Stanley v. Walker, 8118SC418

• Decision Date: 05 January 1982
• Docket Number: No. 8118SC418,8118SC418
• Parties: Donald L. STANLEY and wife, Kathleen S. Stanley v. Leneir P. WALKER and wife, Carolyn W. Walker.
• Court: North Carolina Court of Appeals

Page 297

285 S.E.2d 297

55 N.C.App. 377

Donald L. STANLEY and wife, Kathleen S. Stanley v. Leneir P. WALKER and wife, Carolyn W. Walker.

No. 8118SC418.

Court of Appeals of North Carolina.

Jan. 5, 1982.

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 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 that they have a meritorious defense and will raise one issue of material fact is not sufficient to withstand a motion for summary judgment. Defendants fail to support their contentions by the factual showing required to oppose plaintiffs' affidavit under Rule 56. Moreover, defendants' affidavit falls short of the Rule 56(e) requirement in that it fails to verify these allegations, but merely states they are "aware" of them.

Defendants strongly urge us to adopt the reasoning in Kidd v. Earley, supra, 289 N.C. at 367, 222 S.E.2d at 408, which considered the question of "whether a party with the burden of proving a material fact is entitled to summary judgment when (1) he relies upon his own testimony, which is not inherently incredible and is neither self-contradictory nor susceptible to conflicting inferences, to establish that fact; and (2) the opposing party does not support the general denial of that fact in his pleadings by affidavits under Rule 56(e) or (f)." In Kidd the Court established the following...