Oliver v. Roberts, 8021SC275

• Decision Date: 30 October 1980
• Docket Number: No. 8021SC275,8021SC275
• Citation: 271 S.E.2d 399,49 N.C.App. 311
• Court: North Carolina Court of Appeals
• Parties: James L. OLIVER, Jr. and Craven Venture Management, Inc. v. John B. ROBERTS and John Roberts, Ltd.

Page 399

271 S.E.2d 399

49 N.C.App. 311

James L. OLIVER, Jr. and Craven Venture Management, Inc. v.John B. ROBERTS and John Roberts, Ltd.

No. 8021SC275.

Court of Appeals of North Carolina.

Oct. 30, 1980.

White & Crumpler by Fred G. Crumpler, Jr., and Robert B. Womble, Winston-Salem, for plaintiffs-appellants.

Hudson, Petree, Stockton, Stockton & Robinson by Norwood Robinson and F. Joseph Treacy, Jr., Winston-Salem, for defendants-appellees.

ERWIN, Judge.

The question presented for our review is whether the trial court erred in granting defendants' motions to dismiss and for summary judgment pursuant to G.S. 1A-1, Rules 12(b)(6) and 56, of the Rules of Civil Procedure.We find that the motions were properly allowed.

We note at the outset that in granting defendants' motions, the trial court considered, inter alia, the depositions of the parties, the plaintiffs' amended complaint, the affidavits of plaintiffs, the affidavit of Alvin A. Goldhush, and the defendants' interrogatories to plaintiffCraven Management, Inc., and the answers thereto by Ben F. Craven, Jr.Because the trial court considered matters outside the pleadings in reaching its decision, the motion should be treated as a motion for summary judgment and disposed of in the manner provided in Rule 56.Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823(1971).

Where a motion for summary judgment is granted, the critical questions for determination upon appeal are whether on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law.Barbour v. Little, 37 N.C.App. 686, 247 S.E.2d 252, cert. denied, 295 N.C. 733, 248 S.E.2d 862(1978).In this regard, we find it instructive to note that "(w)hether there is a genuine issue of fact is not the question.The question is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is a genuine issue as to any material fact."(emphasis in original)Tuberculosis Assoc. v. Tuberculosis Assoc., 15 N.C.App. 492, 494, 190 S.E.2d 264, 265(1972).Therefore, although the presence of immaterial, factual questions does not preclude the grant of summary judgment, the moving party retains the continuing burden of establishing the nonexistence of any triable issue of fact.The movant may discharge this burden either by proving that an essential element of the opposing party's claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of its claim.Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795(1974).

Plaintiffs contend that the case sub judice is one where Roberts as co-venturer withdrew from the venture and in concert with a third party, pursued the very object of the venture.Plaintiffs maintain that it was this conduct by Roberts that prevented them from purchasing the GAC assets.In support of these contentions, plaintiffs allege that: Roberts negotiated directly with Goldhush "without keeping Craven and Oliver advised of what was going on"; Goldhush has made Roberts a vice president in the new corporation formed to acquire the GAC assets; Goldhush has reimbursed Roberts for all the expenses Roberts had incurred while attempting to negotiate for the purchase of the assets; and Roberts has received from Goldhush an option to purchase fifty percent of the GAC assets for fifty percent of Goldhush's investment therein.While there exist factual disputes with respect to most of the above allegations, it is...