Brooks v. Mount Airy Rainbow Farms Center, Inc., 48 N.C. App. 726

48 N.C. App. 726 | N.C. Ct. App. | 1980

HEDRICK, Judge.

The question presented on this appeal is whether the court erred in entering summary judgment for the plaintiff. A summary judgment must be granted, upon motion, “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.” G.S. § 1A-1, Rule 56(c). The party moving for summary judgment has the burden of establishing the lack of any triable issue of fact; his pleadings and papers must be carefully scrutinized and all inferences are to be resolved against him. Kidd v. Early, 289 N.C. 343, 222 S.E. 2d 392 (1976). See also Baumann v. Smith, 298 N.C. 778, 260 S.E. 2d 626 (1979).

Where, as here, the party with the burden of proof moves for summary judgment, a greater burden must be met. Summary judgment may be granted in favor of a party with the burden of proof, on the basis of his own affidavits (1) when there are only latent doubts as to the affiant’s credibility; (2) where the opposing party has failed to introduce any materials in his favor, failed to point to specific areas of impeachment and contradiction, and failed to use G.S. § 1A-1, Rule 56(f); and (3) when summary judgment is otherwise appropriate. Kidd v. Early, supra; see also Stroup Sheet Metal v. Heritage, Inc., 43 N.C. App. 27, 258 S.E. 2d 77 (1979).

In the present case, plaintiff alleged in his complaint that defendant was indebted to it in the amount of $1,553.29 on an account for seed sold to defendant. Plaintiff attached to his complaint an exhibit of the account, indicating that the defendant owed a balance of $1,553.29. Defendant filed answer, and subsequent papers, denying that it owed plaintiff any amount because its account had been paid in full. Plaintiff supported his motion for summary judgment with an affidavit of Donald Brooks which merely reiterated the allegations of the complaint. He also filed in support of his motion an exhibit indicating that the balance due on the account was $1,341.92. In response to that motion, defendant filed an affidavit reiterating the denials in his answer and other papers and alleging that he “owes plaintiff nothing, that he paid his account in full, and that there are no sums due and owing to the plaintiff by the defendant.”

We think that the record here demonstrates that there are genuine issues of material fact, and that plaintiff failed to carry his burden as required by Kidd v. Early, supra. First, it cannot be said that there are only latent doubts as to the credibility of the plaintiff, Donald Brooks. Glaring inconsistencies as to dates of payment, dates of service charge assessments, and even the current outstanding balance, exist between the exhibit he attached to his complaint and the exhibit he included with his affidavit supporting summary judgment. This obviously suggests that even plaintiff is uncertain as to the amount of the debt, and thus his statements concerning the debt are less credible. Second, defendant did introduce materials in his favor. His pleadings and papers repeatedly claimed that all debts had been paid, and he stated in his motion to dismiss that any balance remaining in the account was due solely to plaintiffs failure to credit the account properly. Also, in his affidavit against summary judgment, defendant pointed to the previously mentioned inconsistencies between plaintiffs exhibits. Finally, the central theme in plaintiffs allegations is the existence of a debt, and the fact that defendant took numerous opportunities during the proceedings to deny the existence of any debt, clearly indicates to us that a material fact — the debt itself — was indeed in dispute. Since summary judgment must be denied the party with the burden of proof if his opponent submits affidavits and other supporting materials which cast doubt upon the existence of a material fact, or if such doubts are raised by the movant’s own materials, Kidd v. Early, supra, we hold summary judgment for plaintiff was inappropriate.

Reversed and remanded.

Chief Judge Morris and Judge Webb concur.