An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 defendantappellant.

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 
-2-

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 
-3-

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 
-4-

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)).
-5-

“[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.
-6-

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 
-7-

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 
-8-

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).