Blue Jeans Corp. v. Pinkerton, Inc. , 51 N.C. App. 137 ( 1981 )

275 S.E.2d 209 (1981)

BLUE JEANS CORPORATION
v.
PINKERTON, INC.

No. 8013DC690.

Court of Appeals of North Carolina.

March 3, 1981.

Lee & Lee by J. B. Lee, Jr., Whiteville, for plaintiff-appellant.

Marshall, Williams, Gorham & Brawley by Lonnie B. Williams, Wilmington, for defendant-appellee.

WELLS, Judge.

On motion for summary judgment, the burden on the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined. Gregory v. Perdue, Inc., 47 N.C. App. 655, 656, 267 S.E.2d 584, 586 (1980). If the movant carries this burden by showing that an essential element of the opposing party's claim is non-existent, then the burden shifts to the non-moving party to either show that a genuine issue of material fact does exist or provide an excuse for not so doing. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 469-70, 251 S.E.2d 419, 421-22 (1979).

Defendant's evidence properly before the court established the existence of the written contract between the parties in the form of a letter confirming plaintiff's order for services, signed by both parties, and specifying the service authorized, the hours of service, and the charges and rates. In clear and unambiguous language, the contract stated the conditions to which defendant's guards would be alert and respond: fire, theft, trespass and vandalism. Clear and express language of a contract controls its meaning, and neither party may contend for an interpretation at variance with its language on the ground that the writing did not fully express his intent. Olive v. Williams, 42 N.C.App. 380, 383, 257 S.E.2d 90, 93 (1979). See also Taylor v. Gibbs, 268 N.C. 363, 365, 150 S.E.2d 506, 507 (1966); 3 Corbin on Contracts § 573, at 357 (1960). Considered alone, the contract shows that an essential element of plaintiff's claim is non-existent, i. e., defendant had no contractual duty to be alert to and report on weather conditions or roof leaks. Having carried its burden, defendant forced plaintiff to produce a forecast of its evidence. See Moore v. Fieldcrest Mills, Inc., supra.

In its affidavit in response to defendant's motion for summary judgment, plaintiff's vice president stated that in pre-contractual oral negotiations, defendant's agents represented that defendant's service would provide a complete asset protection respecting all emergencies and acts of God including weather. Plaintiff also submitted a copy of a letter from defendant to plaintiff detailing the services defendant offered. Plaintiff's forecast of evidence fails to establish the existence of a genuine issue of material fact. Plaintiff has not controverted the validity of the written contract. Even if the parties did in fact discuss duties in addition to those named in the contract, such prior or contemporaneous negotiations are presumed to be merged in the written contract, Fox v. Southern Appliances, 264 N.C. 267, 270, 141 S.E.2d 522, 525 (1965), and are therefore without effect. Realty, Inc. v. Coffey, 41 N.C.App. 112, 115, 254 S.E.2d 184, 186 (1979).

Defendant's evidence also established the lack of any genuine issue of material fact with regard to plaintiff's negligence claim. To recover damages for injury resulting from actionable negligence of defendant, plaintiff must show the existence of some legal duty owed to plaintiff by defendant, as well as defendant's breach of that duty, and that the breach was the proximate cause of plaintiff's injury. McNair v. Boyette, 282 N.C. 230, 236, 192 S.E.2d 457, 461 (1972). Because defendant's uncontroverted evidence proved that the contract created no duty of defendant to be alert and respond to weather conditions and roof leaks, plaintiff has failed to show an essential element of its negligence claim, i. e., the existence of the duty. Moore v. Fieldcrest Mills, Inc., supra.

Considering all the evidence before the trial court on defendant's motion for summary judgment, we conclude that defendant established his right to judgment as a matter of law and that summary judgment for defendant was properly granted.

Affirmed.

ARNOLD and HILL, JJ., concur.