Opinion
No. COA10-897
Filed 2 August 2011
Appeal by Defendant from order entered 1 April 2010 by Judge Timothy L. Patti in Superior Court, Mecklenburg County. Heard in the Court of Appeals 13 December 2010.
The McIntosh Law Firm, P.C., by Robert G. McIntosh, Regina Wheeler Swinea, and James C. Fuller, for Plaintiff-Appellee. Robert M. Talford, Defendant-Appellant, pro se.
Mecklenburg County No. 09 CVS 25711.
Robert M. Talford (Defendant) was admitted to a medical facility of The Charlotte Mecklenburg Hospital Authority (Plaintiff) on 5 November 2007 and was discharged on 8 November 2007. Plaintiff does business as Carolina HealthCare System. Plaintiff provided medical care to Defendant and subsequently billed Defendant $14,419.57 for services rendered. Defendant did not pay the $14,419.57 charged by Plaintiff. Plaintiff filed a complaint against Defendant and his wife, Miriam Talford (together, Defendants), on 15 October 2009. Plaintiff's complaint included claims for "implied contract and quantum meruit" and "guaranty of payment," and requested compensatory damages in the amount of $14,419.57. Plaintiff also requested attorney's fees and asked that costs be taxed against Defendants. Defendants answered on 28 December 2009. Plaintiff voluntarily dismissed Miriam Talford from the action on 2 February 2010 and moved for summary judgment against Defendant on that same date. In an order entered 1 April 2010, the trial court granted Plaintiff's motion for summary judgment. Defendant appeals.
I.
In Defendant's sole argument, he contends the trial court erred in granting summary judgment in favor of Plaintiff on the issue of damages. We agree.
The North Carolina Rules of Civil Procedure provide that summary judgment will be granted "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." The party moving for summary judgment has the burden of establishing the lack of any triable issue. The movant may meet this burden by proving that an essential element of the opposing party's claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial. All inferences of fact from the proofs offered at the hearing must be drawn against the movant and in favor of the party opposing the motion.
Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989) (citations omitted). "On appeal, an order allowing summary judgment is reviewed de novo." Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 470, 597 S.E.2d 674, 693 (2004) (citation omitted).
In the present case, Defendant argues that summary judgment was improper because there was a material issue of fact concerning whether the charges Plaintiff billed Defendant were reasonable for the goods and services rendered. Therefore, the trial court's grant of summary judgment on the issue of Defendant's liability stands and we consider only whether there was any genuine issue of material fact concerning the measure of damages awarded to Plaintiff. See Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 555 (1988). Although the dissenting opinion concludes that the trial court granted summary judgment based upon a theory of direct breach of contract, the dissent agrees that, ultimately, the dispositive issue is whether the trial court properly granted summary judgment with respect to damages based upon quantum meruit, which is the only issue for analysis currently before us.
"Our cases hold that the measure of damages for unjust enrichment [implied contract or quantum meruit] is the reasonable value of the goods and services to the defendant." Booe, 322 N.C. at 570, 369 S.E.2d at 555 (citations omitted).
[W]hen a physician renders professional services, the law implies a promise on the part of the patient who received the benefit of the services to pay what the services are reasonably worth, absent an agreement that the services were rendered gratuitously. Failure to agree on the amount of compensation entitles the physician to the reasonable value of his services, even where he ministers treatment to a person incapable of mutuality of assent.
Forsyth Co. Hospital Authority, Inc. v. Sales, 82 N.C. App. 265, 266, 346 S.E.2d 212, 214 (1986) (citations omitted). This implied promise by a patient to pay a reasonable charge for medical services "applies equally to hospitals [and] health care providers." Id. at 268, 346 S.E.2d at 215.
Plaintiff alleges in its complaint that: "The fair and reasonable value of the goods and services [provided by Plaintiff to Defendant during Defendant's hospital stay] . . . is not less than Fourteen Thousand Four Hundred
Nineteen Dollars and 57/100 ($14,419.57)." Attached to Plaintiff's complaint as "Exhibit A" was a "Legal Account Balance Summary Sheet" indicating Plaintiff charged Defendant $14,419.57 for services rendered. This account balance sheet does not itemize the charges or state what services Plaintiff rendered to Defendant. Plaintiff filed affidavits stating that the unpaid charges it had billed Defendant amounted to $14,419.57, and that this amount was reasonable. "[A] bill for services rendered, standing alone, is insufficient to support an award of damages[;] [however,] it is some evidence of the value of one's services." Environmental Landscape Design v. Shields, 75 N.C. App. 304, 307, 330 S.E.2d 627, 629 (1985) (citations omitted).
In Harrell v. Construction Co., 41 N.C. App. 593, 255 S.E.2d 280 (1979), our Court held that ledger sheets showing an account of work the plaintiff contended it had performed for the defendant was insufficient to prove the reasonable value of the services the plaintiff had performed for the defendant in a claim for quantum meruit. Our Court held that the defendant's motion for involuntary dismissal should have been granted and the case was remanded for a new trial because the ledger sheets alone were held insufficient to support the damages award granted to the plaintiff. Id. Our Court in Harrell stated:
The measure of damages under an implied contract is the reasonable value of the services accepted and appropriated by the defendant. "The general rule is that when there is no agreement as to the amount of compensation to be paid for services, the person performing them is entitled to recover what they are reasonably worth, based on the time and labor expended, skill, knowledge and experience involved, and other attendant circumstances, rather than on the use to be made of the result or the benefit to the person for whom the services are rendered." "Damages are never presumed. The burden is always upon the complaining party to establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule." "The amount to be paid is not the value of the services to the recipient, nor should his financial condition be taken into consideration in determining the value of the services performed. Many factors serve to fix the market value of an article offered for sale. Supply, demand, and quality (which is synonymous with skill when the thing sold is personal services) are prime factors. The jury [here the trial judge], when called upon to fix the value, must base its decision on evidence relating to the value of the thing sold. Without some evidence to establish that fact, it cannot answer. To do so would be to speculate." Plaintiff did not offer evidence as to the reasonable value or market value of its services, but merely stated what it was charging for these services as shown on [the ledger sheets].
Id. at 595-96, 255 S.E.2d at 282 (citations omitted), but see Booe, 322 N.C. at 571, 369 S.E.2d at 556 ("The Court of Appeals has held that an invoice or bill alone is not sufficient evidence to support a jury award as to the reasonable value of services. Harrell v. Construction Co., 41 N.C. App. 593, 255 S.E. 2d 280. We expressly declined to rule on that question in Harrell v. Construction [Co.], 300 N.C. 353, 266 S.E. 2d 626. It is not necessary for us to decide this question in this case because there is more evidence than the amount billed to the defendants."). Therefore, our Supreme Court has not decided whether a bill for services rendered, standing alone, can be sufficient to support an award of damages for a claim of quantum meruit. We are bound by the decisions from our Court that have addressed this issue. Further, most of the cases relied upon by Plaintiff, Defendant, our majority opinion, and the dissent, involve determinations of whether the grant or denial of motions for directed verdict were proper, not whether the grant or denial of motions for summary judgment were proper. As we will discuss in detail below, this is a critical distinction.
II.
Plaintiff states in its complaint that the services it rendered to Defendant were "reasonable given that they are standard charges rendered to all patients receiving similar types of services, they are within industry norms for similar facilities providing similar services at similar levels of care, and they are compliant with various published billing and charging regulations and guidelines[.]" Plaintiff's Director of Revenue Management, Sunny Sain, and Plaintiff's Manager of Patient Financial Services, James D. Robinson, filed affidavits to this effect. Defendant filed an affidavit on 24 March 2010, stating in relevant part the following: (1) Plaintiff charged Defendant $18.40 for one tablet of Diltiazem, but Defendant obtained thirty tablets of Diltiazem from his pharmacy for $23.00; (2) Plaintiff charged Defendant $406.50 for one unit of Enoxaparin sodium, whereas the "cost for this item is $278.00 for ten units;" (3) Plaintiff charged Defendant $1.45 for one 1.0 mg folic acid tablet, but Defendant could obtain thirty 1.0 mg folic acid tablets from a pharmacy for $4.00; and (5) Plaintiff's charges to Defendant "exceed[ed] the charges made and paid by other patients in . . . [D]efendant's medical condition."
In Forsyth Co., our Court affirmed the grant of summary judgment in favor of a hospital for costs billed to a patient for medical services rendered. In explaining its decision, our Court stated:
[The patient] did not challenge the amount of the hospital bill as not indicative of the reasonable value of the medical services rendered; therefore, summary judgment in favor of [the plaintiff hospital] for the amount of the bill is Affirmed.
Forsyth Co., 82 N.C. App. at 269, 346 S.E.2d at 215. In the case before us, Defendant expressly challenged the hospital bill relied upon by Plaintiff. We hold that the trial court erred in granting summary judgment in favor of Plaintiff on the issue of damages because Plaintiff's evidence concerning damages consisted entirely of a "bill" stating that Plaintiff was owed $14,419.57, along with affidavits from its own employees stating that that amount was reasonable. Defendant challenged the reasonableness of that amount and, in his affidavit, provided specific challenges to amounts Defendant claims he was charged by Plaintiff for services. Based on the standards of review, and prior opinions of this Court and our Supreme Court, we hold that there existed a material issue of fact concerning the reasonableness of the $14,419.57 Plaintiff claims it is owed. This issue should have been submitted to the trier of fact. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 352-53, 595 S.E.2d 778, 781 (2004) (citations omitted). In our holding, however, we are not suggesting that the testimony of Plaintiff's employees, as forecast in Plaintiff's affidavits, would be incompetent evidence to present at trial, since that issue is not before us. See Hospital v. Brown, 50 N.C. App. 526, 530, 274 S.E.2d 277, 280 (1981). We reverse that portion of the trial court's order granting summary judgment in favor of Plaintiff on the issue of the value of the services rendered and remand for further proceedings.
III.
The dissent cites to Environmental Landscape and Booe in support of its determination that summary judgment in favor of Plaintiff was proper. The critical distinction between the present case and Environmental Landscape and Booe is that the present case was decided on summary judgment. The dissent contends that Environmental Landscape and Booe are directly applicable to its analysis because "this Court has clearly stated that" the standard of review for summary judgment and directed verdict are "essentially the same." The dissent relies on Nelson v. Novant Health Triad Region, 159 N.C. App. 440, 583 S.E.2d 415 (2003), for this proposition. Our Court in Nelson stated:
The standard of review for a directed verdict is essentially the same as that for summary judgment. When considering a directed verdict on review, this Court must establish "whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor, or to present a question for the jury." Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991) (citations omitted).
Id. at 442, 583 S.E.2d 415, 417 (2003). Our Court in Nelson cites no authority for its statement that these standards of review are "essentially the same." Our Supreme Court in Davis did not state this principle. Rather the Davis Court simply stated: "The rules governing motions for summary judgment are now familiar learning, and it would serve no useful purpose to repeat them here. A concise statement of the rules appears in Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 376 S.E.2d 425 (1989)." Davis, 330 N.C. at 319, 411 S.E.2d at 135 (citation omitted). The standard of review as stated in Collingwood is the standard we cite above at the beginning of our analysis. Davis then cites the standard of review for directed verdict:
The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury. When determining the correctness of the denial for directed verdict or judgment notwithstanding the verdict [JNOV], the question is whether there is sufficient evidence to sustain a jury verdict in the non-moving party's favor . . . or to present a question for the jury. Where the motion for judgment notwithstanding the verdict is a motion that judgment be entered in accordance with the movant's earlier motion for directed verdict, this Court has required the use of the same standard of sufficiency of evidence in reviewing both motions.
Id. at 322-23, 411 S.E.2d at 138 (citations omitted). The standards of review for summary judgment and directed verdict are the same in the following respects: (1) they both involve a determination of whether, as a matter of law, the non-moving party has the right to proceed; and (2) they both require the trial court to make this determination considering the relevant documents for summary judgment — or evidence for directed verdict — in the light most favorable to the non-moving party. Perhaps most relevant to our analysis, in the present case, the trial court was required to consider the relevant documents in the light most favorable to Defendant. Conversely, in Environmental Landscape and Booe the trial courts were required to consider the evidence presented at trial in the light most favorable to the plaintiffs in those cases.
We do not believe trial courts make the same determination on summary judgment as they make on motions for directed verdicts. On summary judgment, the trial court must consider "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." Collingwood, 324 N.C. at 66, 376 S.E.2d at 427. At the summary judgment stage, neither party has had the opportunity to present evidence, or cross-examine. The parties have merely provided a forecast of evidence which may or may not accurately reflect the evidence ultimately presented at trial. However, on a motion for directed verdict, the trial court has had the opportunity to hear testimony and consider evidence presented. The parties have had the opportunity to cross-examine witnesses. Therefore: "The standard of review of directed verdict is whether the evidence, taken in the light most favorable to the non-moving party, is sufficient as a matter of law to be submitted to the jury." Davis, 330 N.C. at 322, 411 S.E.2d at 138; see also Goodwin v. Investors Life Ins. Co., 332 N.C. 326, 329, 419 S.E.2d 766, 767 (1992) ("It is fundamental law that a motion by a defendant for a directed verdict under N.C.G.S. § 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff.") (emphasis added).
We do not believe the language in Nelson, that these standards of review are "essentially" the same, stands for the proposition that a trial court treats a review of pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, at the summary judgment stage in exactly the same manner that it treats the review of actual evidence presented at trial for the purposes of a directed verdict or JNOV. Nor do we believe this statement in Nelson constitutes a holding. Our Court in Nelson cited the standards of review for both summary judgment and directed verdict, Nelson, 159 N.C. App. at 442, 583 S.E.2d at 417, and we do not find that the statement cited by the dissent was necessary to the outcome in Nelson. Easton v. J.D. Denson Mowing, 173 N.C. App. 439, 442, 620 S.E.2d 201, 202-03 (2005) (citation omitted).
Following the dissent's reasoning, in every instance that a trial court grants a directed verdict after hearing the evidence, the trial court could have (and perhaps should have) granted summary judgment, even though it only considered the documents provided for in N.C. Gen. Stat. § 1A-1, Rule 56. Further, following the reasoning of the dissent, the denial of a directed verdict for one party would mean that summary judgment could (or should) have been granted for the other party.
Plaintiff moved for summary judgment, requiring the trial court to consider the materials presented in the light most favorable to the non-moving party — Defendant. The trial court granted summary judgment in favor of Plaintiff. The holdings in Environmental Landscape and Booe, the cases upon which the dissent relies, were that the evidence presented at trial, when considered in the light most favorable to the non-moving parties, was sufficient for the denial of the defendants' motions for directed verdicts. According to the dissent, because our Courts in Environmental Landscape and Booe held that the evidence was sufficient to go to the jury when considered in the light most favorable to the plaintiffs, the trial court in the present case properly granted summary judgment to Plaintiff even though it was required to consider the relevant documents in the light most favorable to Defendant.
We cannot agree that the "in the light most favorable to the non-moving party" requirement is insignificant to our review of this case as related to Environmental Landscape and Booe. Neither Environmental Landscape nor Booe suggests that, had the plaintiffs in those cases moved for directed verdicts on the issue of damages, the trial court would have been compelled to grant those motions. The holdings in those cases only stand for the proposition that the evidence presented at trial was sufficient to support the juries' determinations of damages, not that the proper amounts of damages had been established as a matter of law. Our holding in the case before us, consistent with Environmental Landscape and Booe, is that the issue of damages needed to be decided by a trier of fact. See Feibus Co. v. Construction Co., 301 N.C. 294, 304-05, 271 S.E.2d 385, 392 (1980) (discussing the difference between evidence sufficient to create a jury question and evidence requiring judgment as a matter of law); Bird v. Bird, 193 N.C. App. 123, 130-31, 668 S.E.2d 39, 44 (2008), aff'd 363 N.C. 774, 688 S.E.2d 420 (2010) ("[I]t is not the function of this Court, or the trial court for that matter, to weigh conflicting evidence of record. Rather, in cases such as this, when there are genuine issues of material fact that are legitimately called into question, summary judgment should be denied and the issue preserved for the [fact finder].") (citation omitted); Environmental Landscape, 75 N.C. App. at 306, 330 S.E.2d at 628 ("In short, if plaintiff alleged and proved acceptance of services and the value of those services, it was entitled to go to the jury on quantum meruit.") (citation omitted).
IV.
Though we find the above distinction dispositive, we also note that the facts in Environmental Landscape and Booe are distinguishable from the facts in the present case. In Environmental Landscape, there was evidence that a different landscaper actually charged the same hourly rate for the same type of work as that charged by the plaintiff. This independent corroboration of the reasonableness of the amount of damages is not present in the case before us. In the present case, we have only affidavits from Plaintiff's employees stating that the amounts charged to Defendant were reasonable as they were the same as would be charged by other hospitals. We do not find that Plaintiff's own statements concerning the reasonableness of the charges carries the same weight as specific evidence that an independent third party did, in fact, charge the same rates. The dissent contends that it is inappropriate for us to consider the source of the evidence presented by Plaintiff, as it amounts to a credibility judgment. Although we agree with the dissent that making a credibility determination at this stage of the process would be improper, we are not making any credibility determination; rather, we are observing that it was improper for the trial court to make a credibility determination on summary judgment. We hold only that it is the province of the trier of fact at trial, not the trial court on summary judgment, to weigh the evidence and assess the credibility of the witnesses. Our Court has addressed credibility in reversing a damages award based upon quantum meruit following trial, and considered the lack of independent or objective evidence to support a plaintiff's claim for a specific amount of damages:
The only evidence supporting the awarded amount of $22,500 is plaintiff's own estimate, upon inquiry by the court, of the reasonable value of the services rendered and not paid for. As defendant points out, there was no effort by either plaintiff or the court to cast this figure in terms of the type of work done or the number of hours worked or to correlate it to any community or industry standard. Even though the $22,500 figure may be, in plaintiff's words, "extremely reasonable," especially in view of $32,150 prayed for in the Complaint, the evidence supporting that figure is clearly inadequate.
Paxton v. O.P.F., Inc., 64 N.C. App. 130, 134, 306 S.E.2d 527, 530 (1983); see also Hood v. Faulkner, 47 N.C. App. 611, 617 (1980) (citation omitted) ("Nor is the plaintiff's opinion that the amount of his bill is reasonable sufficient to sustain an award for such sum."). In Austin v. Enterprises, Inc., 45 N.C. App. 709, 264 S.E.2d 121 (1980), a case where liability was established under a theory of quantum meruit, our Court stated:
The sole issue presented concerns the worth of the services, and the burden of proof on that issue rests on the plaintiff. The rule of law is settled in this State that the trial judge cannot direct a verdict for the party with the burden of proof when that party's "right to recover depends upon the credibility of his witnesses." This is true even though the evidence be uncontradicted.
Id. at 710, 264 S.E.2d at 121 (citations omitted).
The only evidence of the value of plaintiff's services in this case was the testimony of one partner in the firm that he "felt" $16.00 an hour to be a "reasonable" fee. No independent or objective evidence of the reasonable value of such services was offered. Plaintiff's proof clearly depends completely upon the credibility of its witness. Although the defendant offered no evidence respecting the reasonable value of the services rendered it, it did deny that their worth as determined by the plaintiff was reasonable. Such is sufficient to raise an issue of fact as to the reasonable value of the services, and that question is for the jury.
It follows that the court erred in directing a verdict for the plaintiff. Accordingly, the judgment appealed from is reversed, and the cause is remanded for a new trial.
Id. at 710-11, 264 S.E.2d at 122 (citations omitted) (emphasis added); Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C. 214, 220, 513 S.E.2d 320, 325 (1999) ("[i]f there is any question as to the weight of evidence, summary judgment should be denied") (citation omitted). Defendant's affidavit included the following paragraphs:
5. That [P]laintiff's charges exceed the charges made and paid by other patients in . . . [D]efendant's medical condition;
6. That . . . [P]laintiff's charges are not reasonable for the medical care necessary to control . . . [D]efendant's medical condition.
Though the dissent correctly states that this portion of Defendant's affidavit was not supported by any evidence in the record that it was based upon Defendant's personal knowledge, pursuant to Austin, this portion of Defendant's affidavit was relevant as it expressly denied the reasonableness of the worth of the goods and services provided by Plaintiff. Austin, 45 N.C. App. at 710-11, 264 S.E.2d at 122 ("Plaintiff's proof clearly depends completely upon the credibility of its witness. Although the defendant offered no evidence respecting the reasonable value of the services rendered it, it did deny that their worth as determined by the plaintiff was reasonable. Such is sufficient to raise an issue of fact as to the reasonable value of the services, and that question is for the jury.") (emphasis added).
Our Supreme Court has carved out very narrow exceptions where credibility may be determined as a matter of law — none of which apply in the present case. Bank v. Burnette, 297 N.C. 524, 537-38, 256 S.E.2d 388, 396 (1979).
[W]hile credibility is generally for the jury, courts set the outer limits of it by preliminarily determining whether the jury is at liberty to disbelieve the evidence presented by movant. Needless to say, the instances where credibility is manifest will be rare, and courts should exercise restraint in removing the issue of credibility from the jury.
Id. at 538, 256 S.E.2d at 396 (citations omitted); see also Murdock v. Ratliff, 310 N.C. 652, 659, 314 S.E.2d 518, 522 (1984) ("This Court has previously stated that a directed verdict may be granted in favor of the party with the burden of proof when the credibility of the movant's evidence is manifest as a matter of law. However, in order to justify granting a motion for a directed verdict in favor of the party with the burden of proof, the evidence must so clearly establish the fact in issue that no reasonable inferences to the contrary can be drawn.") (citations omitted); Henry v. Knudsen, ___ N.C. App. ___, ___, 692 S.E.2d 878, 882 (2010).
Plaintiff's affidavits averring that the amount it charged Defendant was consistent with what other hospitals charged and within the industry norms are not supported by any accompanying documentation in the record. The affidavits are simply statements made by Plaintiff's employees. Though these employees may well be competent to testify at trial concerning these matters, their credibility is an issue to be weighed and determined by the jury as finder of fact. Population Planning Associates, Inc. v. Mews, 65 N.C. App. 96, 99, 308 S.E.2d 739, 741 (1983) (citation omitted) ("the credibility of testimony is for the jury, not the trial judge"). Defendant contested the veracity of Plaintiff's complaint and affidavits concerning the reasonableness of the amount Plaintiff charged, and Defendant includes some specific examples of Plaintiff's alleged overcharging.
We do not believe the credibility of Plaintiff's employees, expressing their opinions that Plaintiff's charges were reasonable, is manifest as a matter of law. Therefore, granting summary judgment in favor of Plaintiff on the issue of damages was improper for this reason as well. Ratliff, 310 N.C. at 659, 314 S.E.2d at 522. The dissent, by contending that Plaintiff's allegations in its complaint and its affidavits suffice to establish the crucial element of reasonableness as a matter of law, is making a credibility determination.
The dissent, presented with no evidence beyond the affidavits of Plaintiff's employees, appears to state as fact that Plaintiff's charges are consistent with charges in other like facilities, and as fact that these charges are consistent with various regulations and guidelines. Our Court is not a fact-finding body, nor is it permitted to make determinations of credibility. The dissent further attempts to discard the credibility issue by stating: "Defendant never made any such credibility-related argument in his brief" and, therefore, "a decision to grant relief on this basis would be tantamount to `creat[ing] an appeal for an appellant.'" We are to conduct a de novo review of the trial court's grant of summary judgment, and we make no credibility determination. The dissent cites Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976), in support of its conclusion that Plaintiff's affidavits were sufficient to support the grant of summary judgment in Plaintiff's, the moving party's, favor. We believe the language from Kidd immediately following that cited by the dissent is helpful:
This is not a holding that the trial court is required to assign credibility to a party's affidavits merely because they are uncontradicted. To be entitled to summary judgment the movant must still succeed on the basis of his own materials. He must show that there are no genuine issues of fact; that there are no gaps in his proof; that no inferences inconsistent with his recovery arise from his evidence; and that there is no standard that must be applied to the facts by the jury. Further, if the affidavits seem inherently incredible; if the circumstances themselves are suspect; or if the need for cross-examination appears, the court is free to deny the summary judgment motion. Needless to say, the party with the burden of proof, who moves for summary judgment supported only by his own affidavits, will ordinarily not be able to meet these requirements and thus will not be entitled to summary judgment.
Id. at 370-71, 222 S.E.2d at 410 (emphasis added).
We also find Booe distinguishable. In Booe, our Supreme Court stated:
The plaintiff's bookkeeper testified to the total billing to the defendants and to the amount paid and unpaid by the defendants. We hold that her testimony as to what was billed for the materials and labor and the evidence of a payment for a part of it at the billed rate is evidence sufficient for the jury to find the reasonable value to the defendants of the remaining goods and services for which bills were submitted and no payment was made.
Booe, 322 N.C. at 571, 369 S.E.2d at 556 (emphasis added). Unlike the present case, the evidence presented to the jury in Booe included past bills that had been accepted and paid by the defendant. Because the defendant had accepted the reasonableness of the prior charges, by paying them without objection, our Supreme Court held that the evidence was sufficient for the jury to determine that similar unpaid charges were also reasonable.
The dissent seems to suggest that it is inappropriate for us to consider goods provided by Plaintiff to Defendant in determining whether the trial court properly granted Plaintiff's motion for summary judgment on the issue of the reasonableness of Plaintiff's claimed damages. The dissent suggests that because Plaintiff provides a service, it is inappropriate to consider the reasonableness of individual goods provided by Plaintiff. The dissent relies on a number of out-of-state opinions in support of this proposition. Our Supreme Court in Booe reasoned:
[The] plaintiff furnished material and labor to the defendants for a substantial period without a contract and the defendants paid for it. This is some evidence of the value of the goods and labor furnished before the defendants stopped paying. The evidence was undisputed that the plaintiff furnished a substantial quantity of materials and labor after the last payment by the defendants.
This was obviously of value. The plaintiff's bookkeeper testified to the total billing to the defendants and to the amount paid and unpaid by the defendants. We hold that her testimony as to what was billed for the materials and labor and the evidence of a payment for a part of it at the billed rate is evidence sufficient for the jury to find the reasonable value to the defendants of the remaining goods and services for which bills were submitted and no payment was made.
Id. at 571, 369 S.E.2d at 556 (emphasis added). The plaintiff in Booe was providing a service which also necessitated the provision of goods. We do not believe the reasonableness requirement is inapplicable to goods or materials just because they are provided in conjunction with a service. We disagree with the reasoning of the dissent, whereby a hospital could charge any amount for goods or materials, perhaps well in excess of the actual value of those goods or materials, and avoid the creation of an issue of material fact so long as it provided affidavits stating that its charges for the services it provided were reasonable and in accord with those charged by other hospitals.
V.
Plaintiff argues that even if summary judgment in favor of Plaintiff was improper on its implied contract claim, summary judgment was still proper based on Plaintiff's guaranty claim. We disagree.
Although we held above that for Plaintiff's quantum meruit claim, liability was established and only the issue of damages remained, we address this argument because it presents additional issues. First, as shown below, if the "Payment Guaranty" section at issue is enforced as requested by Plaintiff, Defendant will be obligated to pay attorney's fees and costs, in addition to "all charges for services rendered[.]" Second, if we were to hold that the "Payment Guaranty" was enforceable, we would be confronted with the issue of whether the language, " all charges for services rendered[,]" (emphasis added), required Defendant to pay the total amount of the charges billed regardless of whether the charges could be found to be unreasonable in a quantum meruit analysis.
When Defendant was admitted to Plaintiff's medical facility, Defendant signed a "Request for Treatment and Authorization Form" that included a "Payment Guaranty" section. Pursuant to the payment guaranty section, Defendant agreed "to pay all charges for services rendered by [Plaintiff] . . . during [Defendant's] hospitalization or treatment." The payment guaranty section further stated that if Defendant failed to pay "all charges and [Plaintiff] . . . use[d] an attorney to collect unpaid charges, I [Defendant] agree to pay the reasonable cost of the attorney's services in addition to the unpaid charges." However,
[a] guaranty is a promise to answer for the payment of some debt, or the performance of some duty, in the case of the failure of another person who is liable in the first instance for such payment or performance. The guaranty creates an obligation that is independent of the obligation of the principal debtor. A guaranty is a collateral and independent undertaking creating a secondary liability. The creditor's cause of action against the guarantor ripens immediately upon the failure of the principal debtor to pay the debt at maturity.
Forsyth Co., 82 N.C. App. at 267, 346 S.E.2d at 214 (citations omitted); see also Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 718, 338 S.E.2d 601, 602 (1986) ("A guaranty of payment is an absolute promise to pay the debt of another if the debt is not paid by the principal debtor.") (citation omitted). In the present case, Defendant himself signed the "Request for Treatment and Authorization Form" that included a "Payment Guaranty" section. Therefore, no secondary obligation was ever created in a third party. Defendant is the principal debtor and the only debtor who could have assumed any liability pursuant to the "Payment Guaranty" section.
Plaintiff cites Forsyth Co. in support of its argument. However, as stated above in Forsyth Co., the law requires a third party to guarantee payment in case of the default of the primary debtor. Forsyth Co., 82 N.C. App. at 267, 346 S.E.2d at 214 (citations omitted). The factual situation in Forsyth Co., unlike the factual situation in the present case, conforms to this requirement. Plaintiff has failed to make a valid guaranty claim. We note that Plaintiff's complaint included three "causes of action:" (1) "Implied Contract and Quantum Meruit," (2) "Guaranty of Payment," and (3) "Attorney's Fees." Plaintiff included no claim for breach of an express contract, and does not argue on appeal that its motion for summary judgment was properly granted based upon any breach of an express contract. This issue was not presented to the trial court for consideration. See N.C. Gen. Stat. § 1A-1, Rule 8 (2009); Robinson v. Powell, 348 N.C. 562, 566-67, 500 S.E.2d 714, 717 (1998) (citations omitted). In addition, as the dissent acknowledges, even if there was a valid claim for breach of an express contract presented to the trial court, because the "contract" did not specify the amount to be charged to Defendant, the outcome is still determined pursuant to a quantum meruit analysis.
Affirmed in part, reversed in part, and remanded.
Chief Judge MARTIN concurs.
Judge ERVIN dissents with a separate opinion.