Best v. Perry

• Decision Date: 01 May 1979
• Docket Number: No. 788SC637,788SC637
• Citation: 41 N.C.App. 107,254 S.E.2d 281
• Court: North Carolina Court of Appeals
• Parties: Pennina Pearl Perry BEST v. William Edward PERRY.

Page 281

254 S.E.2d 281

41 N.C.App. 107

Pennina Pearl Perry BEST v. William Edward PERRY.

No. 788SC637.

Court of Appeals of North Carolina.

May 1, 1979.

Duke & Brown by John E. Duke, Goldsboro, for plaintiff-appellant.

Merritt & Gaylor by Cecil P. Merritt, Goldsboro, for defendant-appellee.

MITCHELL, Judge.

The plaintiff's sole contention on appeal is that the trial court erred in granting the defendant's motion for judgment on the pleadings. When matters not contained in the pleadings are presented to and not excluded by the trial court, a motion for judgment on the pleadings must be treated as a motion for summary judgment. G.S. 1A-1, Rule 12(c). The record before us indicates that affidavits were filed by the defendant with the trial court. The defendant's motion for judgment on the pleadings indicates that it is based " upon the pleadings and papers of record in the court file." The trial court's judgment indicates that it is based "Upon consideration of the pleadings, the arguments and other presentations by counsel." Additionally, the record before us does not at any point tend to indicate that the trial court excluded any matter or thing presented. As the record before us indicates that matters outside the pleadings were presented but does not indicate that such matters were excluded by the trial court, we must view the defendant's motion for judgment on the pleadings as though it had been a motion for summary judgment and determine whether judgment was correctly entered in accordance with the rules governing summary judgment.

The defendant's motion for summary judgment was properly granted in this case if the pleadings and affidavits presented to the trial court show that there is no genuine issue as to any material fact and that the defendant is entitled to judgment as a matter of law. G.S. 1A-1, Rule 56; Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). The pleadings and affidavits in the present case reveal that the plaintiff and others executed and delivered a warranty deed conveying eight lots in fee simple to the defendant. The defendant does not deny such facts and they are not in dispute. However, the plaintiff alleges and the defendant denies that the conveyance was subject to a parole trust.

A defending party may show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the claimant's claim for relief and that the claimant cannot prove the existence of that element. See Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Bank v. Evans, 296 N.C. 374, 250 S.E.2d 231 (1979); Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974). Where, as here, the defendant presents a forecast of evidence tending to show that the claimant is unable to prove the existence of an element essential to his claim, the defending party is entitled to judgment as a matter of law.

Until the defending party has forecast evidence tending to establish his right to judgment as a matter of law, the claimant is not required to present any evidence to support his claim for relief. However, once the defending party forecasts evidence which will be available to him at trial and which tends to establish his right to judgment as a matter of law, the claimant must present a forecast of the evidence which will be available for presentation at trial and which will tend to support his claim for relief. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); 2 McIntosh, N.C. Practice and Procedure § 1660.5 (2d ed. Phillips Supp.1970). If the claimant does not respond at that time with a forecast of evidence which will be available at trial to show that the defending party is not entitled to judgment as a matter of law, summary judgment should be entered in favor of the defending party.

A party may show that there is no genuine issue as to any material facts by showing that no facts are in dispute. In the present case, however, the plaintiff alleges and the defendant denies that the conveyance was subject to a parol trust. Thus, an issue is presented with regard to a fact.

Even where, as here, an issue of fact arises, a party may show that it is not a genuine issue as to a material fact by showing that the party with the burden of proof in the action will not be able to present substantial evidence which would allow that issue to be resolved in his favor. See Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897 (1972); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). Therefore, the issue in the present case of whether the conveyance by the plaintiff and others to the defendant was subject to a parol trust is not a genuine issue as to a material fact if it can be shown that the plaintiff cannot...