Any litigator can tell you that a North Carolina court examining a motion for summary judgment determines whether a genuine issue of material of fact exists by looking at any number of materials in the record. Per Rule 56 and the case law, courts can consider pleadings, depositions, answers to interrogatories, admissions on file, documentary evidence, oral testimony (sometimes), and sworn affidavits based on personal knowledge. Trial courts pay close attention to the record on summary judgment and so does our Court of Appeals.

This week in Duke Energy Carolinas, LLC v. Bruton Cable Service, Inc. the Court of Appeals overturned a grant of summary judgment in favor of third-party defendants in part because the trial court considered materials submitted by the movants that did not meet the requirements of Rule 56(e).  Specifically, the movants introduced several unsworn letters between the parties’ counsel purporting to support their motion for summary judgment.  The Court of Appeals was unswayed by movant’s counsel’s argument that the letters were offered for the purpose of showing another party’s awareness of damages and stated that “the reason for offering the letters does not negate the fact that the letters themselves were unsworn correspondence that did not comply with the requirements of Rule 56.” (The Court didn’t reach questions about the letters’ admissibility on the issues of hearsay and other evidentiary bars.)

When opposing or supporting a motion for summary judgment, trial and appellate counsel are advised to carefully consider whether the submitted materials satisfy Rule 56.  Supporting affidavits must be sworn, based on personal knowledge, and contain admissible evidence.  As in Bruton, when affidavits or materials offered as a substitute for affidavits don’t clear these hurdles, the court can’t consider them. Such was the case in Short v. City of Greensboro, 15 N.C. App. 135 (1972), where an unsworn letter from plaintiff’s attorney to defense counsel couldn’t be considered by the Court as it ruled on the defendant’s summary judgment motion. And in Lewis v. Dunn Leasing Corp., 36 N.C. App. 556 (1978), an unsworn demand letter addressed to the corporate plaintiff from defendants’ attorney concerning payments due under a lease could not prove the amount of debt owed. More recent cases cited by the Court in Bruton – Strickland v. Doe and Draughon v. Harnett County Board of Education – underline this point as well.

In short, while letters between counsel may be full of cogent analysis and/or bear on matters in the case, the Rules are clear that such materials are not the proper “stuff” for supporting or contesting a motion for summary judgment. As you evaluate appellate matters concerning summary judgment consider whether the parties’ evidence has met the threshold requirements of Rule 56 as you craft your arguments.  Correspondence with opposing counsel may be useful to the Court and the argument, but it’s not enough to win the day.

— Eric Snider