Ballinger v. North Carolina Dept. of Revenue
| Citation | 59 N.C.App. 508,296 S.E.2d 836 |
| Decision Date | 16 November 1982 |
| Docket Number | No. 8118SC1230,8118SC1230 |
| Parties | 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. |
| Court | Court of Appeal of North Carolina (US) |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Boylan, Raleigh, for defendant-appellee.
Max D. Ballinger, Greensboro, for plaintiffs-appellants.
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...
To continue reading
Request your trial
-
Estrada v. Jaques
...judgment to the surgeons. Summary judgment is appropriate when the movant establishes a complete defense, Ballinger v. N.C. Dep't of Revenue, 59 N.C.App. 508, 296 S.E.2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E.2d 645 (1983), or when there is no genuine issue of material fact. Best v......
-
Lee v. Keck, 8315SC281
...moving party, defendants bore the burden of showing that they had a complete defense as a matter of law. See Ballinger v. Dept. of Revenue, 59 N.C.App. 508, 296 S.E.2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E.2d 645 (1983). No general notice to creditors appears in the record, and de......
-
Jones v. Asheville Radiological Group
...v. National Service Industries, Inc., 79 N.C.App. 688, 690, 340 S.E.2d 510, 512 (1986); see also Ballinger v. North Carolina Dept. of Revenue, 59 N.C.App. 508, 296 S.E.2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E.2d 645 (1983) (where this Court held that "[w]hen defendants establish a......
-
Abell v. Nash County Bd. of Educ.
...or by conclusively establishing a complete defense. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982); Ballinger v. Secretary of Revenue, 59 N.C.App. 508, 296 S.E.2d 836 (1982), cert. denied, 307 N.C. 576, 299 S.E.2d 645 (1983). If the moving party forecasts evidence which would entitle......