The sole question presented by this appeal is whether the trial court erred in granting defendant’s motion for summary judgment. Summary judgment is properly granted only “if the pleadings, depositions, answers to interrogatories, and admissiоns 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);
Caldwell v. Deese,
We hold that defеndant-appellants Charles P. Fletcher and Juanita U. Fletcher satisfied their burden as movants for summary judgment when they offered into evidence a copy of the promissory note at issue, showing that the note had not been indorsed and transferred to plaintiff.
G.S. 25-3-301 provides that the holder of a negotiable instrument may enforcе payment in his own name. To bring suit on the instrument in his own name, the plaintiff must first establish that he is in fact a holder. The holder оf an instrument is defined in G.S. 25-1-201(20) to be one who is in possession of an instrument “drawn, issued, or indorsed to him or to his order or to bearer or in blank.” Where, as in this case, a negotiable instrument is made payable to order, one becomes a holder of the instrument when it is properly indorsed and delivered to him.
First Citizens Bank & Trust Co. v. Raynor,
Defendant-appellants’ evidence at the summary judgment hearing established that the $375,000.00 note had never been made payable to plaintiff or to bearer, nor had it ever been indorsed to plaintiff. The last indorsement was by Southеrn Mortgage Company to Econo-Travel Corporation. The record *204 shows that Econo-Travel Corporation and plaintiff Econo-Travel Motor Hotel Corporation are two separatе and distinct corporate entities, therefore indorsement to Econo-Travel Corporation did nоt constitute indorsement to plaintiff. By proving the absence of indorsement to plaintiff, defendants established that plaintiff was not the owner or holder of the note, and thereby negated an essential element of plaintiffs cause of action, meeting their burden as movants for summary judgment and showing their entitlement to judgment as a matter of law.
Once a party satisfies his burden in moving for summary judgment, the party who opposes the motion must еither assume the burden of showing that a genuine issue of material fact does exist or provide an excuse for not doing so.
Zimmerman v. Hogg & Allen, supra.
The opposing party must come forward with facts, not mere allegations, which contrоvert the facts set forth in the moving party’s case. The opposing party may not rest solely upon the аllegations or denials in his pleadings. G.S. 1A-1, Rule 56(e);
Moore v. Fieldcrest Mills, Inc., supra, Conner Co. v. Spanish Inns,
Plaintiff in this casе alleged in its complaint that it became the owner and holder of the note sued upon by merger with indorsee Econo-Travel Corporation. G.S. 55-110(b) provides that in the event of a merger between corpоrations, the surviving corporation succeeds by operation of law to all of the rights, privileges, immunities, franchises and other property of the constituent corporations, without the necessity of a deеd, bill of sale, or other form of assignment.
Good Will Distributors (Northern), Inc. v. Shaw,
However, plaintiff introduced no evidence to support its allegation of the existence of a merger, choosing instead to rest *205 on its pleadings, which merely contended that a merger had taken place. Since defendant-appellants had met their burden under Rule 56 as movants for summаry judgment, it was incumbent upon plaintiff to come forth with evidence to controvert defendant’s case, оr otherwise suffer entry of summary judgment against it. It would have been a simple matter for plaintiff to present evidеnce of a merger in a form permitted under Rule 56(c), if a merger had in fact occurred. By resting on its pleаdings, plaintiff failed to establish a genuine issue as to whether it was the owner and holder of the note, therefore defendant-appellants were entitled to entry of summary judgment in their favor as a matter of law, and the trial court was correct in so ordering.
Accordingly, the decision of the Court of Appeals is reversed and the judgment of Judge Walker granting summary judgment for defendant-appellants is reinstated.
Reversed.