Vernon, Vernon, Wooten, Brown & Andrews, P. A. v. Miller , 73 N.C. App. 295 ( 1985 )

326 S.E.2d 316 (1985)

VERNON, VERNON, WOOTEN, BROWN & ANDREWS, P.A.
v.
Ernest MILLER.

No. 8415DC632.

Court of Appeals of North Carolina.

March 5, 1985.

Vernon, Vernon, Wooten, Brown & Andrews, P.A. by Jeffrey A. Andrews, Burlington, for plaintiff-appellee.

Mary K. Nicholson, Greensboro, for defendant-appellant.

MARTIN, Judge.

We observe first that defendant did not set out, in the record on appeal, any exceptions or specific assignments of error as required by Rule 10(a) of the Rules of Appellate Procedure. We conclude, however, that none is required where, as here, the sole question presented in defendant's brief is whether the trial court erred in granting summary judgment in favor of the plaintiff. The appeal from the judgment is itself an exception thereto. See West v. Slick, 60 N.C.App. 345, 299 S.E.2d 657 (1983), rev'd on other grounds, ___ N.C.___, 326 S.E.2d 601 (1985). Our review is limited to whether, on the face of the record proper, summary judgment was appropriately entered. Because the record discloses that there exist genuine issues of material fact, we hold that summary judgment was erroneous and remand this case to the trial court.

G.S. 1A-1, Rule 56(c) provides that summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, 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 judgment as a matter of law." The rule authorizes the court to determine whether a genuine issue of fact exists, but does not authorize the court to resolve an issue of fact. Vassey v. Burch, 301 N.C. 68, 269 S.E.2d 137 (1980); Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). The trial judge does not sit as a fact finder. Billings v. Harris Co., 27 N.C.App. 689, 220 S.E.2d 361 (1975), aff'd, 290 N.C. 502, 226 S.E.2d 321 (1976). The party moving for summary judgment has the burden of showing the lack of any triable issue of fact; his papers are carefully scrutinized and all inferences are resolved against him. Kidd v. Early, supra. Facts asserted by the party answering a summary judgment motion must be accepted as true. Railway Co. v. Werner Industries, 286 N.C. 89, 209 S.E.2d 734 (1974). If the evidentiary materials filed by the parties indicate that a genuine issue of material fact does exist, the motion for summary judgment must be denied.

Applying the foregoing principles to the record properly before us, we examine the propriety of summary judgment for the plaintiff. Though initially denied by defendant, there appears to be no genuine issue of fact that defendant agreed to pay plaintiff $700.00 to examine title to the real estate, render a title opinion and obtain title insurance, and to pay plaintiff an additional amount, based upon hourly charges, for other services rendered by plaintiff in order to consummate the transaction. The evidentiary materials submitted at the hearing disclose, however, that the positions of the parties vary materially as to what services each contemplated would be covered by each phase of the fee agreement, and consequently, as to the amount due plaintiff pursuant to the "hourly charge" provision. The burden of proof in this case is upon the plaintiff to establish the terms of the fee agreement and that the fee charged is reasonable for the services rendered. See Randolph v. Schuyler, 284 N.C. 496, 201 S.E.2d 833 (1974). Although Mr. Andrews' letter to the defendant setting forth Andrews' understanding of the fee arrangement is certainly evidence of the terms of the agreement, it is only some evidence of the terms of the oral contract and does not resolve all of the ambiguities raised by defendant's affidavits. Plaintiff also submitted its time records to substantiate the hours for which it charged. While these records furnish evidence that plaintiff expended the claimed hours in rendering the services, they do not conclusively show that none of the claimed hours were actually spent in order to "clear the title," prepare a title opinion and obtain title insurance and therefore included in the $700.00 "flat fee." The defendant asserts otherwise, raising an issue as to the reasonableness of the hourly charges. The affidavits are conflicting and raises issues of credibility sufficient to defeat the plaintiff's motion for summary judgment and require a trial.

For the reasons stated, the entry of summary judgment in favor of the plaintiff is

Reversed.

WEBB and PHILLIPS, JJ., concur.