Van Poole v. Messer, 7319SC449

• Decision Date: 25 July 1973
• Docket Number: No. 7319SC449,7319SC449
• Court: North Carolina Court of Appeals
• Parties: Edwin L. VAN POOLE et al. v. Violet D. MESSER and Ruth E. Dull.

Page 106

198 S.E.2d 106

19 N.C.App. 70

Edwin L. VAN POOLE et al. v. Violet D. MESSER and Ruth E. Dull.

No. 7319SC449.

Court of Appeals of North Carolina.

July 25, 1973.

Rutledge & Friday, by Clinton S. Forbis, Jr., Kannapolis, for plaintiff appellees.

Grant & Grant, by Adam C. Grant, Jr., Concord, for defendant appellants.

MORRIS, Judge.

Summary judgment is proper only where there is no genuine issue of material fact, and the moving party is entitled to a judgment as a matter of law. Kiser v. Snyder, 17 N.C.App. 445, 194 S.E.2d 638 (1973), cert. denied, 283 N.C. 257, 195 S.E.2d 689. The party moving for summary judgment has the burden of establishing the lack of a genuine issue of material fact, and in that regard, the papers of the opposing party are indulgently regarded. Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972).

We are of the opinion that the trial judge committed error in entering summary judgment in favor of the plaintiffs in this case. The defendants contend that there is a material issue of fact as to whether a modern 'mobile home' is a 'trailer' within the meaning of the restrictive covenant placed on lot 39 of East Jackson Park Subdivision in 1955. It seems to us, however, that that issue is more properly one of interpretation of the restrictive covenant, and within the province of the trial judge to decide as a matter of law. Judge Seay concluded as a matter of law that a 'mobile home' is a 'trailer' within the intendment of the restrictive covenant. With this conclusion we take no issue. That the term 'trailer' includes a 'mobile home' within its meaning is the accepted rule in every authority we have found dealing with that issue. See Timmerman v. Gabriel, 155 Mont. 294, 470 P.2d 528 (1970); Harriman v. Kabinoff, 40 Misc.2d 387, 243 N.Y.S.2d 210 (1963). In Annot. 96 A.L.R.2d 232 (1964), at page 234, it is stated that '(t)he term 'trailer' is understood in its usual meaning regardless of whether it is referred to or described as house trailer, mobile home, trailer coach, or some such term.'

Although it appears that the case of Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971), would preclude the trial judge from entering summary judgment in favor of the party with the burden of proof when his right to recover depends upon the credibility of his evidence, in the case before us, the fact that the defendants had placed a mobile home upon lot 39 of the East Jackson Subdivision was admitted in the pleadings and interrogatories of the defendants, and the credibility of the plaintiffs' assertions is, therefore, not a 'genuine issue of fact'. Chisholm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961); Wyche v. Alexander, 15 N.C.App. 130, 189 S.E.2d 608 (1972), cert. denied, 281 N.C. 764, 191 S.E.2d 361. Summary judgment would not, therefore, be precluded by the issue of whether a 'mobile home' is a 'trailer' within the meaning of the restrictive covenant placed on lot 39.

However, the defendants contend, and we agree, that a material issue...