72 N.C. App. 489 | N.C. Ct. App. | 1985
Defendant assigns error to the order granting plaintiffs motion for summary judgment. Summary judgment is proper under G.S. 1A-1, Rule 56(c) only when “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.” An issue is material if “the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action.” Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E. 2d 897, 901, reh. denied, 281 N.C. 516 (1972).
That summary judgment is inappropriate in the instant case is apparent upon examination of the record. The arguments advanced by plaintiff and defendant in their briefs contain no disagreement about the law governing defendant’s obligations under the guaranty agreement. The parties agree that defendant is obligated by the terms of that agreement for debts incurred by her husband in relation to Gateway Bank and that the merger of Gateway into Northwestern operated to transfer that obligation to plaintiff for debts existing at the time of merger. The parties also agree that defendant would not be liable under the terms of the guaranty agreement for debts incurred by her husband in relation to Northwestern Bank following the merger. The parties obviously do not agree, however, on the factual issues of whether Elwood Gladwell was indebted to Gateway Bank at the time of the merger, and whether the note executed by Mr. Gladwell on 8 March 1982 was a “renewal” of a prior debt to Gateway or, instead, evidence of a new and independent loan made by plaintiff to Mr. Gladwell. These disputed issues of fact are determinative
Reversed.
