Boone v. Fuller

226 S.E.2d 191 (1976) 30 N.C. App. 107

W. T. BOONE, Administrator of Nancy White Fuller, Plaintiff,
v.
Dave Foster FULLER, Defendant.

No. 769SC166.

Court of Appeals of North Carolina.

July 7, 1976.

Davis, Sturges & Tomlinson by Charles M. Davis, Louisburg, for plaintiff-appellee.

Yarborough, Jolly & Williamson by E. F. Yarborough, Louisburg, for defendant-appellant.

HEDRICK, Judge.

The record on appeal in this case was filed more than 150 days from the giving of notice of appeal in the court below and is subject to dismissal. App.R. 12(a). We have elected, however, to treat the appeal as a petition for writ of certiorari and have allowed the same.

The principal question presented by defendant for review is whether the trial court erred in ruling that there was no genuine issue as to the cause of death of decedent. He contends that the trial court erroneously treated his plea of guilty as a judicial admission establishing as a matter of law the fact that decedent died as a result of the assault upon her by defendant. We agree with defendant that his plea was not a judicial admission (see Stansbury, North Carolina Evidence 2d, § 166), but we believe that defendant has misconceived the reasoning for the entry of summary judgment below.

It is well-settled in North Carolina that, upon a motion for summary judgment, the moving party has the burden of offering evidence to show that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

The plea of guilty made by the defendant was an evidentiary admission by him that he did kill the decedent. See Grant v. Shadrick, 260 N.C. 674, 133 S.E.2d 457 (1963). Such evidence supported plaintiff's motion. Once plaintiff offered the plea into evidence, the defendant was not entitled to rest on his pleading but had the burden to come forward with evidence in contradiction to plaintiff's evidence to show that a genuine issue of fact did exist. Coakley v. Motor Co., 11 N.C.App. 636, 182 S.E.2d 260 (1971), cert. denied, 279 N.C. 393, 183 S.E.2d 244 (1971); Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970); G.S. 1A-1, Rule 56(e). This the defendant did not do. That the plea was the result of "plea bargaining" had no bearing on the truth of the plea entered. It was still an admission sworn to by defendant that he did in fact kill the decedent. Defendant's other allegation in his affidavit that he "believed" decedent died of pneumonia did not satisfy the requirement under G.S. 1A-1, Rule 56(e), that an affidavit "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", and could not have been considered by the court. Singleton v. Stewart, supra.

In short, the defendant offered no competent evidence to contradict plaintiff's evidence as to the cause of death. Plaintiff's evidence was sufficient to show that no genuine issue of fact as to the cause of death existed. Summary judgment for plaintiff on the issue as to the cause of death is affirmed.

Affirmed.

PARKER and ARNOLD, JJ., concur.