Whitley v. Coltrane , 65 N.C. App. 679 ( 1983 )

309 S.E.2d 712 (1983)

Marvin C. WHITLEY
v.
T. Worth COLTRANE and Marianne B. Bell, Executrix of the Estate of Deane F. Bell, Deceased.

No. 8219SC1255.

Court of Appeals of North Carolina.

December 20, 1983.

Gavin & Pugh by W. Ed Gavin, Asheboro, for plaintiff-appellee.

C. Richard Tate, Jr., High Point, for defendant-appellant.

EAGLES, Judge.

Defendant first asserts that the trial judge should have allowed her to withdraw her admission that the signature on the note was in fact the signature of Deane F. Bell. She contends that her failure to answer plaintiff's request for admission, which resulted in an admission of the genuineness of the signature, occurred through mistake or inadvertence. We find that the trial judge committed no error in failing to grant defendant's motion to withdraw her admission.

We first note that Rule 36(b) of the North Carolina Rules of Civil Procedure provides that "the court may permit withdrawal" of the admission, making the ruling upon a motion to withdraw an admission discretionary with the trial court. A trial judge may or may not allow withdrawal of an admission, and we find here no abuse of that discretion.

In any event, defendant's admission of the genuineness of the signature was superfluous in considering plaintiff's motion for summary judgment because plaintiffs' evidence on the signature issue was unrefuted. Defendant Coltrane's verified answers to interrogatories stated that defendant Coltrane observed defendant Deane F. Bell sign the original note. Defendant Coltrane is not disqualified as a witness by G.S. 8-51, the "Dead Man's Statute." Although he was a principal obligor on the note and a party to the lawsuit, a principal debtor may testify that the deceased surety executed the instrument sued on. This special rule is based on the fact the witness' interests are not affected; he remains liable notwithstanding. 1 Brandis, N.C. Evidence § 72 (2d rev. ed. 1982). Because plaintiff presented defendant Coltrane's competent evidence as to Deane F. Bell's execution of the note, defendant Marianne Bell can show no prejudice by the trial court's failure to grant her motion to withdraw her admission of genuineness of Deane F. Bell's signature.

Defendant's second assignment of error is that the trial court improperly considered the affidavits of Attorney P. Wayne Robbins and Lucille King in ruling on the motions for summary judgment. Rule 56(e) of the North Carolina Rules of Civil Procedure provides that affidavits in support of a motion for summary judgment "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." We find that the affidavits of Robbins and King met these requirements.

The substance of the affidavit of Robbins was that he had represented Lucille King in a lawsuit against T. Worth Coltrane on the note, that he had discussed the matter with Deane F. Bell, and that he had "exhibited the note to Dean [sic] and he acknowledged that he had signed it as a favor to Mr. Coltrane." G.S. 8-51 does not disqualify Robbins as a witness, because Robbins is neither a party nor a person with "direct legal or pecuniary interest" in the outcome of the litigation so as to make him an interested party. 1 Brandis, N.C. Evidence § 69 (2d rev. ed. 1982). Because an attorney for one of the parties to a lawsuit is held not to be an interested party for the purposes of G.S. 8-51, the "Dead Man's Statute," it is abundantly clear that an attorney for a non-party affiant is not an interested party. See, Propst v. Fisher, 104 N.C. 214, 10 S.E. 295 (1889); In re Simmons, 43 N.C.App. 123, 258 S.E.2d 466 (1979). Robbins' affidavit was based on personal knowledge and set forth facts that would be admissible into evidence in that the information was relevant to the issue of whether defendant Deane Bell had admitted signing the note.

Both Robbins' and King's affidavits show that the affiants are competent to testify on this matter. Summary judgment may be granted, when otherwise appropriate, on the basis of the moving party's own affidavits if there are only latent doubts as to the affiant's credibility and when, as here, the nonmoving party has failed to come forward with material that raises a genuine issue of fact. Kidd v. Early, 289 N.C. 343, 370, 222 S.E.2d 392, 410 (1976). Neither of these affiants' credibility is suspect on the grounds of an interest in the outcome or because their testimony concerned matters of opinion involving a substantial margin for honest error. Id. at 366, 222 S.E.2d at 408. We hold therefore that the affidavits of Robbins and King met the requirements of Rule 56(e) and were admissible at the hearing on plaintiff's motion for summary judgment.

Defendant's final assignment of error is that the trial judge improperly granted summary judgment in favor of plaintiff. Defendant contends that plaintiff failed to present competent evidence to show that Deane F. Bell actually signed the note. We do not agree.

Summary judgment is proper when the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, 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. Johnson v. Phoenix Mutual Life Inc. Co., 300 N.C. 247, 266 S.E.2d 610 (1980). Rule 56(e) provides, inter alia:

When 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.

It is true that not every failure to respond to a motion for summary judgment will require the entry of summary judgment. The moving party must satisfy his burden of proving that there is no genuine issue of any material fact. Kidd v. Early, supra. However, when the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party's case, or otherwise suffer a summary judgment. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661, 675, 242 S.E.2d 785, 793 (1978).

As previously noted, plaintiff presented defendant Coltrane's verified answers to interrogatories, stating that defendant Coltrane observed Deane F. Bell sign the original note. Defendant Marianne Bell presented no evidence in rebuttal, beyond the motion to withdraw her admission of the genuineness of the signature, which only repeated the denial of the allegations contained in her unverified answer. This did not present facts to controvert the evidence offered by plaintiff in support of his motion for summary judgment. The trial judge properly entered summary judgment in favor of plaintiff.

Affirmed.

WEBB and PHILLIPS, JJ., concur.