Baumann v. Smith

260 S.E.2d 626 (1979) 298 N.C. 778

Geoffrey BAUMANN d/b/a Baumann Building and Company
v.
Mr. Peter SMITH and wife, Mrs. Mimi Smith.

No. 61.

Supreme Court of North Carolina.

December 4, 1979.

Frank M. Wooten, Jr., by Thomas B. Carpenter, Jr., Greenville, for plaintiff-appellant.

Taylor, Brimson & Aycock by James C. Marrow, Jr., Tarboro, for defendants-appellees.

BRANCH, Chief Justice.

The sole question presented by this appeal is whether the Court of Appeals erred in affirming the trial court's granting of summary judgment for defendants. Plaintiff contends that defendants failed to meet their burden of showing that there was no genuine issue as to any material fact, and consequently summary judgment should not have been granted even though plaintiff offered no proof in opposition to the motion.

G.S. 1A-1, Rule 56 (Summary judgment), the statute pertinent to the decision of this appeal, provides in part:

(c) . . . The [summary] judgment shall be rendered forthwith 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 a judgment as a matter of law. . . .

* * * * * *

(e) . . . 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.

The summary judgment rule is for the disposition of cases where there is no genuine issue of fact and its purpose is to eliminate formal trials where only questions of law are involved. Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). "Two types of cases are involved: (a) Those where a claim or defense is utterly baseless in fact, and (b) those where only a question of law on the undisputable facts is in controversy and it can be appropriately decided without full exposure of trial." McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972); Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).

"[I]n ruling on a motion for summary judgment the court does not resolve issues of fact and must deny the motion if there is any issue of genuine material fact." Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). The movant always has the burden of showing that there is no triable issue of fact and that he is entitled to judgment as a matter of law. Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978); Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). In considering the motion, the trial judge carefully scrutinizes the papers of the moving party and resolves all inferences against him. Kidd v. Early, supra; Caldwell v. Deese, supra.

In interpreting G.S. 1A-1, Rule 56, we have recognized that under some circumstances the trial judge may properly deny the motion for summary judgment even when the nonmoving party fails to offer competent counter-affidavits or other evidence as provided by the statute.

In Savings & Loan Association v. Trust Co., 282 N.C. 44, 191 S.E.2d 683 (1972), the plaintiff opposed a motion for summary judgment but filed no counter-affidavit or other evidence in opposition thereto. In reversing the trial court's granting of the motion, this Court concluded that the defendant's supporting affidavit, even if treated as having complied with the requirements of Rule 56(e), failed to satisfy his burden as the moving party. Justice Lake writing for the Court noted:

Irrespective of who has the burden of proof at trial upon issues raised by the pleadings, upon a motion for summary judgment the burden is upon the party moving therefor to establish that there is no genuine issue of fact remaining for determination and that he is entitled to judgment as a matter of law (Citation omitted). . . . "If the movant's forecast [of evidence which he has available for presentation at trial] fails to do this, summary judgment is not proper, whether or not the opponent responds." Thus, . . . (Citation omitted), "The evidentiary matter supporting the moving party's motion may not be sufficient to satisfy his burden of proof, even though the opposing party fails to present any competent counter-affidavits or other materials."

Id. at 51-52, 191 S.E.2d at 688.

In light of the principles of law discussed above, we now consider the circumstances of the instant case. Here, defendants in moving for summary judgment submitted a supporting affidavit which on its face merely reaffirmed certain paragraphs of the verified answer and stated that defendants entered into an agreement with Lee Miles, a copy of which was attached. Plaintiff did not submit an opposing affidavit but elected to stand on his verified complaint.

The submitted affidavit did not challenge or alter the fact that the complaint alleged, and the answer denied, the existence of a contract between the parties. The defendants did not meet their burden of proof, and we hold that summary judgment was not "appropriate" within the meaning of Rule 56(e). To hold otherwise would permit a movant under these circumstances to deprive the opposing party of a trial even though a genuine issue of material fact is presented.

For the reasons stated above, the decision of the Court of Appeals upholding summary judgment for defendant is

REVERSED.

CARLTON, J., did not participate in the consideration or decision of this case.