An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA13-598
                       NORTH CAROLINA COURT OF APPEALS

                             Filed:     7 January 2014


JEFFREYS LEASING COMPANY,
     Plaintiff

      v.                                      Wayne County
                                              No. 11 CVS 2501
SHAMSUDDIN N. GILLANI,
     Defendant


      Appeal by defendant from order entered 14 December 2012 by

Judge J. Carlton Cole in Wayne County Superior Court.                     Heard in

the Court of Appeals 9 October 2013.


      Ward and Smith, P.A., by Tyler J. Russell and E. Bradley
      Evans, for plaintiff-appellee.

      David R. Payne, P.A., by David R. Payne, for defendant-
      appellant.


      CALABRIA, Judge.


      Shamsuddin N. Gillani (“defendant”) appeals from the trial

court’s order granting summary judgment in favor of Jeffreys

Leasing Company (“plaintiff”).           We affirm.

                                 I. Background

      On 20 April 2009, plaintiff entered into a lease agreement

with Sapna Hotel Group of Peachtree City, LLC, d/b/a Hampton Inn
                                          -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).
