Singleton v. Stewart, No. 86

Citation186 S.E.2d 400,280 N.C. 460
Decision Date09 February 1972
Docket NumberNo. 86
PartiesBroadus E. SINGLETON v. Jack STEWART, Chairman, et al.
CourtUnited States State Supreme Court of North Carolina

Cecil C. Jackson, Jr., Asheville, for plaintiff appellant.

William C. Moore; Williams, Morris & Golding, Asheville, for defendants appellees.

BRANCH, Justice.

Rule 56 of Ch. 1A--1 of the General Statutes in part provides:

(b) For defending party.--A party against whom a claim, counterclaim, or crossclaim is asserted or a declaratory judgment is sought, may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

(c) Motion and proceedings thereon.--The motion shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. . . .

(e) Form of affidavits; further testimony; defense required.--Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Federal Rule 56 is substantially the same as our Rule 56, and we therefore look to the Federal decisions for guidance in applying our rule.

The broad statutory limitation that the motion for summary judgment may be made 'at any time' allows the motion to be made after responsive pleadings have been filed or Before filing of responsive pleadings. Chan Wing Cheung v. Hamilton (1st Cir., 1962), 298 F.2d 459; Hartmann v. Time, Inc., (3rd Cir., 1947), 166 F.2d 127; United States v. William S. Gray & Co., (S.D.N.Y., 1945), 59 F.Supp. 665; Lindsey v. Leavy (9th Cir., 1945), 149 F.2d 899. When the motion comes on for hearing, the court may consider pleadings, affidavits meeting the requirements of Rule 56(e), depositions, answers to interrogatories, admissions, oral testimony, and documentary materials; and the court may also consider facts which are subject to judicial notice and such presumptions as would be available upon trial. Rule 56; Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823; 6 Moore, Federal Practice § 56.11(10), at p. 2209 (2d ed. 1971); Jameson v. Jameson (1949), 85 U.S.App.D.C. 176, 176 F.2d 58. The use of these materials upon the hearing of the motion for summary judgment makes it clear that the real purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact. Kessing v. National Mortgage Corp., supra; William J. Kelly Co. v. Reconstruction Finance Corp. (1st Cir., 1949), 172 F.2d 865; Securities and Exchange Commission v. Payne (S.D.N.Y., 1940), 35 F.Supp. 873; United States v. 31 Photographs (S.D.N.Y., 1957), 156 F.Supp. 350; Cunningham v. Securities Investment Co. of St. Louis (5th Cir., 1960), 278 F.2d 600. It should be emphasized that in ruling on a motion for summary judgment the court does not resolve issues of fact and must deny the motion if there is any issue of genuine material fact. Kessing v. National Mortgage Corp., supra; United States v. Kansas Gas & Electric Co., (10th Cir., 1961), 287 F.2d 601; H. K. Ferguson Co. v. Nickel Processing Corp. of New York (S.D.N.Y., 1963), 33 F.R.D. 268; Hirsch v. Archer-Daniels-Midland Co. (2d Cir., 1958), 258 F.2d 44. The motion may only be granted where there is no such issue and the moving party is entitled to judgment as a matter of law. 6 Moore, Federal Practice, § 56.15 at p. 2281, 2282 (2d ed. 1971); Chesapeake & Ohio Ry. Co. v. International Harvester Co. (7th Cir., 1969), 272 F.2d 139; Riedel v. Atlas Van Lines, Inc., (8th Cir., 1959), 272 F.2d 901; Gold Fuel Service, Inc. v. Esso Standard Oil Co., (D.N.J., 1961), 195 F.Supp. 85.

'The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.' 6 Moore, Federal Practice, § 56.15(8), at p. 2439 (2d ed. 1971). See also Kessing v. National Mortgage Corp., supra; Gordon, 'The New Summary Judgment Rule in North Carolina,' 5 Wake Forest Intramural Law Review 94.

Plaintiff's case on appeal presents 34 assignments of error which fail to 'pinpoint' the question for decision. Rule 19(3) of the Rules of Practice of this Court require that the appellant group his exceptions and state clearly and briefly his individual assignments of error. Gilbert v. Moore, 268 N.C. 679, 151 S.E.2d 577; Long v. Honeycutt, 268 N.C. 33, 149 S.E.2d 579. Appellant neglected to do this. Therefore, in order to apply the above-stated and other pertinent principles of law to the facts of this case, we have categorically grouped plaintiff's allegations and evidence and defendants' evidence for purpose of considering the sole question presented by this appeal, i.e., did the trial judge correctly allow defendants' motion for summary judgment?

Plaintiff contends that defendants' attempted purchase of the property described in the options was arbitrary, capricious and in abuse of their discretion because of the location of the property. In support of this contention he alleges that more suitable land could be obtained for less consideration; that the land is not accessible to public transportation facilities, public recreation areas, commercial areas, and schools; that defendants misrepresented the location of schools to the Department of Housing and Urban Development, and generally that the land is located in an otherwise undesirable commercial and industrial section of the city.

Plaintiff offered no evidence to support these allegations and this general contention.

A housing authority is by statute given wide discretionary power in the selection of a site for a low-rent housing project, and the exercise of this discretionary power may not ordinarily become an issuable question, determinable by the court, except upon allegations of arbitrary and capricious conduct amounting to an abuse of discretion. Housing Authority of City of Wilson v. Wooten, 257 N.C. 358, 126 S.E.2d 101; Philbrook v. Chapel Hill Housing Authority, 269 N.C. 598, 153 S.E.2d 153.

Defendants offered evidence by affidavit, in proper form, and by exhibits which tended to show that the site plan had been submitted to and approved by the Asheville Planning and Zoning Commission; that the City Council of Asheville, after holding a duly advertised public hearing, accepted and approved the site plan; that the site plan was submitted to and approved by the Department of Housing and Urban Development.

Defendants offered an affidavit based on the personal knowledge of the affiant and other exhibits, all of which tended to refute plaintiff's allegations that defendants acted capriciously, arbitrarily and in abuse of their discretion in selecting the location for the low-rent housing project. Plaintiff offered no evidentiary response which would raise an issue for trial.

A number of plaintiff's allegations in the Amended Complaint are directed to the contention that defendants arbitrarily and capriciously abused their discretion by contracting to pay an amount in excess of the appraised value of the property. A typical allegation of this contention is as follows:

(14) That the defendants as required by law could not pay over and above the appraisal price for said real estate and knew or should have known the same because of the receipt of an appraisal report from Allen Butterworth dated November 17, 1969; and although the defendants were in receipt of said appraisal report entered into a contract accepted December 12, 1969, by their executive director agreeing to pay an amount in excess of the appraisal price; that at the time the defendants agreed to pay an unlawful sum in excess of the appraisal price of $35,000.00, the defendants were in receipt and had knowledge of an estimate as follows: That it would cost $380.00 to clear the land for the said project; a cost of $4,740.00 for stripping the topsoil; a cost of $37,200.00 for grading the material left on the site; and the sum of $37,500.00 for the cost of filling the rough grade from materials off the site location; and that the cost for providing sanitary sewer would require the sum of $23,715.00; and the cost of $42,618.00 for providing storm sewers; and that the total cost...

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