Brevard v. Barkley

184 S.E.2d 370 (1971)

12 N.C. App. 665

Ural BREVARD v. J. D. BARKLEY.

No. 7129DC674.

Court of Appeals of North Carolina.

November 17, 1971.

*372 Paul K. Barnwell and Redden, Redden & Redden, by M. M. Redden, Hendersonville, for plaintiff appellant.

Van Winkle, Buck, Wall, Starnes & Hyde, by Emerson D. Wall, Asheville, for defendant appellee.

HEDRICK, Judge.

Summary judgment is appropriate in a case where "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); Pridgen v. Hughes, 9 N.C.App. 635, 177 S.E.2d 425 (1970); Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970); Haithcock v. Chimney Rock Co., 10 N.C.App. 696, 179 S.E.2d 865 (1971); Alltop v. J. C. Penney Co., 10 N.C.App. 692, 179 S.E.2d 885 (1971), cert. den. 279 N.C. 348, 182 S.E.2d 580; White v. Jordan, 12 N.C.App. 175, 182 S.E.2d 593 (1971).

In Robinson v. McMahan, 11 N.C.App. 275, 181 S.E.2d 147 (1971), Judge Parker wrote:

"When a motion for summary judgment is made and supported as provided in Rule 56, `an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.' (Emphasis added.) Rule 56(e). In the present case the appealing defendants did not respond to plaintiff's motion `by affidavits or as otherwise provided in this rule.' Nevertheless, the summary judgment against them was proper only `if appropriate' under all of the circumstances of this case."

The burden is upon the moving party to establish the lack of a triable issue of fact. If defendant moving for summary judgment successfully carries his burden of proof, the plaintiff may not rely upon the bare allegations of his complaint to establish triable issues of fact, but must, by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. Haithcock v. Chimney Rock Co., supra.

In the present case, defendant's affidavit in support of the motion for summary judgment merely reiterates the allegations in the defendant's answer and counterclaim. The plaintiff did not respond to the motion for summary judgment by affidavit or otherwise as provided by Rule 56; however, the plaintiff's verified complaint was on file and should have been considered by the court in determining whether the defendant had carried the burden of showing the lack of a genuine issue of material fact and whether the defendant was entitled to a judgment as a matter of law.

In our opinion the pleadings and affidavit show clearly that there are genuine issues of material fact and that the defendant *373 is not entitled to judgment as a matter of law on either plaintiff's claim or defendant's counterclaim.

The judgment appealed from is reversed.

Reversed.

MALLARD, C. J., and GRAHAM, J., concur.