Commercial Credit Corporation v. McCorkle

198 S.E.2d 736 (1973) 19 N.C. App. 397

COMMERCIAL CREDIT CORPORATION
v.
Bobby Joe McCORKLE.

No. 7326DC448.

Court of Appeals of North Carolina.

September 12, 1973.

Fairley, Hamrick, Monteith & Cobb, by Laurence A. Cobb, Charlotte, for plaintiff.

Joseph B. Roberts, III, Mount Holly, for defendant.

BROCK, Chief Judge.

The record on appeal reflects that summary judgment was rendered upon a consideration of the pleadings alone. In the pleadings defendant denied the allegation of the amount alleged by plaintiff to be due under the contract. Plaintiff offered no supporting affidavits, depositions, or answers to interrogatories, but elected to stand upon its allegation in its complaint of a sum due which defendant denied. According to the stipulations filed in this Court both the complaint and the answer were verified.

The trial court, upon motion for summary judgment under Rule 56, should not undertake to resolve an issue of credibility. Lee v. Shor, 10 N.C.App. 231, 178 S.E.2d 101. In this case plaintiff alleges defendant is indebted to plaintiff; defendant denies the allegation. Where a defendant denies the existence of the debt alleged, unless admissions by defendant clearly show that his denial of the debt is utterly baseless in fact, defendant's denial raises a genuine issue as to a material fact. Where a genuine issue as to a material fact is raised, summary judgment is improper. See G.S. § 1A-1, Rule 56(c). In this case defendant's admission that he executed the Transfer of Interest Agreement does not render his denial of the debt to be baseless. From the pleadings alone it cannot be determined as a fact that defendant owes the plaintiff a sum of money in any amount.

Reversed.

MORRIS and PARKER, JJ., concur.