Baumann v. Smith, 787SC701

Citation254 S.E.2d 627,41 N.C.App. 223
Decision Date15 May 1979
Docket NumberNo. 787SC701,787SC701
CourtCourt of Appeal of North Carolina (US)
PartiesGeoffrey BAUMANN d/b/a Baumann Building & Company v. Mr. Peter SMITH and wife, Mrs. Mimi Smith.

Frank M. Wooten, Jr., by Thomas B. Carpenter, Jr., Greenville, for plaintiff-appellant.

Taylor, Brinson & Aycock, by James C. Marrow, Jr., Tarboro, for defendants-appellees.

CARLTON, Judge.

The sole question presented by this appeal is whether the trial court properly allowed defendants' motion for summary judgment.

G.S. 1A-1, Rule 56(c) provides in pertinent part as follows:

The (summary) judgment sought shall be rendered forthwith 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.

By the clear language of the rule itself, the motion for summary judgment can be granted only upon a showing by the movant (1) that there is no genuine issue as to any material fact, and (2) that the moving party is entitled to a judgment as a matter of law. Kiser v. Snyder, 17 N.C.App. 445, 194 S.E.2d 638 (1973). Upon motion for summary judgment the burden is on the moving party to establish the lack of a triable issue of fact. 11 Strong, N.C. Index 3d, Rules of Civil Procedure, § 56.2, p. 354. Where a moving party supports his motion for summary judgment by appropriate means, which are uncontroverted, the trial judge is fully justified in granting relief thereon. However, it is further clear that summary judgment should be granted with caution and only where the movant has established the nonexistence of any genuine issue of fact. That showing must be made in the light most favorable to the party opposing the summary judgment and that party should be accorded all favorable inferences that may be deduced from the showing. The reason for this is that a party should not be deprived of an adequate opportunity fully to develop his case by witnesses in a trial where the issues involved make such procedure the appropriate one. Rogers v. Peabody Coal Co., 342 F.2d 749 (6th Cir. 1965). The papers of the moving party are carefully scrutinized and those of the opposing party are, on the whole, indulgently regarded. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

Of particular pertinence to the case at bar is this portion of subsection (e) of Rule 56:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Subsection (e) of Rule 56 does not shift the burden of proof at the hearing on motion for summary judgment. The moving party still has the burden of proving that no genuine issue of material fact exists in the case. However, when the moving party by affidavit or otherwise presents materials in support of his motion, it becomes incumbent upon the opposing party to take affirmative steps to defend his position by proof of his own. He may not rest upon the mere allegations or denial of his pleading, for he does so at the risk of having judgment entered against him. The opposing party need not convince the court that he would prevail on a triable issue of material fact but only that the issue exists. See Shuford, N.C. Civil Practice and Procedure, § 56-9, p. 475; Millsaps v. Contracting Company, 14 N.C.App. 321, 188 S.E.2d 663 (1972); Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971). Also, subsection (e) clearly precludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts. Nasco Equip. Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976). And, subsection (e) clearly states that the unsupported allegations in a pleading are insufficient to create a genuine issue of fact where the moving adverse party supports his motion by allowable evidentiary matter showing the facts to be contrary to that alleged in the pleadings. Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970).

In his brief, plaintiff argues that his complaint was sufficient to state these legal theories under which defendants might be liable to him: (1) A contract with Lee Miles, in which event defendants would be liable for undisbursed funds under the subcontractor's lien, (2) a contract directly with defendants by which they would be liable to him under the alleged agreement to pay him at an hourly rate and for the cost of materials required, and (3) if it should be determined that no contractual arrangement existed, then a claim in Quantum meruit for the reasonable value of the services and materials. We agree with plaintiff that G.S. 1A-1, Rule 8(e)(2) would allow the alternative pleading of these claims. We also agree that his complaint was sufficient to adequately state his claims under the second and third theories upon which he relies. However, we do not believe his complaint sufficient to state a claim for relief under the first theory which he argues. For that reason, we cannot find the trial court's allowance of the motion for summary judgment erroneous for the primary reason argued by the plaintiff in his brief, To wit, that the trial court ignored or failed to understand the first theory relied on by plaintiff at the summary judgment hearing.

In contending that his complaint stated a claim for relief pursuant to Part 2, Article 2, Chapter 44A of the General Statutes, plaintiff relies on the liberal pleading rules set out in G.S. 1A-1, Rule 8. Subsection (a) of that rule provides in pertinent part as follows:

(a) Claims for Relief A pleading which sets forth a claim for relief, whether an original claim, counterclaim, crossclaim, or third party claim shall contain

(1) A short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved showing that the pleader is entitled to relief, and

(2) A demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

Plaintiff's primary argument on appeal is that the trial court, at the summary judgment hearing, interpreted his complaint to only state claims for relief under an express contract between him and defendants and under the theory of Quantum meruit. He does not concede that the trial court's ruling was proper in granting summary judgment under those two theories but does argue that the trial court ignored his first claim for relief which was that a contract existed between him and the primary contractor, Lee Miles, and he is therefore entitled to relief under Part 2, Article 2 of Chapter 44A of the General Statutes. Since the trial court did not find facts in its order allowing summary judgment, such findings not being required, we are unable to say whether the trial court gave consideration to that theory. We do not believe, however, that the trial court should have given consideration to that theory because we do not believe plaintiff's complaint complied with the requirements of Rule 8(a) stated above. With respect to this theory, plaintiff's complaint did not give "a short and plain statement of the claim sufficiently particular to give the court and the parties notice of the transactions . . . intended to be proved showing that the pleader is entitled to relief . . . ." The only reference to this theory in plaintiff's complaint is contained in paragraph 16 which reads as follows: "That plaintiff has filed a notice of claim of lien pursuant to Article 2 of Chapter 44A of the North Carolina General Statutes against defendants herein and their premises upon which said construction and renovation work was performed by plaintiff." For example, the complaint fails to state whether the defendants, as "obligors", made further payments to the contractor after receiving notice of lien, such as would make them personally liable to him under G.S. 44A-20(a), (b). Moreover, read contextually, it is obvious that the entire thrust of plaintiff's complaint is to establish an express contract between him and the defendants or to establish a claim for relief based on Quantum meruit. While we construe pleadings liberally, the "short and plain statement of the claim" required by G.S. 1A-1, Rule 8(a)(1) requires more than a general statement that a notice for relief has been filed pursuant to some statute.

There is another, and more compelling, reason for concluding that plaintiff did not state a claim for relief under the theory of a...

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6 cases
  • Barnes v. Cargill, Inc., 88-2215
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 11 Mayo 1989
    ...received such services or goods. Vetco Concrete Co. v. Troy Lumber Co., 256 N.C. 709, 124 S.E.2d 905, 908 (1962); Baumann v. Smith, 41 N.C.App. 223, 254 S.E.2d 627, 632 (1979), reversed on other grounds 298 N.C. 778, 260 S.E.2d 626 Here, there is no dispute that the plaintiffs contracted wi......
  • Rink & Robinson, PLLC v. Catawba Valley Enters., LLC
    • United States
    • Court of Appeal of North Carolina (US)
    • 1 Mayo 2012
    ...N.C. 288, 292, 182 S.E.2d 345, 347 (1971) (citation omitted). However, “more than a general statement” is required. Baumann v. Smith, 41 N.C.App. 223, 229, 254 S.E.2d 627, 631 (1979). “A mere assertion of a grievance is insufficient to state a claim upon which relief can be granted. Some de......
  • Dealers Specialties, Inc. v. Neighborhood Housing Services, Inc., 805DC1167
    • United States
    • Court of Appeal of North Carolina (US)
    • 6 Octubre 1981
    ...issue of fact, and the motion must be considered in the light most favorable to the party opposing summary judgment. Baumann v. Smith, 41 N.C.App. 223, 254 S.E.2d 627, rev'd on other grounds, 298 N.C. 778, 260 S.E.2d 626 (1979). We conclude that defendant has not met this burden. The bare d......
  • Renfro v. Meacham, 808SC522
    • United States
    • Court of Appeal of North Carolina (US)
    • 3 Febrero 1981
    ...moving party to establish the lack of a triable issue of fact. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Baumann v. Smith, 41 N.C.App. 223, 254 S.E.2d 627 (1979). The motion must be considered in a light most favorable to the party opposing summary judgment, Baumann v. Smith, supr......
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