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Moore v. Coachmen Industries Inc.5/5/1998
242.
Rule 56(e) of the North Carolina Rules of Civil Procedure governs the form of affidavits, and provides:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . .
N.C.R. Civ. P. 56(e). Hearsay matters included in affidavits should not be considered by a trial court in entertaining a party's motion for summary judgment. Savings & Loan Assoc. v. Trust Co., 282 N.C. 44, 52, 191 S.E.2d 683, 688-89 (1972). Similarly, a trial court may not consider that portion(s) of an affidavit which is not based on an affiant's personal knowledge. Id. The fact that an affiant's knowledge was gathered from business records or communications is not fatal to the Rule 56(e) requirement that an affidavit be based on the personal knowledge of the affiant. See Bell Arthur Water Corp. v. N.C. Dept. of Transportation, 101 N.C. App. 305, 309, 399 S.E.2d 353, 356, disc. review on additional issues denied, 328 N.C. 569, 403 S.E.2d 507 (1991). The business records exception to the hearsay rule provides, "Business records made in the ordinary course of business at or near the time of the transaction involved are admissible as an exception to the hearsay rule if they are authenticated by a witness who is familiar with them and the system under which they are made." State v. Wilson, 313 N.C. 516, 533, 330 S.E.2d 450, 462 (1985).
Mr. Pangburn made the following pertinent statements in his first affidavit:
I am the Senior Corporate Attorney of [defendant Coachmen]. Prior to [defendant Sportscoach's] corporate dissolution in 1995, I held the same position with both [defendants] Sportscoach and Coachmen. I have custody and access to the business records of [defendant] Sportscoach relating to [plaintiffs'] vehicle[,] which is the subject of the instant action . . . .
I am familiar with the system by which . . . Sportscoach records were generated. The entries in these records were made in the regular course of [defendant] Sportscoach's business[,] at or near the time of the events recorded[, and] based upon the personal knowledge of the person making them, or upon information transmitted by the person with knowledge. . . .
It was the regular business practice of [defendant] Sportscoach to require the dealer to deliver and have signed the Warranty Registration and pre-delivery and acceptance declaration, and to deliver the Owners Manual and the New Recreational Vehicle Limited Warranty and other information about the Sportscoach warranty before or contemporaneously with the delivery and sale of the vehicle to the dealer's customer. That this practice was followed with respect to the sale of the vehicle to the plaintiffs is confirmed by plaintiff Luther Deleon Moore's signature, certifying that all warranties were clearly explained to him.
In his second affidavit, Mr. Pangburn pertinently stated: Neither the Vehicle Service Contract nor the Covered Components brochure [(attached to Mr. Moore's 29 July 1996 affidavit)] were prepared, issued, administered, adopted or supervised by either [defendant] Sportscoach or [defendant] Coachmen. The Vehicle Service Contract declaration page is typical of service contracts offered by recreational vehicle dealers and third party financial institutions. Neither [defendant] Sportscoach nor [defendant] Coachmen offered any such service contract or extended service protection plan.
[Plaintiffs'] ehicle was sold and delivered by [defendant] Sportscoach to Carolina County Recreational Vehicles, Inc., with no service agree
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