Hinson v. Jefferson

200 S.E.2d 812 (1973) 20 N.C. App. 204

Barbara H. HINSON
v.
William W. JEFFERSON et al.

No. 733DC787.

Court of Appeals of North Carolina.

December 12, 1973.

Everett & Cheatham by C. W. Everett, Greenville, for plaintiff appellant.

Gaylord & Singleton, Greenville, by Mickey A. Herrin, Greenville, for defendant appellees.

BRITT, Judge.

Two questions are presented: (1) Did the court err in denying plaintiff's motion for summary judgment? (2) Did the court err in entering summary judgment in favor of defendants and dismissing the action? We answer the first question in the negative and the second in the affirmative.

(1). Summary judgment is proper when 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 the moving party is entitled to judgment as a matter of law. G.S. § 1A-1, Rule 56. Lee v. Shor, 10 N. C.App. 231, 178 S.E.2d 101 (1970). The burden is on the moving party to establish the lack of a triable issue of fact. Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971). In considering a motion for summary judgment, the court must look at the record in the light most favorable to the party opposing the motion. Blackmon v. Valley Decorating Co., 11 N. C.App. 137, 180 S.E.2d 396 (1971).

Any cause of action alleged by plaintiff related to 19 October 1971, the date of the deed from defendants to plaintiff. The affidavits and other materials presented by plaintiff on her motion for summary judgment tended to show the condition of the lot, and rules and regulations pertaining to septic tanks and other sewage disposal facilities in Pitt County, subsequent to 15 February 1972. For example, the affidavit of W. M. Pate, Sanitarian Supervisor of the Pitt County Health Department, refers to a certification of 27 December 1972, and attached to the affidavit is a letter from Pate to plaintiff referring to "findings in March 1972." Plaintiff's Exhibit "B," REGULATIONS GOVERNING SEWAGE DISPOSAL IN PITT COUNTY, disclose that the regulations were adopted on 1 March 1972. The affidavit of Roy R. Beck relates to "an inventory and evaluation" of the lot as of 16 February 1972.

For failure to carry her burden to establish the lack of a triable issue of fact, plaintiff was not entitled to summary judgment.

(2). Since defendants did not file a motion for summary judgment, the cause was heard solely on plaintiff's motion. While G.S. § 1A-1, Rule 56(c) provides that "[s]ummary judgment, when appropriate, may be rendered against the moving party," we think it was not appropriate in this case.

For the reasons stated, the judgment dismissing this action is

Reversed.

PARKER and BALEY, JJ., concur.