ERVIN, Judge.
Plaintiff Pamela Rankin appeals from an order granting summary judgment in favor of Defendants Food Lion d/b/a Delhaize American Inc.; Food Lion, Inc.; Food Town Stores, Inc.; and Food Lion Store # 276
On 29 May 2009, Plaintiff filed an unverified complaint against Defendants in which she alleged that, while shopping at Food Lion Store #276 in Charlotte, North Carolina, on 24 June 2006, she slipped and fell in spilled soda while proceeding through the checkout line and sustained serious injuries. Plaintiff asserted that her injuries proximately resulted from Defendants' breach of their duty to maintain the store's floors in a safe manner, entitling her to recover compensatory and punitive damages.
On 16 October 2009, Defendants filed an answer in which they denied the material allegations of Plaintiff's complaint and sought dismissal of her claim. Defendant Food Lion Store #276 moved to dismiss Plaintiff's claim on the grounds that "it is not an entity and therefore cannot be sued," while all Defendants jointly moved that Plaintiff's complaint be dismissed pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(7), for failure to join a necessary party and, pursuant to N.C. Gen. Stat. § 1A-1, Rules 12(b)(4) and (5), for "lack of jurisdiction over the person, insufficiency of process and insufficiency of service of process." Defendants also disputed the validity of Plaintiff's claim for punitive damages.
On 21 October 2009, Defendants filed a motion for summary judgment in which they alleged, in pertinent part, that:
In support of their summary judgment motion, Defendants submitted the affidavit of Jason D. Stevens, Senior Corporate Counsel for Food Lion, LLC, in which Mr. Stevens asserted, among other things, that (1) Defendant Food Lion Store # 276 is not a legal entity; (2) neither Defendant Food Lion, Inc., nor Defendant Food Town Stores, Inc., currently exists; and (3) Defendant Delhaize America, Inc., is a holding company with no role in the operation of the Food Lion store in which Plaintiff allegedly fell. On 1 December 2009, the trial court conducted a hearing on Defendants' summary judgment motion and granted summary judgment in Defendants' favor. Plaintiff noted an appeal to this Court from the trial court's order.
A trial court properly grants summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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." N.C. Gen. Stat. § 1A-1, Rule 56(c) (2010). As a result, the "standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law." Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). The movant "has the burden of establishing the lack of any triable issue of fact." Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). "`When considering a motion for summary judgment, the trial judge must view the presented evidence in a light most favorable to the nonmoving party.'"
First, Plaintiff argues that the trial court erred by entering summary judgment in favor of Defendants on the grounds that "the evidence of record clearly establishes that the Defendant, Food Lion's legal owner, as registered with the Secretary of State for the State of North Carolina is Delhaize America, Inc." A careful review of the record demonstrates, however, that the materials upon which Plaintiff relies in support of this assertion are not admissible and could not, for that reason, have been properly considered by the trial court in ruling on Defendants' summary judgment motion.
The essential basis upon which Defendants sought summary judgment with respect to Plaintiff's negligence claim was that Defendant Delhaize America, Inc., had no control over the Food Lion store where Plaintiff allegedly fell; that Defendant Food Lion # 276 is not a legal entity capable of suing and being sued; and that the remaining two defendants, Food Lion, Inc., and Food Town Stores, Inc., no longer exist. In addition, Defendants asserted that Food Lion, LLC, is the corporate entity that operates the Food Lion store in which Plaintiff allegedly fell; that Plaintiff had not named Food Lion, LLC, as a party defendant; and that Plaintiff could no longer join Food Lion, LLC, as a party defendant because the statute of limitations applicable to Plaintiff's claim had expired. In his affidavit in support of Defendants' motion, Mr. Stevens stated that, as senior corporate counsel for Food Lion, LLC, he was "familiar with the corporate form, history and relationship between Food Lion, LLC and Delhaize America Inc." In addition, Mr. Stevens asserted that:
As a result, the information contained in Mr. Stevens' affidavit establishes that none of the Defendants are legally liable for the alleged negligence of employees at Food Lion Store # 276. For that reason, we conclude that Defendants adequately supported their request for the entry of summary judgment.
"`Once the party seeking summary judgment makes the required showing, the burden shifts to the nonmoving party to produce a forecast of evidence demonstrating specific facts, as opposed to allegations, showing that he can at least establish a prima facie case at trial.'" Pacheco v. Rogers and Breece, Inc., 157 N.C. App. 445, 448, 579 S.E.2d 505, 507 (2003) (quoting Gaunt v. Pittaway, 139 N.C. App. 778, 784-85, 534 S.E.2d 660, 664 (2000), cert. denied, 353 N.C. 371, 547 S.E.2d 810 (2001)). "`To hold otherwise. . . would
In challenging the trial court's order granting summary judgment on appeal, Plaintiff does not dispute the validity of Defendants' contentions that Defendant Food Lion Store # 276 is not a legal entity and that neither Defendant Food Lion Inc., nor Defendant Food Town Stores, Inc., currently exists. Instead, Plaintiff seeks reversal of the trial court's order on the grounds that she presented evidence that the Food Lion store in which Plaintiff was injured is owned by Defendant Delhaize America, Inc., an assertion based on two documents included in the record, both of which appear to be printouts of internet website pages. One of these documents appears to consist of a page printed from the website of the North Carolina Secretary of State, while the other appears to consist of an internet posting concerning Defendant Delhaize America, Inc. As a result, we must examine the admissibility of each of these documents in order to determine whether they suffice to require a denial of Defendants' summary judgment motion.
According to N.C. Gen.Stat. § 1A-1, Rule 56(e):
Furthermore:
Wein II, LLC v. Porter, 198 N.C. App. 472, 476-77, 683 S.E.2d 707, 711 (2009) (quoting Strickland v. Doe, 156 N.C. App. 292, 295, 577 S.E.2d 124, 128 (2003), disc. review denied, 357 N.C. 169, 581 S.E.2d 447 (2003), and In Re Foreclosure of Brown, 156 N.C. App. 477, 487, 577 S.E.2d 398, 405 (2003)). Thus, "[h]earsay matters . . . should not be considered by a trial court in entertaining a party's motion for summary judgment." Moore v. Coachmen Industries, Inc., 129 N.C. App. 389, 394, 499 S.E.2d 772, 776 (1998) (citing Savings & Loan Assoc. v. Branch Banking & Trust Co., 282 N.C. 44, 52, 191 S.E.2d 683, 688-89 (1972)).
A careful examination of the documents upon which Plaintiff bases her challenges to the trial court's order demonstrates that they fail to meet the admissibility requirement of N.C. Gen.Stat. § 1A-1, Rule 56(e). Although Plaintiff characterizes these documents as "undisputed evidence of record" and argues that they establish that Defendant Delhaize America, Inc., is "Food Lion's legal owner," she failed to properly authenticate these documents at the time that she submitted them in opposition to Defendants' request for summary judgment. As a result, contrary to Plaintiff's contention, the trial court was not authorized to consider either document in evaluating the validity of Defendants' request for summary judgment.
In addition, N.C. Gen.Stat. § 8C-1, Rule 902, provides, among other things, that "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:
The record contains no evidence that, at the time that Defendants' summary judgment motion was heard before the trial court, Plaintiff offered any evidence tending to show what the documents in question were, failed to proffer certified copies of either document, and did not make any other effort to authenticate these documents. As a result, we must necessarily conclude that neither of these documents was authenticated in the manner required by N.C. Gen.Stat. § 8C-1, Rules 901 or 902, demonstrating that neither of them was properly before the trial court at the time of the hearing on Defendants' summary judgment motion.
Furthermore, N.C. Gen.Stat. § 8C-1, Rule 801(c), defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The documents upon which Plaintiff relies clearly amount to out-of-court statements that Plaintiff seeks to introduce in reliance upon the truth of their contents. For that reason, the documents in question constitute "unauthenticated hearsay[, and are] . . . analogous to the newspaper articles that courts in this circuit have frequently recognized as hearsay." Williamson v. Prince George's County, 2011 WL 280961, 2011 U.S. Dist. LEXIS 7518 (26 January 2011) (citing United States v. Heijnen, 149 Fed.Appx. 165, 169 (4th Cir.2005), cert. denied, 552 U.S. 1051, 128 S.Ct. 677, 169 L.Ed.2d 530 (2007) (concluding that "documents downloaded from the internet . . . are hearsay"), and Gantt v. Whitaker, 57 Fed. Appx. 141, 150 (4th Cir.2003) (stating that "[t]his circuit has consistently held that newspaper articles are inadmissible hearsay to the extent that they are introduced to prove the factual matters asserted therein")). Thus, we conclude that the documents cited by Plaintiff were inadmissible at trial and were properly ignored by the trial court for this reason as well. In view of the inadmissibility of the documents upon which Plaintiff relies, we need not address Plaintiff's arguments concerning their legal significance.
We also observe that Plaintiff did not submit any affidavits or other sworn testimony in response to Defendants' summary judgment motion. "`A verified complaint may be treated as an affidavit if it (1) is made on personal knowledge, (2) sets forth such facts as would be admissible in evidence, and (3) shows affirmatively that the affiant is competent to testify to the matters stated therein.'" Merritt, Flebotte, Wilson, Webb & Caruso, PLLC v. Hemmings, 196 N.C. App. 600, 605, 676 S.E.2d 79, 83-84 (2009) (quoting Page v. Sloan, 281 N.C. 697, 705, 190 S.E.2d 189, 194 (1972)). On the other hand, "the trial court may not consider an unverified pleading when ruling on a motion
Next, Plaintiff argues that the trial court erred by granting summary judgment for Defendants on the grounds that "the evidence of record" establishes that Plaintiff properly served a summons and complaint on Defendant Delhaize America, Inc.; that Defendant Delhaize America, Inc., is "the legal owner of Food Lion, according to records provided to the Secretary of State of North Carolina;" and that "[i]t cannot be disputed, as a matter of public record, that Delhaize America, Inc., owns Food Lion, Inc." However, Plaintiff cites only the documents that we have already determined to be inadmissible in support of this argument, a fact that renders it without merit for the reasons discussed above.
Finally, Plaintiff argues, in reliance on the documents that we have previously found to be inadmissible, that the trial court erred by "fail[ing] to consider the Plaintiff's proof of evidence of public record." For the reasons we have already discussed, we conclude that, to the extent that the trial court did, in fact, disregard Plaintiff's exhibits, it did not err by acting in that manner. Thus, this aspect of Plaintiff's challenge to the trial court's order lacks merit as well.
In G & S Business Services v. Fast Fare, Inc., 94 N.C. App. 483, 486-87, 380 S.E.2d 792, 794, disc. review denied, 325 N.C. 546, 385 S.E.2d 497 (1989), the plaintiff sued Fast Fare, Inc., and Jerry Hill for non-payment of an account for services and materials. In seeking collection of the unpaid account, Plaintiff alleged that defendant Hill was believed to be a proprietor of a Fast Fare convenience store or a manager or director of Fast Fare, Inc. "In support of their motion to dismiss, defendants offered the affidavit of defendant Hill which stated facts showing Hill had no ownership interest in the corporate defendant Fast Fare, was in fact an employee of Fast Fare, and had otherwise incurred no personal liability on any corporate obligation between Fast Fare and plaintiff." This Court upheld the trial court's decision to grant summary judgment in favor of defendant Hill, noting that "Plaintiff did not respond to defendants' motion for summary judgment with any supporting materials of its own" and that "Defendant Hill's affidavit, if true, establishes that he was not liable to plaintiff on any corporate obligation of Fast Fare." Utilizing similar logic, and based on our determination that the internet printouts upon which Plaintiff relies do not constitute admissible evidence for purpose of the analysis required in connection with the consideration of Defendants' summary judgment motion, we conclude that the trial court did not err by entering summary judgment for Defendants and that its order should be, and hereby is, affirmed.
AFFIRMED.
Judges BRYANT and STEELMAN concur.
