Shook Builders Supply Co. v. Eastern Associates, Inc.

211 S.E.2d 472 (1975) 24 N.C. App. 533

SHOOK BUILDERS SUPPLY COMPANY
v.
EASTERN ASSOCIATES, INC., et al.

No. 7425SC898.

Court of Appeals of North Carolina.

February 5, 1975.

Tate, Weathers & Young by E. Murray Tate, Jr., Hickory, for plaintiff appellee.

Sowers, Avery & Crosswhite by William E. Crosswhite, Statesville, for defendants appellants.

ARNOLD, Judge.

Rule 56(c) of the North Carolina Rules of Civil Procedure provides in part that summary judgment shall issue "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." The moving party has the burden of showing that there is no triable issue of fact. For this reason his papers "are carefully scrutinized." 6 Moore, Federal Practice § 56.15[8] (2d ed. 1971). See Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

In the instant case, plaintiffs' motion for summary judgment was supported by: (1) the pleadings; (2) Exhibit A, the original contract; (3) Exhibit B, the purported settlement; and (4) defendants' admission to signing Exhibit B. Plaintiff also submitted the affidavit of John Shook stating that the facts set out in the motion were true, that he participated in the negotiations leading up to and the execution of Exhibits A and B, and that defendants had paid none of the amounts agreed upon. After carefully reviewing the record, we are of the opinion that plaintiff's papers are insufficient to foreclose issues of fact raised by the pleadings.

As plaintiffs' president, John Shook is an interested witness. His credibility itself may be such an issue of fact as will take the case to trial. See Cross v. United States, 336 F.2d 431 (2d Cir. 1964); United States v. United Marketing Association, 291 F.2d 851 (8th Cir. 1961). In Lee v. Shor, 10 N.C.App. 231, 235, 178 S.E.2d 101, 104 (1970), this Court said: "The fact that the witness is interested in the result of the suit has been held sufficient to require the credibility of his testimony to be submitted to the jury. Sonnentheil v. Christian Moerlein Brewing Co., 172 U.S. 401, 408, 19 S.Ct. 233, 236, 43 L.Ed. 492, 495." See generally 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 (Wright ed. 1958).

John Shook's affidavit in effect verifies the motion for summary judgment, which in turn reiterates the allegations in the complaint. It does not establish that plaintiff's allegations unquestionably are true. Moreover, considering the minutes of the December meeting in conjunction with Shook's letter explaining the corrected figures, we cannot agree with plaintiff that as a matter of law these minutes represent an integrated settlement agreement and are not just a memorandum of successive offers to settle. An affidavit as to legal effect does not make it so.

We are mindful that under Rule 56(e) "an adverse party may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial." Nevertheless, defendants' failure to file affidavits in opposition to plaintiff's motion is not fatal since plaintiff initially has not met the burden imposed by Rule 56(c) of showing the absence of a genuine issue of material fact. See Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972); Whitley v. Cubberly, 24 N.C.App. 204, 210 S.E.2d 289 (1974); Tolbert v. Tea Co., 22 N.C.App. 491, 206 S.E.2d 816 (1974); Borden, Inc. v. Wade and Moore v. Brown, 21 N.C.App. 205, 203 S.E.2d 666 (1974). See also Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Plaintiff, as movant for summary judgment, did not make it perfectly clear that it was entitled to judgment as a matter of law. Summary judgment was error.

Reversed.

VAUGHN and MARTIN, JJ., concur.