Ballinger v. Secretary of the Department of Revenue

296 S.E.2d 836 (1982)

C.M. BALLINGER, E.R. Ballinger, and M.D. Ballinger, heirs of the Estate of W.T. Ballinger, and the Estate of W.T. Ballinger, Deceased
v.
The Secretary of the NORTH CAROLINA DEPARTMENT OF REVENUE, The North Carolina Department of Revenue, and The State of North Carolina.

No. 8118SC1230.

Court of Appeals of North Carolina.

November 16, 1982.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for defendant-appellee.

Max D. Ballinger, Greensboro, for plaintiffs-appellants.

MORRIS, Chief Judge.

Plaintiffs' first assignment of error is that the court erred in allowing defendants' motion for summary judgment with reference to the issue of whether the order purportedly signed by Howard Coble on 7 January 1977 was, in fact, signed by Howard Coble while he was still Secretary of the North Carolina Department of Revenue. Defendants responded to the complaint filed against them with a verified answer and an affidavit, both of which the court may consider on a summary judgment motion. See Huss v. Huss, 31 N.C.App. 463, 230 S.E.2d 159 (1976). Defendants' answer, verified by Mark G. Lynch, Howard Coble's successor as Secretary of Revenue, stated that Coble did in fact execute the final decision in question on 7 January 1977. In addition, Howard Coble's affidavit in which he swears under oath that he executed and entered the decision on 7 January 1977, before he resigned as Secretary of Revenue, accompanied defendants' summary judgment motion.

On the other hand, plaintiffs produced no evidence to support their conclusory allegation that Coble did not sign the final decision or that the decision was not properly signed and entered.

When the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party's case, or otherwise suffer a summary judgment.

Connor Co. v. Spanish Inns, 294 N.C. 661, 675, 242 S.E.2d 785, 793 (1978). Neither plaintiffs' complaint nor their response to defendants' summary judgment motion could be considered as affidavits because neither was verified. The evidence plaintiffs offered consisted of Jan Wood's affidavit concerning the valuation of the property. This evidence was irrelevant because the property valuation was not in issue. Plaintiffs also offered the transmittal letter dated 11 January 1977 and postmarked 13 January 1977 as evidence that Coble did not sign the final decision while he was Secretary of Revenue, but this evidence aids only in establishing when plaintiffs received notice of the final decision rather than when the decision itself was executed. Because plaintiffs were unable to support their claim with facts that Coble did not execute the final decision while he was Secretary of Revenue, summary judgment was properly granted in favor of defendants on this issue.

Plaintiffs' second assignment of error is that the court erred in concluding that there were no genuine issues of material fact, in dismissing plaintiffs' action, and in granting final judgment against plaintiffs on all matters and things raised in pleadings and documents filed. This argument is based on plaintiffs' belief that this lawsuit involves the valuation of the estate's real property. However, plaintiffs' complaint does not set forth real property valuation as a defense to the taxes assessed against them. The complaint must set forth the cause of action on which plaintiffs hope to recover before the court can award recovery, if any. See Queen v. Jarrett, 258 N.C. 405, 128 S.E.2d 894 (1962). "The function of a complaint is to state in a plain and concise manner the material, essential or ultimate facts which constitute the cause of action...." Jones v. Loan Association, 252 N.C. 626, 638, 114 S.E.2d 638, 647 (1960).

In this case, the sole grounds for recovery alleged in plaintiffs' complaint is that the final decision was not validly issued or charged during Howard Coble's term of office as Secretary of Revenue. Defendants responded to the complaint by addressing this sole issue. As previously discussed with plaintiffs' first assignment of error, defendants' verified answer and affidavit established that Howard Coble did in fact execute the final decision on 7 January 1977 while he was still Secretary of the Department of Revenue. No genuine issue as to material fact existed, because plaintiffs presented no evidence in support of their conclusory allegation that the final decision was not validly executed. Plaintiffs asserted no other grounds for recovery and did not elect to amend their complaint to allege additional grounds on which recovery could be granted. When defendants establish a complete defense to plaintiffs' claim, they are entitled to the quick and final disposition of that claim which summary judgment provides. See Oakley v. Little, 49 N.C.App. 650, 272 S.E.2d 370 (1980). Under these circumstances, summary judgment was properly entered and the judgment of the trial court must be

Affirmed.

WEBB and WHICHARD, JJ., concur.