Coleman v. Shirlen
| Decision Date | 01 September 1981 |
| Docket Number | No. 8026SC1074,8026SC1074 |
| Citation | 281 S.E.2d 431,53 N.C.App. 573 |
| Court | North Carolina Court of Appeals |
| Parties | Danny Ray COLEMAN and Sandra J. Coleman v. Norman F. SHIRLEN, Jr. and wife, Jessie Shirlen, Norman Shirlen, Sr., and wife, Reba Shirlen and Ronald Albert Shirlen. |
W. J. Chandler, Charlotte, for plaintiff-appellant.
Michael P. Carr, Charlotte, for defendants-appellees.
Plaintiffs first assign error to the granting by the trial judge of the defendants' motion to dismiss for failure to state a claim upon which relief can be granted. G.S. 1A-1, Rule 12(b) provides, however, that if "matters outside the pleading are presented to and not excluded by the court, the (Rule 12(b)(6)) motion shall be treated as one for summary judgment and disposed of as provided in Rule 56 ...." See Smith v. Smith, 17 N.C.App. 416, 420-21, 194 S.E.2d 568, 570 (1973). The trial court's order indicates that it was "(b) ased on the matters presented to the Court, which consisted of the documentary evidence in the Court's file and the statements of counsel ...." As the record before us indicates that matters outside the pleadings were presented and not excluded by the trial judge, we must view defendants' motion to dismiss for failure to state a claim for relief, as a motion for summary judgment. Thus we consider only plaintiffs' second assignment of error which was to the trial judge's order allowing defendants' motion for summary judgment.
Plaintiffs' cause of action was based on an alleged civil conspiracy to abduct the child, Martyn Ryan Shirlen, whose custody was vested in plaintiff Sandra Coleman under a separation agreement between Sandra Coleman and Norman Shirlen, Jr. A conspiracy is an agreement between two or more individuals to commit an unlawful act or to do a lawful act in an unlawful manner. Dickens v. Puryear, 302 N.C. 437, 456, 276 S.E.2d 325, 337 (1981); Evans v. GMC Sales, 268 N.C. 544, 546, 151 S.E.2d 69, 71 (1966). To recover under this cause of action, plaintiffs must prove the existence of the agreement between the defendants, that one or more of the conspirators committed an overt, tortious act in furtherance of the conspiracy, and that plaintiffs suffered damages caused by acts committed pursuant to the conspiracy. Dickens v. Puryear, supra; Reid v. Holden, 242 N.C. 408, 414-415, 88 S.E.2d 125, 130 (1955).
On a motion for summary judgment, however, the burden on the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined. Blue Jeans Corp. v. Pinkerton, Inc., 51 N.C.App. 137, 138, 275 S.E.2d 209, 211 (1981). The burden shifts to the non-moving party to either show that a genuine issue of material fact exists or provide an excuse for not so doing, only if the movant carries its burden by showing that an essential element of the opposing party's claim is non-existent. Gregory v. Perdue, Inc., 47 N.C.App. 655, 656, 267 S.E.2d 584, 586 (1980).
The evidence presented to the trial court by defendants on the issues of the alleged conspiracy, abduction and resulting damage to plaintiffs, consists of an answer and affidavit verified by defendants Norman Shirlen, Sr., Reba Shirlen, and Ronald Albert Shirlen. These defendants have clearly not met their burden of establishing that no genuine issue exists as to any material facts. Lacking an adequately supported motion for summary judgment by defendants on these issues, we need not determine whether plaintiffs produced facts, as distinguished from allegations, sufficient to indicate that at trial they could prove, circumstantially or otherwise, the existence of an agreement between defendants to commit the unlawful act of abduction. See Dickens v. Puryear, supra; Edwards v. Ashcraft, 201 N.C. 246, 159 S.E. 355 (1931).
Defendants' answer and affidavit allege and describe a material breach by plaintiffs of the separation agreement. The general rule governing bilateral contracts requires that if either party to the contract commits a material breach of the contract, the other party should be excused from the obligation to perform further. 6 Williston, Contracts § 864, at 290 (3d ed. 1962). Thus, if no valid contract grants custody of the minor...
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...Failure to perform an independent promise does not excuse nonperformance on the part of the other party.... Coleman v. Shirlen, 53 N.C.App. 573, 577-78, 281 S.E.2d 431, 434 (1981). Whether Lake Mary's actions in the present case constituted a breach of the agreement, and whether the alleged......
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