Roach v. City of Lenoir, 7925DC436
| Decision Date | 15 January 1980 |
| Docket Number | No. 7925DC436,7925DC436 |
| Citation | 44 N.C.App. 608,261 S.E.2d 299 |
| Parties | Robert B. ROACH and wife, Mildred Louise Roach v. CITY OF LENOIR. |
| Court | North Carolina Court of Appeals |
Mitchell, Teele, Blackwell & Mitchell by Marcus W. H. Mitchell, Jr., Valdese, for plaintiff.
Carpenter & Bost by J. Bradley Wilson, Lenoir, for defendant.
Defendant moved to dismiss plaintiffs' action under G.S. 1A-1, Rule 12(b)(6). The trial court entered its order granting defendant's motion based upon " . . . the pleadings, citations of law, arguments of counsel and other evidence . . ." Because matters outside the pleadings were considered by the court in reaching its decision, the motion should be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in G.S. 1A-1, Rule 56. Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).
Having converted defendant's Rule 12(b)(6) motion into a Rule 56 motion for summary judgment, the question on appeal is whether there is a genuine issue as to any material fact. Fowler v. Williamson, 39 N.C.App. 715, 251 S.E.2d 889 (1979). The trial court in its order refers to "other evidence" outside of the allegations in the complaint which it considered in determining that there was no genuine issue of material fact and that as a matter of law:
(3) The Defendant City of Lenoir, had not waived said governmental immunity pursuant to N.C.G.S. 160A-485.
The record on appeal, however, does not contain any of the evidence relied upon by the trial court in support of its conclusion. The record on appeal contains only the bare complaint and no other pleading, deposition, affidavit or testimony. Furthermore, the complaint makes no mention of whether governmental immunity exists or is waived.
We do not intimate that in the form the controversy took in the District Court that the court lacked justification for its conclusion. Nevertheless, because of the inadequacy of the record to decide the factual and legal issues involved in governmental immunity, this Court is unable to determine whether there is any genuine issue of material fact and whether summary judgment was properly granted on the evidence before the trial court. See Kennedy v. Silas Mason Co., 334 U.S. 249, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948).
Had it been evident from the record that there was no waiver of governmental immunity by defendant, then it is clear plaintiff could not prevail on his claim for the following reasons.
The establishment and construction of a sewer system by a municipality are governmental functions entitling it to immunity from negligence. Metz v. Asheville, 150 N.C. 748, 64 S.E. 881 (1909). Plaintiffs concede in their brief that " . . . the...
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Williams v. Devere Constr. Co. Inc., COA10–900.
...to immunity from negligence claims. E.g., Metz v. City of Asheville, 150 N.C. 748, 64 S.E. 881 (1909); Roach v. City of Lenoir, 44 N.C.App. 608, 610, 261 S.E.2d 299, 300–01 (1980); McCombs v. City of Asheboro, 6 N.C.App. 234, 240, 170 S.E.2d 169, 173 (1969). In more recent cases before this......
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Bostic Packaging, Inc. v. City of Monroe
...whether the operation and maintenance of a sewer system is a governmental or proprietary function. In Roach v. City of Lenoir, 44 N.C.App. 608, 261 S.E.2d 299 (1980), residents of Lenoir brought suit against the city seeking to recover for property damage allegedly caused by the city's negl......
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Ronald G. Hinson Elec., Inc. v. Union County Bd. of Educ.
...for summary judgment and disposed of in the manner and on the conditions stated in G.S. 1A-1, Rule 56." Roach v. City of Lenoir, 44 N.C.App. 608, 609, 261 S.E.2d 299, 300 (1980). When ruling on a motion for summary judgment, the evidence must be considered in the light most favorable to the......
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Baugh v. Woodard, 8110SC558
...testimony, and, hence, its ruling must be reviewed as if it were a ruling on a motion for summary judgment. See Roach v. City of Lenoir, 44 N.C.App. 608, 261 S.E.2d 299 (1980). "Summary judgment may be granted ... where only a question of law ... is in controversy...." Calhoun v. Calhoun, 1......