Carroll v. Rountree

• Decision Date: 05 October 1977
• Docket Number: No. 763SC989,763SC989
• Parties: William F. CARROLL v. H. Horton ROUNTREE.
• Court: North Carolina Court of Appeals

Page 566

237 S.E.2d 566

34 N.C.App. 167

William F. CARROLL v. H. Horton ROUNTREE.

No. 763SC989.

Court of Appeals of North Carolina.

Oct. 5, 1977.

Nye, Mitchell & Bugg, by John E. Bugg, Durham, for plaintiff appellant.

Teague, Johnson, Patterson, Dilthey & Clay, by Ronald C. Dilthey, Raleigh, for defendant appellee.

MORRIS, Judge.

The purpose of the motion for summary judgment is to allow the court to determine, prior to trial, whether there exists any genuine issue with respect to a material fact. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972); Britt v. Britt, 26 N.C.App. 132, 215 S.E.2d 172 (1975), and if the court determines there is no genuine issue of material fact, an early effective disposition of the matter is possible under § 1A-1, Rule 56. Britt v. Britt, supra. It is not within the purview of the summary judgment procedure for the court to resolve disputed material issues of fact. Here it appears from the judgment that the court treated the hearing as a nonjury trial of the case on its merits apparently considering it his function to find facts from the pleadings, affidavits, and interrogatories, make conclusions of law and enter final judgment between the parties. We have repeatedly held that finding facts in a judgment entered on a motion for summary judgment is unnecessary and ill advised simply because to do so indicates that a fact question is presented. Wall v. Wall, 24 N.C.App. 725, 212 S.E.2d 238 (1975); cert. den. 287 N.C. 264, 214 S.E.2d 437; Stonestreet v. Motors, Inc., 18 N.C.App. 527, 197 S.E.2d 579 (1973). Where no genuine issue of material fact exists, and the court finds facts, the implication that a fact question is presented is, of course, unwarranted. That is not the situation here. The pleadings, affidavits, and interrogatories clearly present a genuine issue of material fact.

Plaintiff alleges in his complaint and avers in his affidavit that it was agreed between him and defendant that the check would not be delivered to plaintiff's wife and her attorney until the deed of separation and stipulation of dismissal were executed by her, or at least simultaneously therewith, and that the check was delivered to defendant on or about 19 June 1972 to be held "in trust or in escrow" for the purposes stated. This was categorically denied by defendant's answer.

Plaintiff's interrogatory No. 39 was as follows: "Was there an agreement between the plaintiff and defendant that the wife would not receive her check until she had signed the Deed of Separation and the Stipulation of Dismissal?" Defendant's answer to that interrogatory is: "There was no such agreement between plaintiff and defendant. In fact, plaintiff never gave defendant the check. The check was given to defendant by Mr. R. E. Carroll whose signature appears on such check."

Plaintiff's affidavit avers the agreement to be the same as his pleadings. Defendant, in his affidavit, did not specifically again deny plaintiff's version of the agreement. However, he averred: "I was to prepare the land deed for the signature of Elizabeth R. Carroll and was to deliver to Mr. M. E. Cavendish the settlement check of $10,969.01. Mr. M. E. Cavendish was to prepare the separation agreement and stipulation of dismissal for the signatures of both he (sic) and his client. In June, 1972, the settlement check was delivered to Mr. Cavendish's office . . . The delivery of the settlement check to the office of Mr. M. E. Cavendish was done pursuant to the method and means agreed upon in accomplishing this settlement. It is both customary and the accepted practice by the attorneys in Eastern North Carolina and particularly in Pitt County, that settlement checks are forwarded to the receiving client's attorney, who in turn will be responsible for obtaining his client's signatures to the agreed documents before the disbursement of such funds. Although the funds were disbursed to Mrs. Elizabeth Carroll before she executed the separation agreement and the stipulation of dismissal, this was done without Mr. Cavendish's knowledge and while he was not present in the office."

Plaintiff's cause of action is based, not on the allegation that he never received the services for which he was paid, but on the premise that defendant delivered the check without receiving the signed documents, thereby breaching the agreement with plaintiff. It is readily apparent that there is a real dispute between plaintiff and defendant as to what the agreement was with respect to the delivery of the check. That this is a material fact is just as apparent and is one which must be submitted to a jury, defendant having requested a jury trial. Defendant concedes that he made the misrepresentations alleged but contends they were made without knowledge of their falsity.

Since it is our opinion that summary judgment was erroneously entered, we think it advisable that we discuss the question of damages.

In its judgment the court's first conclusion of law was as follows: " As to the plaintiff's first count, the plaintiff has not made any allegations which entitle him to recover from the defendant. He has alleged that he delivered to the defendant the sum of $10,969.01 to settle an action between him and his former wife. This action has been settled and the defendant and his former wife are now divorced. The defendant has received what he contracted to receive and has suffered no monetary damage even if the defendant breached the contract." Plaintiff excepted to this conclusion, as he apparently felt compelled to do since the court erroneously made findings of fact and conclusions of law. We do not deem it necessary to discuss the efficacy of the conclusion of law except as it relates to damages. If the jury should find the agreement between the parties to be as plaintiff contends, and that defendant breached the agreement, plaintiff would be entitled to such damages as he could show were the natural and probable results of the breach, Maxwell v. Distributing Co., 204 N.C. 309, 168 S.E. 403 (1933), but, in any event, proof of a breach would entitle him to nominal damages at least, Bryan Builders Supply Co. v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968), and prevent a directed verdict for defendant.

With respect to plaintiff's second count, wherein he sought damages for mental and emotional distress suffered by him the court concluded: "As to the second count the plaintiff is not entitled to recover in this action for being emotionally upset or physically ill. While it may be the natural, probable and foreseeable consequences for a widow to suffer mental anguish for having her deceased husband buried in a defective coffin, it should not be so for a concealment of the fact that the separation agreement had not been signed and the plaintiff's wife's action against him had not been dismissed. The law requires that men be of sterner stuff." In passing we note that we are not familiar with the legal requirement referred to in the last sentence of the conclusion of law. We assume that the court, by its remark with respect to damages to a widow "for having her deceased husband buried in a defective coffin" is referring to Lamm v. Shingleton, 231 N.C. 10, 55 S.E.2d 810 (1949). There, as here, the action was essentially one for breach of contract not an action in tort. In speaking to that question the Court said:

"This is essentially an action for damages for breach of contract. Plaintiff alleges a contract to furnish a casket and watertight vault and conduct the funeral and inter the body, the breach thereof by failure to lock the vault, and damages resulting from the breach. The further allegation that the defendants' failure to lock the vault at the time of the burial, as a result of which water and mud entered the vault and forced its top to the surface, was due to their negligence and carelessness does not convert it into an action in tort.

The defendants held themselves out as specially qualified to perform the duties of an undertaker. When they undertook to conduct the funeral of plaintiff's deceased husband they impliedly covenanted to perform the services contemplated by the contract in a good and workmanlike manner. Any breach of the duty thus assumed was a breach of the duty imposed by the contract and not by law. " Lamm v. Shingleton, supra at 13, 55 S.E.2d at 812.

So in the case sub judice, it becomes necessary to determine whether, should the jury find a breach of contract, mental anguish is an element of damages to be considered by the jury for the breach of this contract. In Lamm, the Court noted that damages for mental anguish could be recovered in an action for breach of contract to marry, Allen v. Baker, 86 N.C. 91, 40 Am.Rep. 444; Anno. 41 L.R.A. n.s. 842 and for failure to transmit a death message when the import of the message and the interest of the intended recipient is made known to the transmitter at the time the message is accepted by the telegraph company. Russ v. Telegraph Co., 222 N.C. 504, 23 S.E.2d 681 (1943); Betts v. Telegraph Co., 167 N.C. 75, 83 S.E. 164 (1914); Thomason v. Hackney, 159 N.C. 299, 74 S.E. 1022 (1912). These situations and the one in Lamm are, however, singular. The usual contract is commercial in nature and the pecuniary interests of the parties is the primary factor, since they relate to property, or to services to be rendered in connection with business, or to services to be rendered in professional operations. Damages for mental anguish are, therefore, generally not recoverable. There are exceptions. The death message cases and the burial contract cases are among the exceptions. Plaintiff concedes that in North Carolina, in the typical breach of...