Collier Ex Rel. Panilla Corp. v. CollierCollier Ex Rel. Panilla Corp. v. Collier
Plaintiffs appeal order granting summary judgment in favor of defendants. For the following reasons, we affirm.
I. Background
Plaintiffs John S. Collier and Bryan Collier alleged in their 22 January 2008 verified complaint that they are shareholders in the Panilla Corporation (“Panilla”) but have lost their Certificаtes of Shares (“share certificates”). Plaintiffs further alleged that defendant Judith Collier wrongfully sold real property belonging to Panillа and kept the proceeds for her own personal use. Plaintiffs requested that Panilla be required to bring a claim against Judith Collier to recover the sale proceeds and that their share certificates be reissued to them. On or about 26 March 2008, defendants Judith Collier and Panilla answered plaintiffs’ complaint and filed a motion to dismiss. On or about 12 September 2008, defendants filed a motiоn for summary judgment. In its 9 December 2008 order the trial court granted summary judgment in favor of defendants. Plaintiffs appeal.
II. Summary Judgment
A. Standard of Review
Summary judgment should be allowed when
the pleadings, deрositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any matеrial fact and that any party is entitled to a judgment as a matter of law. A trial court’s grant of summary judgment receives de novo review on aрpeal, and evidence is viewed in the light most favorable to the non-moving party.
Fairway Outdoor Adver. v. Edwards,
-N.C. App. -, -,
[s]ummary judgment should be entered only where there is no genuine issue as to any material fact. If findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact. Although findings of fact are not necessary on a motion for summary judgment, it is *162 helpful to the parties and the courts for thе trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment. The “Findings of Faсt” entered by the trial judge, insofar as they may resolve issues as to a material fact, have no effect on this appeаl and are irrelevant to our decision.
Ins. Agency v. Leasing Corp.,
B. Genuine Issues of Material Fact
Plaintiffs first contend that the trial court erred in concluding that there was no genuine issue of material fact. Plaintiffs argue thеre is a genuine issue of material fact as to whether they were shareholders. “A genuine issue is one which can be maintained by substаntial evidence.”
Board of Educ. of Hickory v. Seagle,
Shares may or may not be represented by certificates. See N.C. Gen. Stat. § 55-6-25(a) (2007). Plaintiffs did not allege that they owned shares without certificates; rather, plaintiffs allege that they owned shares which had certificates, but the certificates were lost. If a share is represented by a certificate,
[a]t minimum each share certificate must state on its face:
(1) The name of the issuing corporation and that it is organized under the law of North Carolina;
(2) The name of the person to whom issued; and
(3) The number and class of shares and the designatiоn of the series, if any, the certificate represents.
N.C. Gen. Stat. § 55-6-25(b) (2007). The share certificate must also “be signed (either manually or in fаcsimile) by two officers designated in the bylaws or by the board of directors[.]” N.C. Gen. Stat. § 55-6-25(d) (2007). Thus, plaintiffs can only prevail by proving that share certificates were actually issued to them in compliance with N.C. Gen. Stat. *163 § 55-6-25. Plaintiffs’ only forecast of evidence that share сertificates were issued is alleged in their complaint, their answers to defendants’ requests for admissions, and Bryan Collier’s affidavit; however, both the complaint and answers to defendants’ requests for admissions simply repeat the same allegations as Bryan Colliеr’s affidavit and assert no additional evidence that share certificates were issued to the plaintiffs.
We thus turn to Bryan Collier’s affidаvit which averred that he had seen share certificates issued in the names of himself, his brother John S. Collier, his half-sister, Pamela Marie Cоllier, his father, and his defendant stepmother. However, Bryan Collier’s affidavit fails to establish a genuine issue of material fact as it dоes not “maintain[] by substantial evidence” the information needed to prove that plaintiffs were shareholders.
Board of Educ. of Hickory
at 569,
C. Entitled to Judgment as a Matter of Law
Plaintiffs next contend that “the Defеndants were not entitled to judgment as a matter of law[.]” Plaintiffs rely solely on their argument *164 that Bryan Collier’s affidavit created a genuinе issue of material fact. As we have already established plaintiffs failed to establish a genuine issue of material fact because plaintiffs failed to bring forth evidence as required by N.C. Gen. Stat. § 55-6-25 to demonstrate that share certificates were actuаlly issued in compliance with the law of North Carolina, defendants were entitled to judgment as a matter of law, as without evidence of share certificates issued in compliance with N.C. Gen. Stat. § 55-6-25 plaintiffs cannot prevail at trial. We reinterate that had plaintiffs alleged they were issued stock without certificates an entirely different analysis would have taken place pursuant to N.C. Gen. Stat. §. 55-6-26; however, because plaintiffs alleged that they were issued certificates, they must show compliance with N.C. Gen. Stat. § 55-6-25. This argument is overruled.
III. Conclusion
We conclude that the trial court properly granted summary judgment in favor of defendants.
AFFIRMED.