Carson v. Sutton , 35 N.C. App. 720 ( 1978 )

242 S.E.2d 535 (1978) 35 N.C. App. 720

W. W. CARSON, T/A Carson Gas Company
v.
Phillip D. SUTTON and Connie J. Sutton.

No. 773SC218.

Court of Appeals of North Carolina.

April 4, 1978.

Everett & Cheatham by C. W. Everett, Sr., and Edward J. Harper, II, Bethel, for plaintiff-appellee.

Willis A. Talton, Greenville, for defendants-appellants.

MORRIS, Judge.

Defendants contend that the trial court erred in granting plaintiff's motion for summary judgment. In support of their contention, defendants advance the arguments (1) that the supporting affidavits are "merely reiterative" of the allegations in plaintiff's complaint and (2) that the supporting affidavits are "inherently suspect".

Summary judgment may be granted where "the pleadings . . . together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). The party moving for summary judgment has the burden of showing there is no genuine issue of material fact. Loan Corp. v. Miller, 15 N.C.App. 745, 190 S.E.2d 672 (1972). However,

"[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." G.S. 1A-1, Rule 56(e).

Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976), dealt with circumstances similar to those presently before this Court had held that

". . . summary judgment may be granted for a party with the burden of proof on the basis of his own affidavits (1) when there are only latent doubts as to the affiant's credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize Rule 56(f); and (3) when summary judgment is otherwise appropriate." 289 N.C. at 370, 222 S.E.2d at 410.

This Court is confronted with two appropriate lines of inquiry: (1) Are there only "latent doubts" as to the affiants' credibility? (2) Is summary judgment otherwise appropriate?

Defendants contend that the testimony of the affiants is "inherently suspect" and, therefore, that plaintiff cannot meet the test of Kidd v. Early which allows only "latent doubts" as to the affiants' credibility.

In Kidd v. Early, supra, the Court stated that

". . . the motion should ordinarily be denied even though the opposing party makes no response, if (1) the movant's supporting evidence is self contradictory or circumstantially suspicious or the credibility of a witness is inherently suspect either because he is interested in the outcome of the case and the facts are peculiarly within his knowledge or because he has testified as to matters of opinion involving a substantial margin for honest error . . . ." 289 N.C. at 366, 222 S.E.2d at 408.

In the present case, for the affiants' testimony to be found "inherently suspect" the court would have to ascertain not only that the affiants were "interested in the outcome" but also that the affiants were testifying as to facts peculiarly within their own knowledge. Clearly, that situation does not exist in this case because all relevant facts to which the witnesses testified in their affidavits would be equally available to the defendants. The mere fact that the witness is an interested party does not render his testimony "inherently suspect". Taylor v. City of Raleigh, 290 N.C. 608, 625, 227 S.E.2d 576, 586 (1976); Kidd v. Early, supra. Thus, there are only "latent doubts" as to the affiants' credibility.

Defendants do not seriously contend that they set forth specific facts showing there was a genuine issue of fact. Defendants admittedly have chosen to rely on the generalized denials in their answer.

Defendants, in essence have argued that plaintiff's motion for summary judgment was not "appropriate" because the affidavits do not adequately "support" the motion. Defendants contend that the affidavits of W. W. Carson and Frances R. Carson are "merely reiterative" of the allegations in the complaint and that these affidavits only amount to plaintiff's "yelling a little louder". Thus, defendants conclude that plaintiff did not truly support his motion for summary judgment.

Defendants' argument rests heavily on Loan Corp. v. Miller, supra. Loan Corp. v. Miller, however, is clearly distinguishable. In that case, the flaw was not the moving party's failure to "support" her motion. The flaw was that the pleadings and affidavit affirmatively showed that a genuine issue of fact did exist: Was the defendant's signature forged? In the present case, however, just the opposite is true. No real issue of fact has been raised. There is only defendants' generalized denial.

Even assuming that an affidavit which was "merely reiterative" of the pleadings would not support a motion for summary judgment, summary judgment would still be appropriate in this case. The affidavits did reiterate the execution and delivery of the note and its terms and conditions. The affidavits also set out the reason for the execution of the note, certain circumstances surrounding the execution, the genuineness of the signatures, and the absence of any setoffs. Thus, in this case, the affidavits were not merely reiterative; they filled in numerous gaps left by the complaint.

Thus, plaintiff met the requirements of Kidd v. Early for obtaining a summary judgment. Indeed, a more appropriate case for applying Kidd v. Early is difficult to imagine. Where, as in this case, a party has shown that he is entitled to relief and the opposing party offers not even the slightest suggestion of a genuine issue of fact, the motion for summary judgment should be granted.

Finally, defendants have leveled a broadside attack on Kidd v. Early and the whole summary judgment procedure and have asserted that the procedure so applied amounts to a denial of the right to trial by jury. The same issue was addressed by the Court in Kidd v. Early. The Court held specifically that the procedure did not violate either the Constitution of North Carolina or the Constitution of the United States. Kidd v. Early, 289 N.C. at 368-70, 222 S.E.2d at 409 and 410.

Affirmed.

CLARK and MITCHELL, JJ., concur.