Stanley v. Walker, No. 8118SC418
| Docket Nº | No. 8118SC418 |
| Citation | 285 S.E.2d 297, 55 N.C.App. 377 |
| Case Date | January 05, 1982 |
| Court | Court of Appeal of North Carolina (US) |
Page 297
v.
Leneir P. WALKER and wife, Carolyn W. Walker.
J. Bruce Morton, Greensboro, for plaintiffs-appellees.
Hollowell, Silverstein & Brady by Robert A. Brady, Everett E. Dodd, Jr. and William P. Harper, Jr., Raleigh, for defendants-appellants.
HARRY C. MARTIN, Judge.
We are afforded numerous cases interpreting and applying Rule 56 of the North Carolina Rules of Civil Procedure, which clearly establish that on a motion for summary judgment, the question before the Court is whether the pleadings, discovery documents, and affidavits support a finding that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See, e.g., Hotel Corp. v. Taylor and Fletcher v. Foremans, Inc., 301 N.C. 200, 271 S.E.2d 54 (1980); Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979); Nasco Equipment Co. v. Mason, 291 N.C. 145, 229 S.E.2d 278 (1976); Kidd v. Earley, 289 N.C. 343, 222 S.E.2d 392 (1976); Tucker v. Telephone Co., 50 N.C.App. 112, 272 S.E.2d 911 (1980). The burden is upon the movant to establish the absence of any issue of fact, and once satisfied, the opposing party must come forward with facts, rather than mere allegations, which controvert the moving party's case. Hotel Corp., supra; Moore, supra; Nasco, supra; Kidd, supra. To avoid the possibility of any party's manufacturing facts to meet a motion for summary judgment, Rule 56(e) requires that "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."
Turning now to the record before us, we find that in their complaint and supporting affidavit, plaintiffs have made out a [55 N.C.App. 379] prima facie case entitling them to judgment as a matter of law. Plaintiffs' forecast of the evidence includes possession of a validly executed note delivered to them, nonpayment of the November 1980 installment, and the exercise of their right to accelerate. Although defendants raise the affirmative defense of payment in their answer to plaintiffs' complaint, this answer is not verified. The mere allegation in their answer to the motion for summary judgment
Page 299
that they have a meritorious defense and...To continue reading
Request your trial
-
Hylton v. Koontz, COA99-1053.
...denied, 306 N.C. 556, 294 S.E.2d 223 (1982). Our courts have held affirmations based on "personal[] aware[ness]," Stanley v. Walker, 55 N.C.App. 377, 378-79, 285 S.E.2d 297, 298-99 (1982), "information and belief," Blackwell v. Massey, 69 N.C.App. 240, 244, 316 S.E.2d 350, 352 (1984); see a......
-
Hsi v. Diversified Fire, COA04-678.
...is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Stanley v. Walker, 55 N.C.App. 377, 378, 285 S.E.2d 297, 298 (1982). "The burden is upon the movant to establish the absence of any issue of fact, and once satisfied, the oppos......
-
Peele v. Provident Mut. Life Ins. Co., 8724SC949
...there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Stanley v. Walker, 55 N.C. App. 377, 285 S.E.2d 297 (1982). The moving party has the burden of establishing the absence of any triable issue of fact. Brenner v. Little Red Scho......
-
Jacobs v. Hill's Food Stores, Inc., 8713SC270
...and that the moving party is entitled to a judgment as a matter of law. N.C.Gen.Stat. sec. 1A-1, Rule 56(c) (1983); Stanley v. Walker, 55 N.C.App. 377, 285 S.E.2d 297 (1982). The moving party has the burden of establishing the absence of any triable issue of fact. Brenner v. Little Red Scho......
-
Hylton v. Koontz, COA99-1053.
...denied, 306 N.C. 556, 294 S.E.2d 223 (1982). Our courts have held affirmations based on "personal[] aware[ness]," Stanley v. Walker, 55 N.C.App. 377, 378-79, 285 S.E.2d 297, 298-99 (1982), "information and belief," Blackwell v. Massey, 69 N.C.App. 240, 244, 316 S.E.2d 350, 352 (1984); see a......
-
Hsi v. Diversified Fire, COA04-678.
...is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Stanley v. Walker, 55 N.C.App. 377, 378, 285 S.E.2d 297, 298 (1982). "The burden is upon the movant to establish the absence of any issue of fact, and once satisfied, the oppos......
-
Peele v. Provident Mut. Life Ins. Co., 8724SC949
...there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Stanley v. Walker, 55 N.C. App. 377, 285 S.E.2d 297 (1982). The moving party has the burden of establishing the absence of any triable issue of fact. Brenner v. Little Red Scho......
-
Jacobs v. Hill's Food Stores, Inc., 8713SC270
...and that the moving party is entitled to a judgment as a matter of law. N.C.Gen.Stat. sec. 1A-1, Rule 56(c) (1983); Stanley v. Walker, 55 N.C.App. 377, 285 S.E.2d 297 (1982). The moving party has the burden of establishing the absence of any triable issue of fact. Brenner v. Little Red Scho......