Requirements for Notary Certificate and Acknowledgment; Timeliness of Appeal of Summary Judgment Order from Converted Motion to Dismiss Hearing, COA18-1010, Sfreddo v. Hicks, June 18, 2019, Wake County

Wife filed an action against Husband for breach of contract (a separation agreement). Husband moved to dismiss alleging the separation agreement was void because it was not properly acknowledged under N.C. Gen. Stat. § 52-10.1. Husband specifically alleged the wording of the notary certificate did not have the proper language regarding the notary’s knowledge of the identity of the principal nor did it indicate that the notary acknowledged the signature was that of the principal.

At the hearing on Husband’s motion to dismiss, Wife appeared pro se. During Wife’s argument, the court placed Wife under oath and began a direct examination regarding the circumstances surrounding the execution and acknowledgment of the Agreement. Husband did not ask any questions or present any evidence. The trial court granted Husband’s motion, and the resultant order was titled “ORDER FOR SUMMARY JUDGMENT” and stated Husband’s motion to dismiss converted into a motion for summary judgment because the court considered matters outside of the pleadings. Wife filed a Rule 59 motion which was denied. Wife appealed the Rule 59 Order and the “Summary Judgment” Order (within 30 days of the denial of her Rule 59 motion).

Husband’s central argument is that Wife’s appeal of the “Summary Judgment” Order was not timely. However, Wife’s filing of her Rule 59 motion properly tolled the time for appeal of the trial court’s order dismissing her case. The Court of Appeals held that even though the order at issue was titled “ORDER FOR SUMMARY JUDGMENT,” “Wife had actually appealed a final order on the merits, with findings of fact, entered after a bench trial,” and therefore her appeal was timely. The Court of Appeals reviews orders based on their substance, not upon labels or titles assigned by the trial court.

Wife’s central argument on appeal is that the trial court erred in granting summary judgment regarding the validity of the Agreement. Absent allegations of fraud or knowing or deliberate violations, notary acts are afforded a presumption of legality; and notary acts shall upheld provided there has been substantial compliance with the law. N.C. Gen. Stat. § 10B-99. Since Husband did not present any affidavit or evidence at the hearing on the motion to dismiss, he failed to overcome this presumption. Wife’s evidence at the hearing, both the Agreement itself and her testimony regarding the execution and acknowledgment of the Agreement, supported the presumption of regularity of the notarization.

The Court of Appeals notes that while the notary certificate in the Agreement does not include as much detail as other forms, it does include what is required under N.C. Gen. Stat. § 10B-3. The notary certified the Agreement was “sworn to and subscribed to before me” by the “parties” who were identified in the Agreement as Husband and Wife. Any minor omissions or issues in the wording of a certificate are covered by N.C. Gen. Stat. § 10B-40(a1)(1) (“By making or giving a notarial certificate, whether or not stated in the certificate, a notary certifies …[a]s to an acknowledgment, all those things described in G.S. 10B-3(1).”).

Because Husband failed to present any evidence to overcome the aforementioned presumption, and Wife’s evidence supported the presumption, the “trial court erred in concluding as a matter of law that the Agreement was void because it was not properly acknowledged.” Reversed and remanded.

August 2, 2019/by FamilyLaw