Appeal of Grant of Summary Judgment


I (husband) signed a Separation Agreement where we waived further rights to seek disclosure from each other and I later realized that she (wife) did not fully disclose assets. Through court action, the divorce was granted, but the Divorce Decree preserved my right to pursue Equitable Distribution (ED) at a later date.

In a pretrial hearing, my attorney satisfied Judge J.T. with sufficient justification to be granted a bifurcated trial. He deemed if we can prove in court that assets had not been disclosed, then we could then pursue formal ED by the court.

I was scheduled for a deposition by wife’s attorney while my attorney sent to wife’s attorney interrogatories requesting financial information. After I gave my deposition, wife’s attorney filed for an extension to answer the interrogatories. Two weeks later, wife’s attorney filed a Motion for Summary Judgment stating there were no outstanding matters of fact, that there was no evidence of non-disclosure or any indication of the ability to forecast any production of evidence. Although we were supposed to have the bifurcated trial scheduled in July, a hearing for this motion was scheduled to be heard on July 9 in a Motion’s Court.

Meanwhile, in their answer to our interrogatories, wife’s attorney filed an answer claiming the information we requested was too burdensome. Wife’s attorney later sent a letter stating they had some documents at their office if we’d like to look at them. The first mutually agreeable time was the afternoon of July 7. I was totally against looking at these documents without first filing some kind of request for sanctions with the court because they had NOT answered the interrogatories. But, we did go, and did discover two sizable accounts that indeed had not been disclosed (labeled as “inheritance accounts”). But in general, the information they supplied was incomplete or was information that would only support their arguments. The direct question about a $50,000 check wife had sent to her brother was answered incompletely and in such a manner to imply compliance but did not actually satisfy the question.

At the July 9 hearing before the same judge who ordered the bifurcated trial, my attorney requested a continuance because 1) we had only viewed the documents two days earlier on July 7 and had not sufficient opportunity to prepare compelling arguments, and 2) wife’s attorney had faxed a legal brief late on July 7 to my attorney’s office (while we were at their office) justifying their Summary Judgment request based on a case precedent which my attorney had not had time to properly research. Judge J.T. did not grant the request for a continuance, and told us to be prepared in 30 minutes.

We prepared a case for presentation. When asked to present, my attorney stated we knew of three accounts that had not been disclosed, and gave the account numbers. My attorney also raised the question about the $50,000 check wife wrote to wife’s brother which they implied to be a loan. Regarding the actual evidence we reported neither the judge nor wife’s attorney made any attempt to verify or discredit its validity. Wife’s attorney had brought the documents we had viewed to court, and they were placed on the judge’s bench available to be examined. He never looked at any documents that my attorney identified. After the follow up questions, the judge appeared to be accepting our plea, to the point he asked if I was willing to “roll the dice” and stand by the results of ED? I answered, YES. The judge then addresses wife’s attorney. Her response included “Your honor, this is nothing but a fishing expedition, and my client has complied…these documents have been available since the 16th… and my client has even paid $133,000 of HIS business’s debts (while pointing at me). I move to have this Summary Judgment granted… including attorney fees.” I started to lean over to my attorney to say we needed to challenge that last statement because the debt was for OUR business, not MY business, and that was never an issue regarding the present proceedings. While I was still formulating what statement to make to my attorney, the judge says, at exactly two minutes before noon; “I’m granting the Motion for Summary Judgment”.

Are there sufficient grounds to make an appeal according to NC Rules of Law?

  1. We offered evidence of three undisclosed accounts whose existence was not denied, which in itself showed unresolved matters of fact. Should not the Summary Judgment Motion have been denied at that point?
  2. The same judge ruled a bifurcated trial was necessary because of unresolved issues of fact. Didn’t the fact he ruled a trial was justified be enough to deny the Motion for Summary Judgment?
  3. Did the judge abuse his discretion by refusing to look at the evidence that was provided regarding the undisclosed accounts?
  4. Did the judge allow unsworn testimony to influence the hearing? We had not been sworn in as it was a motion hearing. At the conclusion, wife’s attorney’s emphatically made the statement “her client had even paid HIS business debts” which was factually incorrect. We were co-owners! I was not given an opportunity to challenge this statement as the judge made his ruling directly after her comment or to cross-examine the person who gave this testimony.
  5. Pertaining to the denial for a continuance, did the judge abuse his discretion by requiring me to present my arguments without allowing adequate time to prepare? Was this reasonable since it had been less than 40 hours since I had the first opportunity to view their documents?


Any time there is exists an issue of fact Summary Judgment is not appropriate, based on these facts I believe the motion should have been denied, and I believe a basis for appeal exists on that fact alone.


I thank you for your response in the past, and I am in the process of appeal.

The Order for Summary Judgment was entered “with prejudice”, and I’m trying to get a handle on that particular item. I have seen where cases can be “dismissed with prejudice” as a sanction, but have found few references to this in regards to a Summary Judgment. Should I interpret this as a sanction, or is it understood that any Order for Summary Judgment is “with prejudice” as a default? The opposing counsel did not request this in their motion, but requested it after the Judge made his ruling, to which the Judge agreed.


The ruling seems to purport that it is somehow not able to be questioned, however your entire basis for the appeal lies on the fact that summary judgment was inappropriate to begin with based on the presence of disputed facts.


In reviewing the court transcript, the judge never actually granted “with prejudice” as the opposing counsel had requested, but the Order that the opposing counsel prepared, which the judge signed, definitely includes it. Is this moot at this point, or is there some recourse available? I’m going forward with the appeal anyway…


The transcript should trump the written Order.