Santos v. Briones

• Decision Date: 18 January 2011
• Docket Number: No. 08-CVD-21331,NO. COA09-1563,08-CVD-21331,COA09-1563
• Court: North Carolina Court of Appeals
• Parties: ARMANDO O. SANTOS, and MARISOL SARMIENTO, Plaintiffs, v. MARIA TERESA HERNANDEZ BRIONES, Defendant.

ARMANDO O. SANTOS, and MARISOL SARMIENTO, Plaintiffs,

v.MARIA TERESA HERNANDEZ BRIONES, Defendant.

No. 08-CVD-21331

NO. COA09-1563

NORTH CAROLINA COURT OF APPEALS.

Filed January 18, 2011

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

Appeal by Defendant from judgment entered 19 March 2009 by Judge Robert B. Rader in Wake County District Court. Heard in the Court of Appeals 18 August 2010.

No brief for Plaintiffs-Appellees.

Douglass & Douglass, byThomas G. Douglass, for Defendant-Appellant.

STEPHENS, Judge.

Factual and Procedural Background On 3 July 2007, Plaintiff Armando O. Santos ("Santos") and Defendant Maria Teresa Hernandez Briones ("Defendant") entered into a written agreement for Defendant's sublease of the commercial premises located at 3030 and 3032 Capital Boulevard in Raleigh, North Carolina.¹ By the terms of the sublease agreement, Defendant would operate a tire business and makerental payments of $5,000 per month to Santos for the 3032 lot. This rental amount would increase each year by the terms set forth in the lease.

Between January and May 2008, Santos and Defendant carried on a romantic relationship, during which Santos operated the tire business. In June 2008, following a dispute in which Defendant accused Santos of stealing from the tire business, Defendant assumed operation of the business.

Between July and October 2008, Defendant made only partial rental payments on both properties. According to Santos, the total amount of unpaid rent in that period was $12,850.

On 5 November 2008, Santos sent a letter to Defendant, notifying her that she was in default under the sublease agreement and informing her that "failure to pay all sums due and owning [sic] within ten (10) days of the date of this letter" would result in Santos exercising any of his available remedies under Paragraph 11 of the sublease agreement. Paragraph 11 of the sublease agreement provides that Santos may terminate the sublease or re-enter the premises if Defendant breaches a covenant in the lease and that breach continues for ten days after Defendant receives written notice from Santos.

Upon receipt of the 5 November 2008 letter, Defendant tendered to Santos two checks, one for $5,350, the November 2008 rental amount for the 3032 lot, and one for $6,000, the November 2008 rental amount for the 3030 lot. On each of these checks Defendant indicated that the money was tendered as payment forthe November 2008 rent. However, upon receipt of these checks, Santos made a note on the 5 November 2008 letter indicating he was applying the amounts from the checks to the balance of prior unpaid rent. Santos received no other payments from Defendant at that time.

On 18 November 2008, Santos filed a Complaint in Summary Ejectment in the Small Claims Division of Wake County District Court; the complaint was amended on 19 November 2008. The original and amended complaints were filed on an Administrative Office of the Courts ("AOC") "Complaint in Summary Ejectment" form. In the amended complaint, Santos alleged that Defendant failed to pay the $11,750 rent due on 1 November 2008 for both lots, and that Santos made a demand for the rent and waited the 10-day grace period before filing the complaint. The amended complaint further alleged that Defendant owed Santos $12,850 in past-due rent. In her answer to Santos' complaint, Defendant denied the allegations in the complaint.

On 8 December 2008, the case was heard before a magistrate, who dismissed the action with prejudice. Santos appealed to Wake County District Court. On 18 March 2009, the case was heard at a bench trial before the Honorable Robert B. Rader, Wake County District Court Judge.

At the trial, over objection by Defendant's counsel, Judge Rader allowed Santos to present evidence showing that Defendant failed to pay the full monthly rental amount between July and December 2008. Subsequently, Defendant testified that she had indeed paid less than the full rental amount during those months.

Following the trial, Judge Rader entered judgment in favor of Santos, making the following pertinent findings of fact and conclusions of law:

FINDINGS OF FACT

....

13.That the Defendant made regular rent payments as required under the terms of the lease until July 2008, when she [began] to make partial payments.

14.That as a result of the Defendant's failure to make full rental payments, the following rent was still due and owing at the time of filing this action[:]

July 2008 $1,350.00

Aug. 2008 $1,350.00

Sept. 2008 $1,723.00

Oct. 2008 $1,723.00

15. That the Plaintiff, Armando Santos, notified the Defendant in writing on November 5, 2008, that she was in default of the sublease agreement for failure to pay rent in a timely manner and that her failure to pay all sums due and owing within 10 days would result in his exercising his remedies under Paragraph 11 of the sublease agreement. (Defendant's Exhibit #1)

16. That the Defendant during her testimony admitted that she had not paid all of the rent for the months of July through October of 2008 and subsequently attributed failure to pay the rent to the fact that she had "a lot of bills due."

....

18. That despite the demands of the Plaintiff, Armando Santos, theDefendant has not paid the aforementioned past due rent for the months of July, August, September and October of 2008.

....

22. That the Plaintiff, Armando Santos, represented to the court that he is seeking only possession of the premises at 3032 Capital Boulevard, Raleigh, North Carolina 27604 and no other relief.

....

CONCLUSIONS OF LAW

....

3. That Defendant's failure to pay rent in full for the months of July, August, September and October of 2008 constitutes a breach of the sublease agreement.

4. That the Plaintiff, Armando Santos, is entitled to recover possession of the premises from the Defendant.

Following the trial court's judgment, Defendant filed a motion to set aside the judgment and a motion for a new trial. Upon Judge Rader's denial of both motions, Defendant appealed the District Court's judgment to this Court.

Discussion

I. Admission of Evidence of Unpaid Rent

Defendant's first argument on appeal concerns the trial court's consideration of Santos' evidence of unpaid rent between July and October 2008. Defendant contends the trial court erred in failing to sustain Defendant's objection to this evidence on the grounds that such evidence was not within the issues raisedby the pleadings. Defendant's contention is based on the premise that Santos' complaint sought ejectment based solely on Defendant's failure to pay the full monthly rental amount for November 2008. Based on this "material and fatal variance between pleading and proof," Defendant argues that the trial court should have sustained Defendant's objection, and that failure to do so prejudiced Defendant.

Traditionally, the North Carolina rule was that "[t]he plaintiff must make out her case secundum allegata [(i.e., according to the allegations)] and the court cannot take notice of any proof unless there be a corresponding allegation." Whichard v. Lipe, 221 N.C. 53, 54, 19 S.E.2d 14, 15 (1942); see also Lucas v. White, 248 N.C. 38, 42, 102 S.E.2d 387, 390 (1958) (holding that "where there is a material variance between the allegation and proof, such defect may be taken advantage of by motion for judgment as of nonsuit"). The purpose of the variance rule was to ensure that "defendants will not be left in doubt as to how to answer and what defense to make." Bowen v. Darden, 233 N.C. 443, 446, 64 S.E.2d 285, 287 (1951).

However, Rule 15(b) of the North Carolina Rules of Civil Procedure added significant flexibility to the traditional doctrine of variance.² See Roberts v. Memorial Park, 2 81 N.C. 48, 58, 187 S.E.2d 721, 726 (1972) (noting that "[t]he thrust of [Rule 15(b)] seems to destroy the former strict code doctrine of variance by allowing issues to be raised by liberal amendments to pleadings and, in some cases, by the evidence"). Specifically, N.C. Gen. Stat. § 1A-1, Rule 15(b) provides as follows:

If evidence is objected to at the trial on the ground that it is not within the issues raised by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be served thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

N.C. Gen. Stat. § 1A-1, Rule 15(b) (2009).

Presumably, Defendant would have had the trial court sustain her objection to the evidence and either (1) proceed with the trial solely on the issue of the November 2008 rent, or (2) allow the pleadings to be amended and grant a continuance to enable Defendant to meet the allegations of unpaid rent between July and October 2008. However, although Defendant appropriately raised her objection under Rule 15(b), we are not convinced that evidence of the unpaid rent between July and October 2008 was not "within the issues raised by the pleadings."

Santos filed his amended complaint in this case on an AOC summary ejectment complaint form. The statutes that provide for the creation of this type of form complaint contemplate a small claim complaint marked by "simplicity and brevity." N.C. Gen. Stat § 7A-216 (2009); N.C. Gen. Stat § 7A-232 (2009). The AOCcomplaint form provides empty boxes in which a complainant can enter information regarding the subject premises of the complaint, the rate and due date of rent, and the total amount due to the complainant. The form complaint also contains preprinted wording referencing the various boxes. The pre-printed wording, read together with the information...