29 N.C. App. 149 | N.C. Ct. App. | 1976
Plaintiff contends in its only assignment of error that the court should not have granted summary judgment for-CBC. It argues that under G.S. 44A-18(2) it is entitled to a lien on any funds owed by CBC to CDA. CBC contends that plaintiff is not entitled to a lien on any funds CBC owes to CDA, because CBC does not owe any funds to CDA. This is established, CBC argues, by the affidavit of Bobby C. Jones, which states that when CBC terminated its contracts with CDA, “all monies to which Contract Design Associates were entitled had been paid.” Plaintiff responds that this statement is inadmissible in evidence, because it is an expression of opinion on a question of law; and this contention seems correct.
1 Stansbury, N. C. Evidence 2d, § 130, in pertinent part states:
“Thus a witness may state that he was in ‘possession’ of land or chattels, or that he ‘bought’ certain articles, or that a corporation ‘claimed no interest’ in a particular thing, or that it did not ‘owe’ a debt, if the words are employed in a popular sense to describe the facts rather than their legal consequences. But where the legal relations growing*152 out of the facts are a disputed issue in the case, and the witness’s language appears to describe the relations themselves, the same words may be objectionable.” (footnotes omitted)
The legal relations growing out of CBC’s contract with CDA are certainly a disputed issue in this case; indeed, they are probably the crucial issue on which the case turns. If CDA had been paid all monies to which it was entitled, there is no fund on which plaintiff may obtain a lien; but if CBC did owe money to CDA, then there is such a fund and plaintiff may be entitled to a lien. Since Jones’s statement was not admissible in evidence, it did not meet the requirements of NCRCP 56(e) and cannot be considered on a motion for summary judgment. CBC has therefore failed to carry its burden of proving that it is entitled to judgment in its favor, a burden which is imposed on every party moving for summary judgment, Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972) ; and its motion for summary judgment should have been denied.
Reversed.