An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1442
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 20 May 2014


FIA CARD SERVICES, N.A.,
     Plaintiff,

      v.                                      Wake County
                                              No. 11 CVD 16592
CHRIS CAVINESS,
a/k/a JOHN CHRISTOPHER CAVINESS
     Defendant.


      Appeal by defendant from order entered 26 April 2013 by

Judge Margaret P. Eagles in Wake County District Court.                       Heard

in the Court of Appeals 23 April 2014.


      Sessoms & Rogers, P.A., by Andrew E. Hoke and Mitchell A.
      Meyers, for plaintiff.

      Bryant Duke Paris, III, for defendant.


      ELMORE, Judge.

      Defendant timely appeals from an order entered 26 April

2013 granting plaintiff’s motion for summary judgment.                        After

careful consideration, we affirm.

                                        I. Facts
                                   -2-
      On 31 October 2011, FIA Card Services, N.A. (plaintiff)

filed a complaint against Chris Caviness (defendant) for breach

of contract.    In relevant part, plaintiff alleged that:


           3. The plaintiff opened a credit account
           (hereinafter, “Account”) for the defendant,
           at
           the request of the defendant and extended
           credit to the defendant through the Account.

           4. The defendant accepted and used the
           credit   provided by  the   plaintiff and
           incurred balances due on the Account that
           the defendant agreed to repay to the
           plaintiff.

           5. The defendant is in default of the
           agreement to repay to the plaintiff the
           credit
           provided through the Account, in that said
           defendant has failed to make the monthly
           payments required as they became due.

           6. Pursuant to the agreement, the defendant
           is lawfully indebted to the plaintiff in the
           sum of $10,150.19. Said sum has been
           outstanding since March 31, 2011.

      In   March   2012,   plaintiff     filed   a   motion     for   summary

judgment pursuant to North Carolina Civil Procedure Rule 56 “on

the   grounds   that   there   [were]   no   genuine   issues    as   to   any

material facts, and the Plaintiff [was] entitled to judgment as

a matter of law.”      Although plaintiff did not present the actual

credit card agreement as evidence in support of its motion,

plaintiff offered: 1.) copies of monthly billing statements from
                                         -3-
November 2008 through March 2011; 2.) checks made payable to

plaintiff from Caviness Landscaping Company, LLC, Chris Caviness

Landscaping,       LLC,      defendant       (collectively          “the     Caviness

checks”), and George Klenke; and 3.) the affidavit                           of Raven

McRae, an authorized representative of plaintiff.                    Defendant did

not file a written response, submit affidavits, or offer any

other supporting materials to combat plaintiff’s motion.

                                        II. Analysis

a.) Plaintiff’s Supporting Documents

    Defendant argues that the trial court erred in granting

plaintiff’s      motion    for    summary       judgment    because      plaintiff’s

supporting       documents       were    contradictory        and     Ms.        McRae’s

affidavit was inherently suspect.               We disagree.

    “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, 523-24, 649

S.E.2d    382,   385    (2007)).        We   must      consider   “the     pleadings,

affidavits and discovery materials available in the light most

favorable to the non-moving party[.]”                  Pine Knoll Ass'n, Inc. v.

Cardon,   126    N.C.     App.   155,    158,    484    S.E.2d    446,     448   (1997)
                                         -4-
(citations omitted).           The movant has the burden to establish

that no genuine issue of material fact exists, and “the non-

movant only has to refute any showing that his case is fatally

deficient.”          Broyhill v. Aycock & Spence, 102 N.C. App. 382,

389, 402 S.E.2d 167, 172 aff'd, 330 N.C. 438, 410 S.E.2d 392

(1991 (citation omitted).             Even if a party fails to respond to

an opponent’s motion for summary judgment, the motion should be

denied     if        “the   movant’s        supporting    evidence      is        self

contradictory or circumstantially suspicious or the credibility

of   a    witness      is   inherently      suspect    either     because    he     is

interested      in    the   outcome    of    the   case   [or]    the   facts      are

peculiarly within his knowledge[.]”                   Kidd v. Early, 289 N.C.

343, 366, 222 S.E.2d 392, 408 (1976).

     We first address defendant’s contention that the payments

to plaintiff by the Caviness checks and George Klenke contradict

plaintiff’s allegation that a contract existed between itself

and defendant.         Each Caviness check lists the payer’s address as

6649 Mafolie Court, Raleigh, N.C. 27613.                    This same address

appears    on   defendant’s     account      statements    from    November       2008

until August 2009.          Although one of the Caviness checks predates

the account statements, the remaining four checks match payments

indicated on the account statements: Chris Caviness Landscaping,
                                      -5-
LLC on 3 November 2008 in the amount of $300, Chris Caviness

Landscaping, LLC on 25 November 2008 in the amount of $400,

Chris Caviness Landscaping, LLC on 15 April 2009 in the amount

of $324, and Chris Caviness on 30 November 2009 in the amount of

$220.     While it is unclear why plaintiff’s supporting documents

contain a check from Klenke to plaintiff, the check bears no

weight in our analysis of whether a contract existed between

plaintiff and defendant, especially in light of the Caviness

checks.     Thus,     plaintiff’s    supporting     evidence      is   not   self-

contradictory.        To the contrary, the Caviness checks provide

further support for plaintiff’s claim against defendant.

     As    to   Ms.   McRae,   defendant     argues   that    because    she   is

plaintiff’s     employee,      she   is     “interested      in    obtaining    a

favorable result for [plaintiff][.] . . .                    As such, McRae’s

[a]ffidavit is inherently suspect.”            However, the fact that she

may be an interested witness, standing alone, is insufficient to

raise a genuine issue of material fact as to plaintiff’s claim.

See id. at 371, 222 S.E.2d at 411 (ruling that an affidavit of

an   interested       party    merely     creates     “latent      doubts”      of

credibility, which have “little, if any, significance” unless

the opposing party produces contradictory affidavits or other

grounds for impeachment).        As such, defendant’s argument fails.
                                           -6-
b.) Implied Contract-in-Fact

       Next,    defendant       argues     that   the    trial         court   erred    in

granting       plaintiff’s       motion     for    summary        judgment       because

plaintiff failed to establish the existence of a valid contract

between the parties.            Defendant bases his argument solely on the

fact that plaintiff failed to offer the credit card agreement

between the parties into the record during the summary judgment

hearing.       We disagree.

       In order to prevail on a claim for breach of contract, a

party must show: “(1) existence of a valid contract and (2)

breach of the terms of that contract.”                   Poor v. Hill, 138 N.C.

App. 19, 26, 530 S.E.2d 838, 843 (2000)                       (citation omitted).

Mutual assent of both parties to the terms of a contract “is

essential to the formation of any contract . . .                               so as to

establish a meeting of the minds.”                 Connor v. Harless, 176 N.C.

App.    402,     405,    626     S.E.2d    755,    757   (2006)         (citation      and

quotation omitted).             Mutual assent is typically formed “by an

offer by one party and an acceptance by the other, which offer

and    acceptance       are    essential    elements     of   a    contract.”          Id.

(citation and quotation omitted) (emphasis in original).                                An

implied    contract-in-fact         (implied      contract)       is    “as    valid   and

enforceable as an express contract.”                Creech v. Melnik, 347 N.C.
                                           -7-
520, 526, 495 S.E.2d 907, 911 (1998) (citation omitted).                             The

formation of an implied contract “arises where the intent of the

parties is not expressed, but an agreement in fact, creating an

obligation,       is   implied       or   presumed       from   their    acts.”       Id.

(citation omitted)           The conduct of the parties shall imply an

offer and acceptance.              Revels v. Miss Am. Org., 182 N.C. App.

334, 337, 641 S.E.2d 721, 724 (2007).                    Although              plaintiff

failed to offer the credit card agreement into the record during

the summary judgment hearing, the undisputed facts establish the

existence of an implied contract.                 Plaintiff presented the trial

court with copies of monthly account statements from November

2008 to March 2011.            The statements each bear defendant’s name,

his   account      number,        his     mailing       address,      purchases    made,

outstanding balance, and payment due date.                          Importantly, the

statements indicate that plaintiff extended a line of credit to

defendant     for      $10,400.00,         and      defendant       repeatedly      made

purchases    on    the      credit      card.     The     statement     also    provided

specific    terms      as    to   method     of   payment,      the    calculation    of

finance charges for late payments, grace periods, and how to

keep one’s account in good standing.                      Plaintiff also provided

copies of the Caviness checks made payable to plaintiff from

September   2008       until      November      2009.      Nothing      in   the   record
                                     -8-
indicates   that    defendant   ever    disputed    the    charges     or   the

amounts   owed.      Additionally,     plaintiff    offered      Ms.   McRae’s

affidavit, which stated that defendant opened an account with

plaintiff “for the purpose of obtaining an extension of credit

and did thereafter use or authorize the use of the account for

the   acquisition    of   goods,     services,     or   cash     advances    in

accordance with the customer agreement governing use of that

account.”    It     further   reads,   “[t]he      books   and    records    of

Plaintiff show that Defendant(s) is/are currently indebted to

Plaintiff . . . for the just and true sum of $10,150.19 and that

all just and lawful offsets, payments, and credits have been

allowed.”   Thus, we hold that, at a minimum, an implied contract

was formed between the parties because plaintiff’s extension of

credit constituted an offer, and defendant’s use of the credit

card amounted to an acceptance of plaintiff’s offer.                Moreover,

payments to plaintiff by the Caviness checks coupled with the

credit card’s terms of use on the statements establish a mutual

assent to the specific provisions of the contract——to pay the

outstanding balance owed as evidenced on the account statements.

Accordingly, there is no genuine issue of material fact as to

whether a valid contract existed between the parties.               See Miles

v. Carolina Forest Ass'n, 167 N.C. App. 28, 37, 604 S.E.2d 327,
                                        -9-
333-34    (2004)   (finding   the   presence     of   an    implied    contract

between    property    owners     and     subdivision      association       where

owners:    1.)     received     benefits      such    as     maintenance       of

infrastructure in subdivision, 2.) had notice that such benefits

were incurred, and 3.) paid association fees in exchange for the

benefits).

                              III. Conclusion

    In     sum,     plaintiff’s     supporting        documents       were    not

contradictory, Ms. McRae’s affidavit was not inherently suspect,

and plaintiff established the existence of a valid contract with

defendant.       Thus, we affirm the trial court’s order granting

summary judgment to plaintiff.

    Affirmed.

    Judges McCULLOUGH and DAVIS concur.

    Report per Rule 30(e).
