivileged information that is 

relevant and material to the lawsuit so as to permit the receiving party to adequately 

prepare her case.” GEA, Inc. v. Luxury Auctions Mktg., Inc., 259 N.C. App. 443, 451, 

817 S.E.2d 422, 429 (2018) (internal marks and citation omitted). Discovery practice 

should be an “expeditious handling of factual information before trial so that the 

critical issues may be presented at trial unencumbered by unnecessary or specious 

issues and so that evidence at trial may flow smoothly and objections and other 

interruptions be minimized[,]” Willis v. Duke Power Co., 291 N.C. 19, 34, 229 S.E.2d 

191, 200 (1976), not an opportunity for gamesmanship.

¶ 40 Our Supreme Court has identified joining opposing counsel’s motion only to 

later engage in conduct inconsistent with joining the motion as an example of 

gamesmanship. See, e.g., State v. Sanderson, 336 N.C. 1, 10 n.2, 442 S.E.2d 33, 39 

n.2 (1994) (identifying as gamesmanship a prosecutor initially joining a defense 

attorney’s motion for a mistrial after the prosecutor elicited testimony the court had 

already ruled inadmissible and “then [the prosecutor] recanted” from joining the 

motion). Plaintiff’s counsel has engaged in precisely this sort of gamesmanship here. 

¶ 41 After joining the order concerning Mr. Copeland’s withdrawal from the case on 

18 January 2021, counsel caused an untimely motion for summary judgment to be 
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Opinion of the Court

served on Mr. Copeland rather than Defendants over three months later, and then, 

doubling down on this course, caused a notice of hearing to be served on Defendants

rather than Mr. Copeland a week after causing the motion to be served on Mr. 

Copeland.

¶ 42 It was only after Mr. Copeland withdrew on 3 February 2021 and Plaintiff’s 

counsel knew Defendants were unrepresented that counsel filed the untimely motion 

for summary judgment, served the motion and a supporting affidavit improperly, and 

noticed the motion for a hearing date that it does not appear counsel communicated 

with Defendants about, in violation of Local Rule 12.1. 

¶ 43 The course Plaintiff’s counsel chose—summary judgment by ambush on 

unrepresented parties—was unprofessional and unbecoming, as well as in violation 

of numerous rules. Defendants only received notice of the date of the hearing on 

Plaintiff’s motion for summary judgment—a date it does not appear either of them 

were consulted about—ten business days ahead of the hearing. Four days later, on 

14 May 2021, Mr. Obaika sent Plaintiff’s counsel an email in which he requested an

affidavit he would only be served with over a week later, less than 48 hours before 

the hearing, in violation of Local Rule 12.15. The brief without a file stamp in the 

record in support of Plaintiff’s motion, proper service of which therefore cannot be 

confirmed, was the first time Defendants received notice of any kind that Plaintiff 
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Opinion of the Court

was seeking summary judgment on Defendants’ counterclaim and affirmative 

defenses. 

¶ 44 The trial court nevertheless denied Defendants’ request for a continuance and 

granted summary judgment not only on Plaintiff’s claims but also against Defendants 

on their counterclaim—even though Plaintiff never moved for summary judgment on

Defendants’ counterclaim, nor properly noticed hearing for any motion on it—and 

refused to allow Defendants to proffer any evidence in response to Plaintiff’s evidence. 

At first, the trial court recognized and noted the improper notice that was given in 

the following colloquy with Plaintiff’s counsel: 

THE COURT: Let me stop you there, Ms. Austin, and ask 

you a question. In looking at your motion, is this on for 

both a motion for summary judgment and a motion to 

dismiss, or is it only on for a motion for summary 

judgment? Because you’re addressing what I believe is a 

motion to dismiss the counterclaim.

MS. AUSTIN: This is on for motion for summary 

judgment, Your Honor.

THE COURT: And in summary judgment, it’s your case 

against Defendant. But as to the Defendants’ case against 

you, the counterclaim is what you’re addressing by way of 

– I’m assuming you’re addressing it by way of request for a 

dismissal. But my only question is, was it notice for the 

dismissal as well, or can I even consider that? That’s my –

that’s my procedural question.

MS. AUSTIN: Sure. Well, I – the intent was always to 

address the counterclaim as part of our summary judgment 

motion. So the reason why I’m saying motion to – well, the 
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Opinion of the Court

reason why I’m saying motion to dismiss is – is – because 

the case law that I was just citing was referring to a motion 

to dismiss; right?

THE COURT: Okay.

MS. AUSTIN: So I – the – the – the Defendants fraud claim 

fails, number one, because based on the circumstances of 

the case, they failed to allege certain facts required to 

establish a fraud claim. But number two, there’s also been 

no evidence to suggest that there was any fraud.

THE COURT: I guess my – but my question is, are there 

two different motions before the Court, and only one has 

been noticed? That’s my question.

MS. AUSTIN: No. It’s just a motion for summary 

judgment, Your Honor.

THE COURT: How do you anticipate addressing the 

counterclaim then? Because that’s still – that will still be 

alive because the summary judgment addresses Plaintiff’s 

case, but it doesn’t address Defendants’ case.

MS. AUSTIN: Well, we’re asking that the Court grant

summary judgment in favor of Plaintiff on Plaintiff’s 

claims and to grant summary judgment on Defendants’ 

counterclaim. So, in other words, we’re arguing there’s no 

genuine issue of material fact for Defendant to move 

forward in its fraud –

THE COURT: Understood. Okay. Understood. Thank 

you. 

While the court clearly recognized that no hearing had been noticed as to the 

Defendants’ counterclaim, in the end the court just let it go. 

¶ 45 To recapitulate, Plaintiff noticed the motion for hearing on 7 May 2021 in 
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apparent violation of Local Rule 12.1, which requires “good faith consultation” about 

scheduling before noticing a hearing. See Meck. Cnty. Loc. R. 12.1. Although not in 

effect on 7 May 2021, this apparent violation would also today constitute an apparent 

violation of Rule 6 of the General Rules of Practice, which requires that “[a]n attorney 

scheduling a hearing on a motion [] make a good-faith effort to request a date for the 

hearing on which each interested party is available.” N.C. Super. and Dist. Ct. R. 6 

(2022). Our Supreme Court has specifically directed that “[a]n attorney’s failure to 

comply with th[e] [meet and confer] requirement is an adequate ground on which [a] 

court may grant a continuance.” Id. 

¶ 46 The motion was served on Defendants’ former counsel even though Plaintiff’s 

counsel had joined an order in which former counsel had withdrawn three months 

beforehand and then Plaintiff’s counsel served the notice on Defendants, not 

Defendants’ former counsel, a week after serving the motion on Defendant’s former 

counsel. Rules 6(d) and 56(c) of the North Carolina Rules of Civil Procedure required 

Plaintiff to serve the affidavit at least ten days before the 24 May 2021 hearing, which 

Plaintiff failed to do. No motion for summary judgment on Defendants’ counterclaim 

and affirmative defenses had been noticed prior to the 24 May 2021 hearing. The 

motion that was not actually served on Defendants until ten business days before the 

hearing did not address the counterclaim. The argument in the brief that was not 

served on Defendants until two business days before the hearing did not address the 
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Opinion of the Court

counterclaim. Local Rules 12.11(e) and 12.15(a) required Plaintiff to serve the 

affidavit and brief at least 48 hours before the hearing, which Plaintiff failed to do 

with respect to the affidavit, and in the absence of a file stamp on the brief in the 

record on appeal, we cannot say whether it was timely served under Local Rule 

12.11(e), but if it was served at the same time as the affidavit, it was not timely 

served. To remedy violations of Local Rule 12.11(e), Local Rule 12.11(g) specifically 

provides that “the Court may continue the hearing for a reasonable period of time, 

proceed with the hearing without considering the untimely served briefs, or take such 

action as justice requires.” Meck. Cnty. Loc. R. 12.11(g). We hold that the trial court 

abused its discretion when it denied Defendant’s request for a continuance here.

III. Conclusion

¶ 47 We vacate the order of the trial court and remand the case for further 

proceedings. On remand, the trial court may hold another summary judgment 

hearing on both Plaintiff and Defendants’ claims or entertain a motion to amend the 

scheduling order to change the dispositive motion deadline or trial date. 

VACATED AND REMANDED.

Judge DILLON concurs in result by separate opinion.

Judge TYSON dissents by separate opinion.
No. COA22-104 – D.V. Shah Corp. v. Vroombrands

DILLON, Judge, concurring in result.

¶ 48 I agree with our dissenting colleague on many points. For example, because 

Plaintiff’s complaint was verified and the allegations contained therein were 

sufficient to establish Plaintiff’s claim, even if Plaintiff’s affidavit was not timely, 

Defendant was not prejudiced by the trial court’s consideration of said affidavit. Also, 

I agree that Defendants failed to meet their burden to produce evidence showing how 

much, if any, Plaintiff’s damages for Defendants’ breach should be reduced because 

of Plaintiff’s failure to mitigate. 

¶ 49 However, as explained below, I conclude that the Order should be vacated.

¶ 50 Regarding Plaintiff’s breach of lease claims, Defendants were required to bring 

forth evidence at the summary judgment hearing to rebut Plaintiff’s verified 

complaint. Defendants failed to provide affidavits prior to the hearing, and 

Defendants’ answer was not verified. Defendant Victor Obaika did, though, attempt 

to provide live testimony at the hearing to show, for example, that Plaintiff committed 

fraud in the inducement as a defense to Plaintiff’s claims. The trial court, however, 

cut him off, stating, “I can’t accept your statements because it’s . . . testimonial. I 

can’t accept that in the context of a summary judgment hearing. . . . It has to be 

provided by way of an affidavit.” Clearly, the trial court believed that it lacked 

discretion to allow Defendant Obaika to testify.

¶ 51 Our General Assembly, though, has provided that at motion hearings, the trial 

court “may direct that the matter be heard wholly or partly on oral testimony[.]” N.C. 
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DILLON, J., concurring in result

Gen. Stat. § 1A-1, Rule 43(e). And our Supreme Court has held that a trial court may 

consider oral testimony under Rule 43(e) at a summary judgment hearing. Kessing 

v. National Mortg., 278 N.C. 523, 533, 180 S.E.2d 823, 829 (1971) (“Oral testimony 

may also be received [at a summary judgment hearing] by reason of Rule 43(e).”) 

¶ 52 Our Supreme Court has held that “there is error when the trial court refuses 

to exercise its discretion in the erroneous belief that it has no discretion as to the 

question presented.” State v. Lang, 301 N.C. 508, 510, 272 S.E.2d 123, 124 (1980). 

And such error is reversible where prejudice is shown. Id.

¶ 53 I conclude the record is sufficient to show prejudice. Defendants’ answer and 

counterclaim sets forth allegations which, if true, create an issue of fact regarding 

Plaintiff’s claims. Accordingly, the trial court’s grant of summary judgment for 

Plaintiff regarding its claims should be vacated.

¶ 54 Regarding Defendants’ counterclaims, while many allegations in Defendants’ 

counterclaims, in reality, provide a defense to Plaintiff’s claims, many also support 

claims for affirmative relief for Defendants. However, Plaintiff never noticed any 

motion for summary judgment regarding Defendants’ counterclaims. Accordingly, it 

was inappropriate for the trial court to grant summary judgment on Defendants’ 

counterclaims. 
No. COA22-104 – D.V. Shah Corp. v. Vroombrands

TYSON, Judge, dissenting.

I. Background 

¶ 55 Victor Obaika is the sole Member and Manager of Vroombrands, LLC, a 

limited liability company (“LLC” collectively “Defendants”). Plaintiff and LLC 

entered into a written and integrated commercial lease on 1 April 2018 for real 

property located in Gaffney, South Carolina to be used as a gas station and 

convenience store. The lease term was to commence on 1 April 2018 and expires on 

31 March 2023. Monthly rent was agreed to be $4,500.00 and due and payable on the 

first day of each month. LLC also agreed to pay the assessed real property taxes. 

Obaika personally guaranteed the complete performance of LLC’s obligations under 

the lease. LLC and Obaika also personally agreed in the event of a breach to pay all 

costs associated with any breach, including attorney’s fees.

¶ 56 Beginning 1 February 2019, LLC failed to pay the agreed-upon monthly rental. 

LLC also failed to pay real property taxes for the tax years 2018 and 2019. Plaintiff 

demanded LLC pay the overdue sums. LLC refused to do so. LLC vacated the leased 

premises on or about 1 Oct 2019. Plaintiff re-let the premises beginning 1 Aug 2020 

for a $1,000.00 monthly rental.

¶ 57 On 17 Oct 2019, Plaintiff instituted this action alleging breach of contract, 

seeking enforcement of the guaranty, and requested attorney’s fees for LLC’s 

nonpayment of rent beginning 1 February 2019 and nonpayment of real property 

taxes for the years 2018 and 2019. Defendants asserted affirmative defenses to 
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TYSON, J., dissenting

Plaintiffs claim and a counterclaim for fraudulent inducement. On 3 February 2021, 

the trial court granted defense counsel’s motion to withdraw as counsel for both 

Defendants. LLC failed to appear through counsel after receiving proper notice at the 

hearing on 24 May 2021. Defendant Obaika appeared pro se. 

¶ 58 The trial court granted Plaintiff’s motion for summary judgment for all claims 

in Plaintiff’s complaint and against Defendants’ Affirmative Defenses and 

Counterclaim. The trial court found Defendants owed $90,500.00, calculated as 

follows: past due rent from Feb 2019 to Oct 2019, plus future rent until premises relet 

to new tenant, with a credit of $4,500.00 security deposit held by Plaintiff, plus prorated real property taxes for 2018 and 2019. The trial court also awarded Plaintiff 

attorney’s fees of $12,578.35. Defendants appeal. 

II. Issue

¶ 59 Defendants argue the trial court erred in granting summary judgment on 

Plaintiff’s breach of contract claims. 

III. Standard of Review 

¶ 60 “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)). 
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TYSON, J., dissenting

¶ 61 “The party moving for summary judgment bears the burden of establishing 

that there is no triable issue of material fact.” DeWitt v. Eveready Battery Co., 355 

N.C. 672, 681, 565 S.E.2d 140, 146 (2002) (citation omitted). A party may meet this 

burden “by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce 

evidence to support an essential element of his claim or cannot surmount an 

affirmative defense which would bar the claim.” Id. (citation and quotation marks 

omitted). 

¶ 62 A genuine issue of material fact is one supported by evidence that would 

“persuade a reasonable mind to accept a conclusion.” Liberty Mut. Ins. Co. v. 

Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 124 (2002) (citation omitted). “An 

issue is material if the facts alleged would . . . affect the result of the action[.]” Koontz 

v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). 

¶ 63 When the court reviews the proffers of evidence, verified complaint and 

affidavits at summary judgment, “[a]ll inferences of fact from the proofs offered at 

the hearing must be drawn against the movant and in favor of the party opposing the 

motion.” Boudreau v. Baughman, 322 N.C. 331, 343, 368 S.E.2d 849, 858 (1998) 

(citation omitted). We review the grant of summary judgment de novo. Id. 

IV. Issues of Material Fact 

¶ 64 Defendants argue summary judgment was not appropriate to resolve
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TYSON, J., dissenting

Plaintiff’s claims because of the existence of at least three genuine issues of material 

fact: First, Defendants contend Plaintiff’s evidence raises a genuine issue of material 

fact regarding whether Plaintiff owns the leased property. Second, Defendants 

contend Plaintiff’s evidence raises a genuine issue of material fact of whether Plaintiff 

reasonably mitigated its damages. Finally, Defendants assert Plaintiff’s own 

evidence raises a genuine issue of material fact regarding whether Plaintiff properly 

calculated and is entitled to receive its requested $90,500 award of compensatory 

damages.

¶ 65 Plaintiff argues the undisputed evidence demonstrated the Defendants 

breached the parties’ contract as a matter of law, and the burden shifted to the 

Defendants to set forth specific facts showing the existence of a genuine issue of fact. 

Plaintiff argues Defendants failed to proffer or submit any facts demonstrating the 

existence of a genuine issue of material fact. Defendants failed to present any 

evidence to demonstrate Plaintiff does not own the leased property. The trial court 

correctly entered summary judgment as a matter of law on Defendant LLC’s breach 

of lease for Plaintiff on this issue. 

¶ 66 Defendants also failed to proffer evidence tending to show Plaintiff failed to 

reasonably mitigate its damages. In North Carolina, the non-breaching party to a 

lease has a duty to mitigate his damages upon the other party’s breach of the lease. 

Chapel Hill Cinemas, Inc. v. Robbins,143 N.C. App. 571, 582, 547 S.E.2d 462, 470 
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TYSON, J., dissenting

(Tyson, J., concurring in part and dissenting in part), rev’d per curiam for reasons 

stated in the dissent, 354 N.C. 349, 554 S.E.2d 644 (2001); see also Isbey v. Crews, 55 

N.C. App. 47, 51, 284 S.E.2d 534, 537 (1981). 

¶ 67 A plaintiff’s duty to mitigate damages following a defendant's breach is a duty 

that arises as a matter of law. See, e.g., Tillis v. Calvine Cotton Mills, Inc., 251 N.C. 

359, 367-68, 111 S.E.2d 606, 613 (1959) (citation omitted) (explaining a party is 

“required by law to exercise reasonable diligence to minimize damages”); Gibbs v. 

Telegraph Co., 196 N.C. 516, 522 146 S.E. 209, 213 (1929) (citations omitted) (“[I]t is 

a well-settled rule of law that the party who is wronged is required to use due care to 

minimize the loss.”). “[T]he duty to mitigate “stems from the implied covenant of good 

faith and fair dealings” inherent in all contracts.” See New Towne Limited 

Partnership, 113 Ohio App.3d 104, 108, 680 N.E.2d 644, 646 (1996); Barker, 

Commercial Landlords' Duty Upon Tenants' Abandonment—To Mitigate?, 20 J. Corp. 

L. 627, 644 (1995).

¶ 68 It is undisputed that Defendant LLC, while in admitted breach of the lease, 

vacated the premises on 1 Oct 2019 and Plaintiff relet the premises as of 1 Aug 2020. 

Defendant presented no evidence of Plaintiff’s lack of efforts or unreasonable delay to 

seek a new tenant to lease the property. 

¶ 69 Plaintiff reasonably relet the premises during the COVID-19 pandemic and 

within one year of the breach. Defendants failed to challenge or demonstrate that 
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TYSON, J., dissenting

Plaintiff is not entitled to receive the $90,500.00 award of compensatory damages. 

From Defendants’ first missed lease payment on 1 February 2019 until they vacated 

the premises on 1 October 2019, $4,500.00 monthly rent due multiplied by the eightmonth period equals $36,000.00. From 1 October 2019 when Defendants vacated 

until 1 August 2020 when Plaintiff relet premises, $4,500.00 of missed monthly rent 

multiplied by the eleven-month period equals $49,500.00. 

¶ 70 Defendants also argue the pro-rated property taxes for six months of 2018 and 

nine months of 2019 at $6,000.00 and $8,000.00, respectively, were less than the 

correctly calculated amount. Defendants have failed to show the trial judge’s 

calculations were unreasonable or any error in these calculations. Judge Dillon and 

I agree: “Defendants failed to meet their burden to produce evidence showing how 

much, if any, Plaintiff’s damages for Defendants’ breach should be reduced because 

of Plaintiff’s failure to mitigate.” Defendants’ arguments are without merit, are 

properly overruled on all of Plaintiff’s claims, and summary judgment was properly 

entered thereon. 

V. Untimely Affidavit 

¶ 71 Defendants argue Plaintiff failed to timely serve and file its Supportive 

Affidavit. Defendants contend the North Carolina Rules of Civil Procedure require 

Plaintiff to serve its Supportive Affidavit at least ten days before the scheduled 

hearing and Plaintiff had served Defendants on 20 May 2021, four days before the 
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TYSON, J., dissenting

scheduled hearing on 24 May 2021. Defendants also contend the local rules in 

Mecklenburg County require Plaintiff to file its Supporting Affidavit no later than 

two business days before the hearing. Plaintiffs filed on 27 May 2021, seven days 

after the deadline. Defendants argue they were prejudiced by the untimely service 

because they were not given proper time to prepare for the hearing. 

¶ 72 Plaintiff argues the local Mecklenburg County Rule 12.15(a) permits copies of 

affidavits to be served on the opposing party “no later than two business days before 

the hearing date.” Meck. Cnty. Loc. R. Civ. P. 12.15(a). Plaintiff contends Defendants 

were timely served with the Supporting Affidavit under this rule. Id. Plaintiff 

contends there was no issue of material fact without regard to the Supporting 

Affidavit. The lease and documents and Defendants’ defaults and non-payments 

thereon speak for themselves. Only a question of law was present. 

¶ 73 Plaintiff argues Defendants must show on appeal any alleged error in 

considering the affidavit was prejudicial rather than harmless. An abuse of discretion 

standard of review requires deferential review to the trial judge’s decision. Scheffer 

v. Dalton, 243 N.C. App. 548, 553-54, 777 S.E.2d 534, 539-40 (2015). Defendants’ 

burden is to show prejudicial error, i.e., a different result would have likely ensued 

had the error not occurred. Id.

¶ 74 The trial judge’s decision to permit the asserted untimely service and filing of 

the affidavit was not prejudicial to the Defendants. The evidence presented at trial 
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TYSON, J., dissenting

showed no issue of material fact existed to deny Plaintiff’s claims. Both parties 

conceded to a breach of the lease and non-payment. Defendants presented no 

evidence otherwise. Judge Dillon and I also agree on this issue: “Plaintiff’s complaint 

was verified and the allegations contained therein were sufficient to establish 

Plaintiff’s claim, even if Plaintiff’s affidavit was not timely, Defendant was not 

prejudiced by the trial court’s consideration of said affidavit.” Defendant’s arguments 

are without merit.

VI. Fraudulent Inducement Counterclaim 

¶ 75 Defendants argue the trial court erred in granting summary judgment because 

genuine disputes of material facts are generally inherent in fraudulent inducement 

claims and are evident in this case. 

¶ 76 Plaintiff argues summary judgment on Defendants’ fraud claim was proper 

because Defendants failed to properly allege fraud with particularity and neither 

proffered nor produced any evidence tending to establish any element of their 

purported fraud claim. 

¶ 77 Summary judgment is granted where the claimants fail to produce evidence of 

reasonable reliance or of the opposing party’s scienter. RD&J Props. v. LauraleaDilton Enters., LLC, 165 N.C. App. 737, 744-748, 600 S.E.2d 492, 498-500 (2004). 

Defendants have provided no evidence tending to show Plaintiff’s scienter or that 

their own reliance thereon was reasonable. The trial court properly granted summary 
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TYSON, J., dissenting

judgement on Defendants’ fraud claim. Id.

VII. Defendants’ Proffer 

¶ 78 Defendants argue the trial court erred in prohibiting Defendant as an 

individual from presenting oral testimony in lieu of a written affidavit. Defendants 

contend Rule 43(e) of the North Carolina Rules of Civil Procedure expressly permits 

admission of oral testimony during a summary judgment hearing in lieu of or in 

addition to written affidavits. See N.C. Gen. Stat. § 1A-1, Rule 43(e) (2021). 

¶ 79 Plaintiff argues the trial court did not abuse its discretion by not allowing 

Defendant individual to testify because Defendants, together or individually, had 

produced no evidence in discovery or in opposition to the motion for summary 

judgment and, having failed to do so, could not make their entire case on oral 

testimony at the hearing and demonstrate prejudice in the trial court’s discretionary 

decision.

¶ 80 Abuse of discretion review requires our Court’s deference to the decision-maker 

and is a difficult burden to overcome. Scheffer, 243 N.C. App. at 554, 777 S.E.2d at 

540. Defendants cannot demonstrate prohibiting Defendant Obaika’s individual oral 

testimony, even if improper, was prejudicial in the face of admitted default. Id.

¶ 81 Defendants failed to present any evidence supporting their affirmative 

defenses and counterclaim, either during discovery and for the more than six months 

between November 2020, after their counsel was allowed by court order to withdraw 
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TYSON, J., dissenting

on 3 February, 2021, and the May 2021 hearing or by filing any affidavit prior to the 

hearing. Defendants have failed to show any abuse in the trial court’s decision not to 

allow or hear oral testimony at the hearing, after Defendants failed to provide 

discovery or to proffer affidavits in advance of the hearing. Id.

VIII. Notice 

¶ 82 Defendants argue the trial court reversibly erred by entering summary 

judgment against Defendants’ counterclaim without proper notice. Defendants 

contend Plaintiff first mentioned its intent to also seek summary judgment against 

Defendants’ counterclaim in its Supporting Affidavit.

¶ 83 On 3 February 2021 the trial court granted Defendants’ former counsel’s 

motion to withdraw as counsel of record. Defendants had received prior notice of 

their counsel’s motion to withdraw. 

¶ 84 Plaintiff filed its motion for summary judgment on 29 April 2021. The plurality 

opinion finds reversible error in the trial court’s admittedly discretionary ruling in 

not affording notice pursuant to Local Rule 12.1, which requires “good faith 

consultation” about scheduling before noticing a hearing.” Meck. Cnty. Loc. R. 12.1. 

¶ 85 Defendants did not seek substituted or replacement counsel in the three 

months after their counsel had withdrawn and the motion for summary judgment 

was filed. Defendants were on notice to seek replacement counsel, if they deemed it 

prudent. Defendant Obaika is not a licensed attorney and the trial court correctly 
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TYSON, J., dissenting

ruled he could not represent the LLC at the hearing.

¶ 86 Defendants did not retain replacement counsel after withdrawal of prior 

counsel or after the motion for summary judgment was filed. “The 10-day notice 

required by Rule 56 can be waived by a party.” Raintree Corp. v. Rowe, 38 N.C. App. 

664, 667, 248 S.E.2d 904, 907 (1978). Defendants failed to seek new counsel after 

withdrawal or in the face of a dispositive motion. They waived notice and cannot 

show any abuse of discretion by the trial court by their failure to do so and appear 

pro se. Obaika, a non-lawyer, cannot represent the LLC in court against Plaintiff’s 

claims or assert any of the LLC’s counterclaims. The trial court’s order is properly 

affirmed. 

IX. Conclusion 

¶ 87 Our Supreme Court has held that when the parties have only moved for partial 

summary judgment, it is not an abuse of discretion or reversible error for the trial 

court to grant summary judgment on all claims, if both parties are given the prior 

opportunity to submit evidence on all claims pending before the trial court and no 

genuine issues of material fact exist. A-S-P Associates v. City of Raleigh, 298 N.C. 

207, 212, 258 S.E.2d 444, 448 (1979). 

¶ 88 Defendants and Plaintiff were given the opportunity to submit evidence of all 

the claims brought and pending before the trial court. Defendants had the 

opportunity to seek replacement counsel for months after prior counsel had 
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TYSON, J., dissenting

withdrawn by court order, but failed to do so. Defendants failed to provide any 

evidence to support their claims during discovery through the properly scheduled 

hearing. Any purported error on the timing of the Plaintiff’s Supporting Affidavit 

was waived. 

¶ 89 The issues before the court were questions of law on the applicability of a 

written lease, guaranty, and contract documents. Defendant LLC’s admitted 

material breaches thereof, and Obaika’s unconditional guaranty were not in dispute. 

Plaintiff’s efforts to mitigate Defendants’ breaches and damages were not shown to 

be unreasonable. The trial court’s discretionary rulings and the summary judgment 

entered is not affected by error of law and is properly affirmed. I respectfully dissent.