Chapter 1A. Rules of Civil Procedure. (2024)

I.In General

Summary Judgment Defined. —

Summary judgment is a device whereby judgment is rendered if the pleadings, depositions, interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that a party is entitled to judgment as a matter of law. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Rose v. Guilford County, 60 N.C. App. 170, 298 S.E.2d 200, 1982 N.C. App. LEXIS 3277 (1982).

This rule and its federal counterpart are practically the same. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Reavis v. Campbell, 27 N.C. App. 231, 218 S.E.2d 873, 1975 N.C. App. LEXIS 1804 (1975); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978); Piedmont Consultants of Statesville, Inc. v. Baba, 48 N.C. App. 160, 268 S.E.2d 222, 1980 N.C. App. LEXIS 3212 (1980).

And Federal Decisions May Be Looked to for Guidance in Applying This Rule. —

FRCP, Rule 56 is substantially the same as this rule and the Supreme Court therefore looks to the federal decisions for guidance in applying this rule. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975).

Summary judgment is a new procedure in North Carolina. Motyka v. Nappier, 9 N.C. App. 579, 176 S.E.2d 858, 1970 N.C. App. LEXIS 1410 (1970); Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970).

Demurrer and Summary Judgment Compared. —

A demurrer was a proper method of testing the legal sufficiency of the complaint, but it was confined only to the complaint itself. A motion for summary judgment allows the court to consider matter outside of the complaint for the purpose of ascertaining whether a genuine issue of fact does exist, thus recognizing the fact that a genuine issue of fact may not exist even though one appears in the complaint. Motyka v. Nappier, 9 N.C. App. 579, 176 S.E.2d 858, 1970 N.C. App. LEXIS 1410 (1970).

Motion for Directed Verdict Similar. —

The motion for summary judgment and the motion for a directed verdict are functionally very similar. Williams v. Carolina Power & Light Co., 296 N.C. 400 , 250 S.E.2d 255, 1979 N.C. LEXIS 1144 (1979).

Functionally the motion for summary judgment and the motion for a directed verdict are closely akin to each other. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975).

For comparison of motion for directed verdict and motion for summary judgment, see Edwards v. Northwestern Bank, 53 N.C. App. 492, 281 S.E.2d 86, 1981 N.C. App. LEXIS 2615 (1981).

For comparison of motion for failure to state a claim under G.S. 1A-1 , Rule 12(b)(6) and motion for summary judgment, see Shoffner Indus., Inc. v. W.B. Lloyd Constr. Co., 42 N.C. App. 259, 257 S.E.2d 50, 1979 N.C. App. LEXIS 2838 , cert. denied, 298 N.C. 296 , 259 S.E.2d 301, 1979 N.C. LEXIS 1583 (1979).

Conversion of G.S. 1A-1 , Rule 10(c) Motion to Motion for Summary Judgment. —

Where affidavits considered by the trial court were not incorporated by reference into the pleadings pursuant to Rule 10(c), the motion to dismiss was converted into a motion for summary judgment. Richland Run Homeowners Ass'n v. CHC Durham Corp., 123 N.C. App. 345, 473 S.E.2d 649, 1996 N.C. App. LEXIS 726 (1996), rev'd, 346 N.C. 170 , 484 S.E.2d 527, 1997 N.C. LEXIS 216 (1997).

Conversion of G.S. 1A-1 , Rule 12(b)(6) and 12(c) Motions to Motions for Summary Judgment. —

Motions under G.S. 1A-1 , Rules 12(b)(6) and 12(c) can be treated as summary judgment motions, the difference being that under G.S. 1A-1 , Rules 12(b)(6) and 12(c) the motion is decided on the pleadings alone, while under this rule the court may receive and consider various kinds of evidence. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971).

A motion to dismiss for failure to state a claim under G.S. 1A-1 , Rule 12(b)(6) is converted to a motion under this rule for summary judgment when matters outside the pleadings are presented to and not excluded by the court. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979); Smith v. Independent Life Ins. Co., 43 N.C. App. 269, 258 S.E.2d 864, 1979 N.C. App. LEXIS 3068 (1979); Piedmont Consultants of Statesville, Inc. v. Baba, 48 N.C. App. 160, 268 S.E.2d 222, 1980 N.C. App. LEXIS 3212 (1980); Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Where extraneous matter is received and considered on a motion to dismiss under G.S. 1A-1 , Rule 12(b)(6), the motion should be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in this rule. Fowler v. Williamson, 39 N.C. App. 715, 251 S.E.2d 889, 1979 N.C. App. LEXIS 2578 (1979); Roach v. City of Lenoir, 44 N.C. App. 608, 261 S.E.2d 299, 1980 N.C. App. LEXIS 2491 (1980); Parslow v. Parslow, 47 N.C. App. 84, 266 S.E.2d 746, 1980 N.C. App. LEXIS 2978 (1980); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981).

Where the record contains affidavits and indicates that the trial judge, in addition to considering the pleadings and attached exhibits, also heard counsel for both parties and considered briefs submitted by both parties, the motion for judgment on the pleadings under G.S. 1A-1 , Rule 12(c) must be considered as though it was made under this rule. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

Where matters outside the pleadings are presented to and not excluded by the court on a motion to dismiss for failure to state a claim, the motion shall be treated as one for summary judgment under this rule. DeArmon v. B. Mears Corp., 312 N.C. 749 , 325 S.E.2d 223, 1985 N.C. LEXIS 1494 (1985); King v. Durham County Mental Health Developmental Disabilities & Substance Abuse Auth., 113 N.C. App. 341, 439 S.E.2d 771, 1994 N.C. App. LEXIS 19 (1994).

The denial of a motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) does not prevent the court from allowing a subsequent motion for summary judgment. Dull v. Mutual of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E.2d 752, 1987 N.C. App. LEXIS 2598 (1987); Burton v. NCNB Nat'l Bank, 85 N.C. App. 702, 355 S.E.2d 800, 1987 N.C. App. LEXIS 2647 (1987).

Where matters outside the pleadings are before the court, a motion to dismiss may be treated as a motion for summary judgment. Deans v. Layton, 89 N.C. App. 358, 366 S.E.2d 560, 1988 N.C. App. LEXIS 189 (1988).

When a trial court considers matters outside the pleadings, a motion under Rule 12 is automatically converted into a motion for summary judgment. North Carolina Steel, Inc. v. National Council on Comp. Ins., 123 N.C. App. 163, 472 S.E.2d 578, 1996 N.C. App. LEXIS 678 (1996), aff'd in part and rev'd in part, 347 N.C. 627 , 496 S.E.2d 369, 1998 N.C. LEXIS 112 (1998).

Where, in a claim brought by mobile home owners alleging unfair and deceptive trade practices by the manufacturers of the homes, the parties presented to the trial court deposition testimony and affidavits, none of which was excluded by the trial court, the trial court’s conversion of the manufacturers’ N.C. R. Civ. P. 12(b)(6) motion into a N.C. R. Civ. P. 56 motion was proper; although the owners argued that they were not given a reasonable opportunity to present all pertinent material, the owners did not request a continuance or additional time to produce evidence, but fully participated in the hearing, and thus their claim was meritless. Belcher v. Fleetwood Enters., 162 N.C. App. 80, 590 S.E.2d 15, 2004 N.C. App. LEXIS 9 (2004).

Where, in support of their motion claiming that a legal malpractice claim against them was time barred, lawyers submitted a complaint filed against the client in a separate case and the client’s answer to that complaint, which were not excluded by the trial court, the motion was treated as one for summary judgment. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915, 2004 N.C. App. LEXIS 56 (2004).

Trial court converted a G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion into a motion for summary judgment because the court considered matters outside of the pleadings in the form of exhibits, depositions, affidavits and discovery responses. Bailey v. Handee Hugo's, Inc., 173 N.C. App. 723, 620 S.E.2d 312, 2005 N.C. App. LEXIS 2302 (2005).

Because the trial court clearly considered matters outside the pleadings, the trial court properly treated defendants’ G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion to dismiss as a motion for summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56. Barbee v. Johnson, 190 N.C. App. 349, 660 S.E.2d 135, 2008 N.C. App. LEXIS 887 (2008).

Because the trial court considered matters outside the pleadings, including the separation agreement and/or defendant’s affidavit supporting his first dismissal motion, in which he asserted that plaintiff’s claims were waived by the 18 April 2013 separation agreement, defendant’s motion to dismiss for failure to state a claim was converted into one of summary judgment; additionally, her equitable distribution and spousal support claims had to be reviewed under the summary judgment standard as they were necessarily based on the terms of the separation agreement itself or defendant’s affidavit. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

Memoranda, Briefs and Oral Arguments Not Outside the Pleadings for Purposes of Converting Motion. —

Memoranda of points and authorities as well as briefs and oral arguments are not considered matters outside the pleading for purposes of converting a motion under G.S. 1A-1 , Rule 12 into a motion for summary judgment. Privette v. University of N.C. 96 N.C. App. 124, 385 S.E.2d 185, 1989 N.C. App. LEXIS 969 (1989).

Affidavit. —

Affidavit that stated that “to the best of (the affiant’s) knowledge,” the mortgagors were not in the Armed Forces and that the affiant was familiar with the records of petitioner in support of a foreclosure sale was properly considered under G.S. 1A-1 , N.C. R. Civ. P. 56(e) and 43(e) as the affiant put a self-imposed limitation to the affiant’s personal knowledge that based on the documents he had reviewed his affirmations were true. In re Yopp, 217 N.C. App. 488, 720 S.E.2d 769, 2011 N.C. App. LEXIS 2609 (2011).

Section (c) of this rule does not require that a party move for summary judgment in order to be entitled to it. McNair Constr. Co. v. Fogle Bros. Co., 64 N.C. App. 282, 307 S.E.2d 200, 1983 N.C. App. LEXIS 3264 (1983).

Motion Under G.S. 1A-1 , Rule 12(b)(6) Not Converted by Incorporation of Exhibit by Reference in Complaint. —

Where, in her complaint, plaintiff incorporated by reference a complaint in a federal court action and attached a copy of it, the complaint in the federal court action was not a matter outside the pleadings so as to convert her motion to dismiss under G.S. 1A-1 , Rule 12(b)(6) into a motion for summary judgment, since G.S. 1A-1 , Rule 10(c) provides that such an exhibit is a part of the pleading for all purposes. Stanback v. Stanback, 297 N.C. 181 , 254 S.E.2d 611, 1979 N.C. LEXIS 1249 (1979).

Treatment of Summary Judgment Motion as Though Made Under G.S. 1A-1 , Rule 12(c). —

Where the record on appeal contained no affidavits, answers to interrogatories, or anything other than the pleadings upon which to base decision, motion for summary judgment would be considered as though made under G.S. 1A-1 , Rule 12(c) for judgment on the pleadings, and not as a motion under this rule. Reichler v. Tillman, 21 N.C. App. 38, 203 S.E.2d 68, 1974 N.C. App. LEXIS 1703 (1974); Town of Bladenboro v. McKeithan, 44 N.C. App. 459, 261 S.E.2d 260, 1980 N.C. App. LEXIS 2477 (1980).

Notice Requirement. —

Where the trial court entered an order substituting estate administrator as defendant on the same day it granted summary judgment to plaintiffs, the administrator did not receive timely notice of the motion for summary judgment motion as provided for in G.S. 1A-1 , Rule 56(e), and the grant of summary judgment was error. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

In a wife’s appeal of the absolute divorce, she failed to show that she did not receive adequate and proper notice of the hearing on the husband’s motion for summary judgment since the husband’s notice of hearing was adequate and proper in light of G.S. 1A-1 , N.C. R. Civ. P. 56, as despite the fact that it failed to state the time of the hearing, it did state the date, location, and courtroom number and was served upon the wife at least 10 days prior to the hearing. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653, 2008 N.C. App. LEXIS 1479 (2008).

Trial court erred in entering summary judgment in favor of plaintiff on an action alleging that defendant was in default on two promissory notes where neither party filed a motion for summary judgment, the only notice was that plaintiff and defendant were participating in a hearing regarding a motion in limine, and thus, defendant did not have the requisite 10-day notice under G.S. 1A-1 , N.C. R. Civ. P. 56. Buckner v. TigerSwan, Inc., 244 N.C. App. 385, 781 S.E.2d 494, 2015 N.C. App. LEXIS 1039 (2015).

Plaintiff may not defeat a motion for summary judgment by taking a voluntary dismissal after a hearing on the summary judgment motion where plaintiff introduces evidence, and after the court signs the summary judgment, but before it is filed with the clerk. Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430, 1978 N.C. App. LEXIS 2247 (1978).

Where a party appears at a summary judgment hearing and produces evidence or is given an opportunity to produce evidence and fails to do so, and the question is submitted to the court for decision, he has “rested his case” within the meaning of G.S. 1A-1 , Rule 41(a)(1)(i). He cannot thereafter take a voluntary dismissal under G.S. 1A-1 , Rule 41(a)(1)(i). Maurice v. Hatterasman Motel Corp., 38 N.C. App. 588, 248 S.E.2d 430, 1978 N.C. App. LEXIS 2247 (1978); Wesley v. Bland, 92 N.C. App. 513, 374 S.E.2d 475, 1988 N.C. App. LEXIS 1062 (1988).

Validity of the judgment does not depend upon the form in which the determination is made, whether express or implied, but upon the correctness of the determination. Tripp v. Flaherty, 27 N.C. App. 180, 218 S.E.2d 709, 1975 N.C. App. LEXIS 1790 (1975).

There is no requirement that summary judgment, to be valid, must contain ritual statement that there is no genuine issue as to any material fact. Tripp v. Flaherty, 27 N.C. App. 180, 218 S.E.2d 709, 1975 N.C. App. LEXIS 1790 (1975).

When it is unclear from looking at a judgment whether a default judgment or a summary judgment was intended, the wording of the body of the judgment itself controls, not the heading. East Carolina Oil Transp., Inc. v. Petroleum Fuel & Term. Co., 82 N.C. App. 746, 348 S.E.2d 165, 1986 N.C. App. LEXIS 2630 (1986).

Matters determined by summary judgment, as by any other judgment, are res judicata in a subsequent action. T.A. Loving Co. v. Latham, 15 N.C. App. 441, 190 S.E.2d 248, 1972 N.C. App. LEXIS 1936 (1972).

But an order denying summary judgment is not res judicata, and a judge is clearly within his rights in vacating such denial. Where nothing pertinent to the motion has been filed subsequent to the previous order, it is not necessary to issue new notice. Miller v. Miller, 34 N.C. App. 209, 237 S.E.2d 552, 1977 N.C. App. LEXIS 1639 (1977).

Ripeness. —

Inmate’s case was ripe for summary judgment because whether the inmate had a legal right to have credits applied against his life sentence was a matter of law, not an issue of fact. Price v. Beck, 153 N.C. App. 763, 571 S.E.2d 247, 2002 N.C. App. LEXIS 1253 (2002).

Conversion of G.S. 1A-1 , Rule 12(B)(6) and 12(C) Motions to Motions for Summary Judgment. —

Where an employee referred in a complaint for a violation of the North Carolina Retaliatory Employment Discrimination Act, G.S. 95-240 et seq., to the administrative complaint and/or right-to-sue letter from the North Carolina Department of Labor, which were not attached to the complaint, and they formed the procedural basis for the complaint, the trial court did not convert the employer’s motion to dismiss under G.S. 1A-1 , Rule 12(b)(6), into one for summary judgment under this rule, by considering the unattached documents. Brackett v. SGL Carbon Corp., 158 N.C. App. 252, 580 S.E.2d 757, 2003 N.C. App. LEXIS 1041 (2003).

Summary Judgment Not Precluded by Earlier Denial of Motion Under G.S. 1A-1 , Rule 12(b)(6). —

Denial of a motion to dismiss for failure to state a claim upon which relief can be granted, which motion merely challenges the sufficiency of the complaint, does not prevent the court’s allowance of a subsequent motion for summary judgment based on affidavits outside the complaint. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971).

Denial of a motion to dismiss made under G.S. 1A-1 , Rule 12(b)(6) does not prevent the court, whether in the person of the same or a different superior court judge, from thereafter allowing a subsequent motion for summary judgment made and supported as provided in this rule. Barbour v. Little, 37 N.C. App. 686, 247 S.E.2d 252, 1978 N.C. App. LEXIS 2830 , cert. denied, 295 N.C. 733 , 248 S.E.2d 862, 1978 N.C. LEXIS 1129 (1978).

In a wrongful death action against a city and a railroad arising from a motorist’s death after being struck by a train at a railroad crossing, after a trial court partially denied the city’s motion to dismiss under Rule 12(b)(6) and Rule 12(c), it was not precluded from granting the city’s summary judgment motion. Wilkerson v. Norfolk S. Ry. Co., 151 N.C. App. 332, 566 S.E.2d 104, 2002 N.C. App. LEXIS 744 (2002).

Superior court judge’s summary judgment ruling was proper because another superior court judge first concluded, pursuant to a motion to dismiss, that the factual allegations in North Carolina counties’ complaints were legally sufficient so as to not preclude their claims for recovery of taxes from online travel companies. Thereafter, the judge concluded, on the summary judgment motion, that the counties failed to provide any authority that the companies had a legal duty to collect the taxes. Wake County v. Hotels.com, L.P., 235 N.C. App. 633, 762 S.E.2d 477, 2014 N.C. App. LEXIS 897 (2014).

However, a motion for summary judgment denied by one superior court judge may not be allowed by another on identical legal issues. But this does not apply to interlocutory orders given in the progress of the cause. American Travel Corp. v. Central Carolina Bank & Trust Co., 57 N.C. App. 437, 291 S.E.2d 892, 1982 N.C. App. LEXIS 2685 (1982).

A motion for summary judgment denied by one superior court judge may not be allowed by another superior court judge on identical legal issues. Furr v. Charmichael, 82 N.C. App. 634, 347 S.E.2d 481, 1986 N.C. App. LEXIS 2606 (1986).

Summary Judgment for Nonmovant. —

Although plaintiffs filed motion for summary judgment, trial court entered summary judgment for defendants. When appropriate, summary judgment may be rendered against the party moving for such judgment. Coulter v. City of Newton, 100 N.C. App. 523, 397 S.E.2d 244, 1990 N.C. App. LEXIS 1060 (1990).

Pleadings Deemed Amended. —

Where a motion for summary judgment is supported by matters outside the pleadings, the pleadings are deemed amended if in fact the issue not raised by the pleadings or by the motion for summary judgment is tried by the express or implied consent of both parties. County of Rutherford ex rel. Child Support Enforcement Agency ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 394 S.E.2d 263, 1990 N.C. App. LEXIS 818 (1990).

Because the plaintiffs’ summary judgment motion went only to liability, the trial court had the power to render summary judgment for the defendants with respect to liability notwithstanding the procedural defects in the defendants’ summary judgment motion. Messer v. Laurel Hill Assocs., 102 N.C. App. 307, 401 S.E.2d 843, 1991 N.C. App. LEXIS 290 (1991).

Continuance Properly Denied. —

Trial court properly declined to continue a summary judgment hearing in a wrongful death action where the mother of a deceased child failed to move to continue the hearing: the trial court did not abuse its discretion when it denied a motion to continue a hearing on a motion for summary judgment when the party failed to file and give notice of the motion to continue and submit an affidavit pursuant to subsection (f) of this rule. Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732, 2003 N.C. App. LEXIS 1047 (2003), aff'd, 358 N.C. 131 , 591 S.E.2d 521, 2004 N.C. LEXIS 11 (2004).

Failure to Seek Additional Discovery. —

Plaintiffs were not prevented from utilizing any necessary discovery procedures by the trial court’s granting of a continuance of only 45 days on a summary judgment hearing, rather than 120 days, as plaintiffs sought no additional discovery, with the exception of one occasion on which they served defendants with written discovery requests, and as plaintiffs filed their own motion for summary judgment prior to the hearing; moreover, a summary judgment hearing was not required to take place upon completion of all factual discovery, and any argument that an order setting a date for a summary judgment hearing violated G.S. 1A-1-26(d) was erroneous. Sapp v. Yadkin County, 209 N.C. App. 430, 704 S.E.2d 909, 2011 N.C. App. LEXIS 208 (2011).

Entry of Summary Judgment. —

The mere filing of an affirmative defense without more is not sufficient to establish the absence of a justiciable issue, nor is the grant of a G.S. 1A-1 , Rule 12(b)(6) motion, nor the entry of summary judgment. These events may only be evidence of the absence of a justiciable issue. However, action by the losing party which perpetuated litigation in the fact of events substantially establishing that the pleadings no longer presented a justiciable controversy may also serve as evidence for purposes of G.S. 6-21.5 . Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

North Carolina Disciplinary Hearing Commission was not required to state on the record the reasons for granting or denying a motion for summary judgment. N.C. State Bar v. Scott, 241 N.C. App. 477, 773 S.E.2d 520, 2015 N.C. App. LEXIS 514 (2015).

Distinction Between Motion to Dismiss and Summary Judgment. —

The distinction between a G.S. 1A-1 , Rule 12(b)(6) motion to dismiss and a motion for summary judgment is more than a mere technicality. When considering a G.S. 1A-1 , Rule 12(b)(6) motion to dismiss, the trial court need only look to the face of the complaint to determine whether it reveals an insurmountable bar to plaintiff’s recovery. By contrast, when considering a summary judgment motion, the trial court must look at more than the pleadings; it must also consider additional matters such as affidavits, depositions and other specified matter outside the pleadings. Locus v. Fayetteville State Univ., 102 N.C. App. 522, 402 S.E.2d 862, 1991 N.C. App. LEXIS 450 (1991).

Ordinarily, findings of fact and conclusions of law are not required in the determination of a motion for summary judgment, and if these are made, they are disregarded on appeal. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Effect of Denial of Motion on Subsequent Motions Based on Trial Evidence. —

Denial of a motion for summary judgment, based only upon a forecast of evidence, should not operate to bar the granting of a directed verdict or a judgment notwithstanding the verdict based on the evidence actually presented at trial. Whittaker Gen. Medical Corp. v. Daniel, 87 N.C. App. 659, 362 S.E.2d 302, 1987 N.C. App. LEXIS 3313 (1987), rev'd, 374 S.E.2d 268, 1988 N.C. LEXIS 691 (N.C. 1988), rev'd in part, 324 N.C. 523 , 379 S.E.2d 824, 1989 N.C. LEXIS 299 (1989).

Attorneys’ Fees. —

G.S. 6-21.5 provides in part that the entry of judgment pursuant to Rule 50 or this rule may be some evidence that an attorneys’ fee may be warranted. The statute’s reference to these rules, which are applicable only if evidence in addition to the pleadings is before the court, thus implies that when deciding whether to grant a motion under G.S. 6-21.5 the trial court may consider evidence developed after the pleadings have been filed. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254 , 400 S.E.2d 435, 1991 N.C. LEXIS 106 (1991).

Denial of Sanctions Upheld. —

Motion brought by plaintiffs who sought sanctions under G.S. 1A-1 , Rule 56(g) on the grounds that defendant filed an affidavit in support of summary judgment that was not based on his personal knowledge, because it used a phrase with which he was unacquainted, in bad faith, was not so unwarranted by existing case law as to merit sanctions under G.S. 1A-1 , Rule 11. Johnson v. Harris, 149 N.C. App. 928, 563 S.E.2d 224, 2002 N.C. App. LEXIS 383 (2002).

Interlocutory Appeals. —

Defendants were allowed to make an interlocutory appeal of plaintiff’s motion for partial summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56; although the appeal was interlocutory, to deny appellate review would have allowed the judgment to strip defendants of their property without any possible redress except another lawsuit, and therefore would have affected a substantial right pursuant to G.S. 1-277 . Estate of Graham v. Morrison, 156 N.C. App. 154, 576 S.E.2d 355, 2003 N.C. App. LEXIS 81 (2003).

Because a trial court’s order requiring landowners to remove substantial structures from their property affected their substantial rights, the partial summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) was immediately appealable. Keener v. Arnold, 161 N.C. App. 634, 589 S.E.2d 731, 2003 N.C. App. LEXIS 2278 (2003).

In a defamation action, the appeal of the candidate and campaign from the trial court’s denial of their G.S. 1A-1 , N.C. R. Civ. P. 12(b)(6) motion was interlocutory, and the denial did not challenge a substantial right that was to be lost absent immediate appellate review pursuant to G.S. 1-277(a) ; the instant case was akin to a previous case in which an appeal from a motion for judgment on pleadings pursuant to G.S. 1A-1 , N.C. R. Civ. P. 12(c) was dismissed, and the instant case was distinguishable from a previous case in which an appeal on a ruling on a motion for summary judgment pursuant to G.S. 1A-1, N.C. R. Civ. P. 56 was allowed, as a motion under G.S. 1A-1, N.C. R. Civ. P. 12(c) was more similar to a G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) motion. Grant v. Miller, 170 N.C. App. 184, 611 S.E.2d 477, 2005 N.C. App. LEXIS 902 (2005).

In a case involving specific performance, an appellate court considered an appeal from the granting of a motion for partial summary judgment because it was not interlocutory since it disposed of all of the claims brought before the trial court. Wolfe v. Villines, 169 N.C. App. 483, 610 S.E.2d 754, 2005 N.C. App. LEXIS 690 (2005).

Because the granting of summary judgment did not dispose of the case as to all parties, as the injured person entered into a stipulation of dismissal without prejudice as to the motel, and the granting summary judgment as to contributory negligence completely disposed of the case, the judgment was not interlocutory as it disposed of the cause leaving nothing to be judicially determined between the parties in the trial court. Duval v. OM Hospitality, LLC, 186 N.C. App. 390, 651 S.E.2d 261, 2007 N.C. App. LEXIS 2190 (2007).

II.Purpose of Summary Judgment

This rule is designed to permit penetration of an unfounded claim or defense in advance of trial and to allow summary disposition for either party when a fatal weakness in the claim or defense is exposed. Patrick v. Hurdle, 16 N.C. App. 28, 190 S.E.2d 871, 1972 N.C. App. LEXIS 1635 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 942 (1972); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Philbin Invs., Inc. v. Orb Enters., Ltd., 35 N.C. App. 622, 242 S.E.2d 176, 1978 N.C. App. LEXIS 3047 , cert. denied, 295 N.C. 90 , 244 S.E.2d 260, 1978 N.C. LEXIS 958 (1978); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Southeastern Asphalt & Concrete Co. v. American Defender Life Ins. Co., 69 N.C. App. 185, 316 S.E.2d 311, 1984 N.C. App. LEXIS 3394 (1984); Cannon v. Miller, 71 N.C. App. 460, 322 S.E.2d 780, 1984 N.C. App. LEXIS 3909 (1984), vacated, 313 N.C. 324 , 327 S.E.2d 888, 1985 N.C. LEXIS 1570 (1985); N.C. Coastal Motor Line v. Everette Truck Line, 77 N.C. App. 149, 334 S.E.2d 499, 1985 N.C. App. LEXIS 4028 (1985); Sink v. Andrews, 81 N.C. App. 594, 344 S.E.2d 831, 1986 N.C. App. LEXIS 2340 (1986); Palm Beach, Inc. v. Allen, 91 N.C. App. 115, 370 S.E.2d 440, 1988 N.C. App. LEXIS 716 (1988).

The purpose of this rule is to preserve the court from frivolous defenses, and to defeat attempts to use formal pleadings as means to delay the recovery of just demands. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Baum v. Golden, 83 N.C. App. 218, 349 S.E.2d 625, 1986 N.C. App. LEXIS 2692 (1986).

Summary judgment is designed to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Highlands Tp. Taxpayers Ass'n v. Highlands Tp. Taxpayers Ass'n, 62 N.C. App. 537, 303 S.E.2d 234, 1983 N.C. App. LEXIS 2913 (1983).

The goal of this procedural device is to allow penetration of an unfounded claim or defense before trial. Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983).

A motion for summary judgment is an attempt by a party to avoid the necessity of trial by exposing a fatal weakness in the claim or defense of his opponent. Normile v. Miller, 63 N.C. App. 689, 306 S.E.2d 147, 1983 N.C. App. LEXIS 3195 (1983), modified, 313 N.C. 98 , 326 S.E.2d 11, 1985 N.C. LEXIS 1521 (1985).

The goal of summary judgment procedures is to allow penetration of an unfounded claim or defense before trial. Thus, if there is any question as to the credibility of an affiant in a summary judgment motion or if there is a question which can be resolved only by the weight of the evidence, summary judgment should be denied. Broadway v. Blythe Indus., Inc., 313 N.C. 150 , 326 S.E.2d 266, 1985 N.C. LEXIS 1510 (1985).

The ultimate goal of the procedural device of summary judgment is to allow penetration of an unfounded claim or defense before trial. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985).

Summary judgment is designed to eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim of a party is exposed. Hall v. Post, 85 N.C. App. 610, 355 S.E.2d 819, 1987 N.C. App. LEXIS 2646 (1987), rev'd, 323 N.C. 259 , 372 S.E.2d 711, 1988 N.C. LEXIS 611 (1988).

And to Allow a Preview or Forecast of the Proof. —

The procedure for a summary judgment motion is designed to allow a “preview” or “forecast” of the proof of the parties in order to determine whether a jury trial is necessary. Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983).

Purpose of summary judgment is to provide an expeditious method for determining whether a material issue of fact actually exists. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970); Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971); Blackmon v. Valley Decorating Co., 11 N.C. App. 137, 180 S.E.2d 396, 1971 N.C. App. LEXIS 1466 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Emanuel v. Colonial Life & Accident Ins. Co., 35 N.C. App. 435, 242 S.E.2d 381, 1978 N.C. App. LEXIS 3005 (1978); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E.2d 584, 1980 N.C. App. LEXIS 3163 (1980); Southerland v. Kapp, 59 N.C. App. 94, 295 S.E.2d 602, 1982 N.C. App. LEXIS 2854 (1982).

The purpose of summary judgment is to go beyond or to pierce the pleadings and determine whether there is a genuine issue of material fact. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972).

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59, 1984 N.C. App. LEXIS 3477 (1984).

And, If Not, Whether Movant Is Entitled to Judgment. —

The purpose of the summary judgment rule is to provide an expeditious method of determining whether a genuine issue as to any material fact actually exists, and if not, whether the moving party is entitled to judgment as a matter of law. Schoolfield v. Collins, 12 N.C. App. 106, 182 S.E.2d 648, 1971 N.C. App. LEXIS 1294 (1971), rev'd, 281 N.C. 604 , 189 S.E.2d 208, 1972 N.C. LEXIS 1117 (1972); Gudger v. Transitional Furn., Inc., 30 N.C. App. 387, 226 S.E.2d 835, 1976 N.C. App. LEXIS 2262 (1976).

The purpose of the summary judgment procedure provided by this rule is to ferret out those cases in which there is no genuine issue as to any material fact and in which, upon such undisputed facts, a party is entitled to judgment as a matter of law. Haithco*ck v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Peterson v. Winn-Dixie of Raleigh, Inc., 14 N.C. App. 29, 187 S.E.2d 487, 1972 N.C. App. LEXIS 2029 (1972); Cameron-Brown Capital Corp. v. Spencer, 31 N.C. App. 499, 229 S.E.2d 711, 1976 N.C. App. LEXIS 2025 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1240 (1977).

And to Bring Litigation to a Prompt Disposition on the Merits. —

The purpose of summary judgment is to bring litigation to an early decision on the merits without the delay and expense of a trial where it can be readily demonstrated that no material facts are in issue. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Yount v. Lowe, 24 N.C. App. 48, 209 S.E.2d 867, 1974 N.C. App. LEXIS 1925 (1974), aff'd, 288 N.C. 90 , 215 S.E.2d 563, 1975 N.C. LEXIS 885 (1975); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374, 1980 N.C. App. LEXIS 3427 (1980); Texaco, Inc. v. Creel, 57 N.C. App. 611, 292 S.E.2d 130, 1982 N.C. App. LEXIS 2694 (1982), aff'd, 310 N.C. 695 , 314 S.E.2d 506, 1984 N.C. LEXIS 1698 (1984); Jones v. City of Burlington, 58 N.C. App. 193, 293 S.E.2d 252, 1982 N.C. App. LEXIS 2716 (1982); Southern Ry. v. ADM Milling Co., 58 N.C. App. 667, 294 S.E.2d 750, 1982 N.C. App. LEXIS 2828 (1982); Angola Farm Supply & Equip. Co. v. FMC Corp., 59 N.C. App. 272, 296 S.E.2d 503, 1982 N.C. App. LEXIS 3102 (1982); Harris v. Walden, 314 N.C. 284 , 333 S.E.2d 254, 1985 N.C. LEXIS 1785 (1985); Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

Summary judgment is a device to make possible the prompt disposition of controversies on their merits without a trial, if in essence there is no real dispute as to the salient facts. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Town of Southern Pines v. Mohr, 30 N.C. App. 342, 226 S.E.2d 865, 1976 N.C. App. LEXIS 2250 (1976).

This rule is for the disposition of cases where there is no genuine issue of fact. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Riggins v. County of Mecklenburg, 14 N.C. App. 624, 188 S.E.2d 749, 1972 N.C. App. LEXIS 2197 (1972); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979).

The purpose of the motion for summary judgment is to determine prior to trial whether there is any genuine issue with respect to any material fact and, if not, to provide for an early and effective disposition of the matter. Doggett v. Welborn, 18 N.C. App. 105, 196 S.E.2d 36, 1973 N.C. App. LEXIS 1788 , cert. denied, 283 N.C. 665 , 197 S.E.2d 873, 1973 N.C. LEXIS 1032 (1973); Britt v. Britt, 26 N.C. App. 132, 215 S.E.2d 172, 1975 N.C. App. LEXIS 1989 , cert. denied, 288 N.C. 238 , 217 S.E.2d 678, 1975 N.C. LEXIS 901 (1975); Carroll v. Rountree, 34 N.C. App. 167, 237 S.E.2d 566, 1977 N.C. App. LEXIS 1631 (1977).

While a day in court may be a constitutional necessity when there are disputed questions of fact, the function of the motion of summary judgment is to smoke out if there is any case, i.e., any genuine dispute as to any material fact, and if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Town of Southern Pines v. Mohr, 30 N.C. App. 342, 226 S.E.2d 865, 1976 N.C. App. LEXIS 2250 (1976).

Summary judgment allows quick and final disposition of claims where there is no real question as to whether plaintiff should recover, or where the defendant has established a complete defense. Oakley v. Little, 49 N.C. App. 650, 272 S.E.2d 370, 1980 N.C. App. LEXIS 3428 (1980).

The purpose of this rule is to eliminate formal trials where only questions of law are involved. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Nat Harrison Assocs. v. North Carolina State Ports Auth., 280 N.C. 251 , 185 S.E.2d 793, 1972 N.C. LEXIS 1225 (1972); Riggins v. County of Mecklenburg, 14 N.C. App. 624, 188 S.E.2d 749, 1972 N.C. App. LEXIS 2197 (1972); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Phillips v. Universal Underwriters Ins. Co., 43 N.C. App. 56, 257 S.E.2d 671, 1979 N.C. App. LEXIS 3027 (1979); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Poindexter v. Sanco Corp., 44 N.C. App. 694, 262 S.E.2d 333, 1980 N.C. App. LEXIS 2551 (1980); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983).

The purpose of a summary judgment motion is to eliminate a trial when, based on the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are at issue. Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981).

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59, 1984 N.C. App. LEXIS 3477 (1984).

The purpose of this rule is to prevent unnecessary trials when there are no genuine issues of fact and to identify and separate such issues if they are present. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Arnold v. Howard, 29 N.C. App. 570, 225 S.E.2d 149, 1976 N.C. App. LEXIS 2569 (1976); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978); Pierce Concrete, Inc. v. Cannon Realty & Constr. Co., 77 N.C. App. 411, 335 S.E.2d 30, 1985 N.C. App. LEXIS 4065 (1985).

The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. Pressman v. UNC, 78 N.C. App. 296, 337 S.E.2d 644, 1985 N.C. App. LEXIS 4308 (1985).

The purpose of a summary judgment motion is to foreclose the need for a trial when, based upon the pleadings and supporting materials, the trial court determines that only questions of law, not fact, are to be decided. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Thus Saving Time and Expense. —

The obvious purpose of summary judgment is to save time and expense in cases where there is no “genuine issue” as to any material fact. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975).

One purpose of motion for summary judgment is to avoid useless trials when a debtor has chosen to defend rather than default. Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

The purpose of a motion for summary judgment is to avoid a useless trial. N.C. Coastal Motor Line v. Everette Truck Line, 77 N.C. App. 149, 334 S.E.2d 499, 1985 N.C. App. LEXIS 4028 (1985).

It is not the purpose of the summary judgment procedure to resolve disputed material issues of fact. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970); Blackmon v. Valley Decorating Co., 11 N.C. App. 137, 180 S.E.2d 396, 1971 N.C. App. LEXIS 1466 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579, 1973 N.C. App. LEXIS 1928 (1973); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620, 1977 N.C. App. LEXIS 2053 (1977); Carroll v. Rountree, 34 N.C. App. 167, 237 S.E.2d 566, 1977 N.C. App. LEXIS 1631 (1977).

The purpose of this rule is not to allow the court to decide an issue of fact, but to determine whether a genuine issue of fact exists and thereby eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim or defense of a party is exposed. Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980).

Summary judgment is not a device to resolve factual disputes; however, complex facts and legal issues do not preclude summary judgment. Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

Nor to Test the Sufficiency of the Evidence. —

The office of summary judgment is not to test the sufficiency of the evidence. Mitchell v. Mitchell, 12 N.C. App. 54, 182 S.E.2d 627, 1971 N.C. App. LEXIS 1284 (1971).

The summary judgment rule was not intended to deprive a party of a jury trial. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Nor to Provide a Quick and Easy Method of Clearing the Docket. —

The purpose of summary judgment is not to provide a quick and easy method for clearing the docket, but is to permit the disposition of cases in which there is no genuine controversy concerning any fact material to issues raised by the pleadings, so that the litigation involves questions of law only. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Housing, Inc. v. Weaver, 37 N.C. App. 284, 246 S.E.2d 219, 1978 N.C. App. LEXIS 2740 (1978), aff'd, 296 N.C. 581 , 251 S.E.2d 457, 1979 N.C. LEXIS 1204 (1979); Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979).

III.Propriety of Summary Judgment

A.In General

Summary judgment is a drastic remedy. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976); Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983); Bradshaw v. McElroy, 62 N.C. App. 515, 302 S.E.2d 908, 1983 N.C. App. LEXIS 2908 (1983).

And Must Be Used Cautiously. —

Summary judgment is a drastic remedy, one to be approached with caution. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976); DeCarlo v. Gerryco, Inc., 46 N.C. App. 15, 264 S.E.2d 370, 1980 N.C. App. LEXIS 2740 (1980); Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment should be used cautiously. North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

Requirement that summary judgment be entered only where there is no genuine disputed factual issue and the party is entitled to judgment as a matter of law should be cautiously observed. Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980).

While the granting of summary judgment is a drastic remedy and should be granted cautiously, summary judgment is appropriate when the nonmoving party cannot produce evidence of an essential element of his claim. Anderson v. Canipe, 69 N.C. App. 534, 317 S.E.2d 44, 1984 N.C. App. LEXIS 3473 (1984).

Especially in Negligence Cases. —

Summary judgment is a drastic measure, and it should be used with caution, especially in a negligence case in which a jury ordinarily applies the reasonable person standard to the facts of each case. Williams v. Carolina Power & Light Co., 296 N.C. 400 , 250 S.E.2d 255, 1979 N.C. LEXIS 1144 (1979); Willis v. Duke Power Co., 42 N.C. App. 582, 257 S.E.2d 471, 1979 N.C. App. LEXIS 3198 (1979); Brown v. Duke Power Co., 45 N.C. App. 384, 263 S.E.2d 366, 1980 N.C. App. LEXIS 2636 , cert. denied, 300 N.C. 194 , 269 S.E.2d 615, 1980 N.C. LEXIS 1533 (1980); Holcomb v. United States Fire Ins. Co., 52 N.C. App. 474, 279 S.E.2d 50, 1981 N.C. App. LEXIS 2471 (1981); Laughter v. Southern Pump & Tank Co., 75 N.C. App. 185, 330 S.E.2d 51, 1985 N.C. App. LEXIS 3605 , cert. denied, 314 N.C. 666 , 335 S.E.2d 495, 1985 N.C. LEXIS 2119 (1985).

Summary judgment is a somewhat drastic remedy and should be granted cautiously, especially in actions alleging negligence as a basis of recovery. Dumouchelle v. Duke Univ., 69 N.C. App. 471, 317 S.E.2d 100, 1984 N.C. App. LEXIS 3489 (1984).

Although North Carolina appellate courts have consistently held that summary judgment is rarely appropriate in negligence actions, summary judgment should be entered where the forecast of evidence before the trial court demonstrates that a plaintiff cannot support an essential element of his claim. Thus, summary judgment was appropriate in action arising from automobile collision. Patterson v. Pierce, 115 N.C. App. 142, 443 S.E.2d 770, 1994 N.C. App. LEXIS 562 (1994).

And Awarded Only Where the Truth Is Clear. —

Summary judgment is an extreme remedy and should be awarded only where the truth is quite clear. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970); Nationwide Mut. Ins. Co. v. Chantos, 25 N.C. App. 482, 214 S.E.2d 438, 1975 N.C. App. LEXIS 2308 , cert. denied, 287 N.C. 465 , 215 S.E.2d 624, 1975 N.C. LEXIS 1140 (1975); Edwards v. Means, 36 N.C. App. 122, 243 S.E.2d 161, 1978 N.C. App. LEXIS 2416 , cert. denied, 295 N.C. 260 , 245 S.E.2d 777, 1978 N.C. LEXIS 992 (1978); Volkman v. DP Assocs., 48 N.C. App. 155, 268 S.E.2d 265, 1980 N.C. App. LEXIS 3190 (1980); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985).

So That No Party Is Deprived of Trial on a Genuinely Disputed Factual Issue. —

Since this rule provides a somewhat drastic remedy, it must be used with due regard to its purposes and a cautious observance of its requirements, in order that no person shall be deprived of a trial on a genuinely disputed factual issue. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Moore v. Bryson, 11 N.C. App. 260, 181 S.E.2d 113, 1971 N.C. App. LEXIS 1502 (1971); Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270, 1971 N.C. App. LEXIS 1356 , cert. denied, 279 N.C. 619 , 184 S.E.2d 883, 1971 N.C. LEXIS 901 (1971); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); Executive Leasing Assocs. v. Rowland, 30 N.C. App. 590, 227 S.E.2d 642, 1976 N.C. App. LEXIS 2309 (1976); Texaco, Inc. v. Creel, 57 N.C. App. 611, 292 S.E.2d 130, 1982 N.C. App. LEXIS 2694 (1982), aff'd, 310 N.C. 695 , 314 S.E.2d 506, 1984 N.C. LEXIS 1698 (1984); Angola Farm Supply & Equip. Co. v. FMC Corp., 59 N.C. App. 272, 296 S.E.2d 503, 1982 N.C. App. LEXIS 3102 (1982); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Justus v. Deutsch, 62 N.C. App. 711, 303 S.E.2d 571, 1983 N.C. App. LEXIS 2973 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Barnes v. Wilson Hdwe. Co., 77 N.C. App. 473, 336 S.E.2d 457 (1985).

Where matters involving the credibility and weight of the evidence exist, summary judgment ordinarily should be denied. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 363 S.E.2d 215, 1988 N.C. App. LEXIS 31 (1988).

Summary judgment may not be used to resolve factual disputes which are material to the disposition of the action. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Where there is a need to find facts, then summary judgment is not an appropriate device to employ, provided those facts are material. Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Generally Summary Judgment Inappropriate Where Subjective Feelings or Conflicting Evidence Is Involved. —

Generally summary judgment is inappropriate when issues such as motive, intent, and other subjective feelings and reactions are material, or when the evidence presented is subject to conflicting interpretations, or reasonable men might differ as to its significance. Smith v. Currie, 40 N.C. App. 739, 253 S.E.2d 645, 1979 N.C. App. LEXIS 2327 , cert. denied, 297 N.C. 612 , 257 S.E.2d 219, 1979 N.C. LEXIS 1509 (1979); Feibus Co. v. Godley Constr. Co., 301 N.C. 294 , 271 S.E.2d 385, 1980 N.C. LEXIS 1175 (1980).

Summary judgment is rarely proper when a state of mind such as intent or knowledge is at issue. Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23, 1986 N.C. App. LEXIS 2052 (1986); Robertson v. Hartman, 90 N.C. App. 250, 368 S.E.2d 199, 1988 N.C. App. LEXIS 442 (1988).

Summary judgment is generally not appropriate where intent or other subjective feelings are at issue. The rule that intent should generally be a question of fact for the jury does not mean, however, that it should always be so. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986).

Two types of cases involve an absence of material issues of fact: (a) Those where a claim or defense is utterly baseless in fact, and (b) those where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Calhoun v. Calhoun, 18 N.C. App. 429, 197 S.E.2d 83, 1973 N.C. App. LEXIS 1892 (1973); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Rockingham Square Shopping Center, Inc. v. Integon Life Ins. Corp., 52 N.C. App. 633, 279 S.E.2d 918, 1981 N.C. App. LEXIS 2522 , cert. denied, 304 N.C. 196 , 285 S.E.2d 101, 1981 N.C. LEXIS 1446 (1981).

Summary judgment should be granted only when movant is clearly entitled thereto. Houck v. Overcash, 282 N.C. 623 , 193 S.E.2d 905, 1973 N.C. LEXIS 1134 (1973).

Test Is Whether There Is Any Genuine Issue as to Any Material Fact. —

Where a motion for summary judgment, the test is whether on the basis of the materials presented to the court there is any genuine issue as to any material fact. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971); Prather, Thomas, Campbell, Pridgeon, Inc. v. Florilina Properties, Inc., 29 N.C. App. 316, 224 S.E.2d 289, 1976 N.C. App. LEXIS 2465 (1976); Lowe v. Murchison, 44 N.C. App. 488, 261 S.E.2d 255, 1980 N.C. App. LEXIS 2474 (1980).

The critical question for determination by the trial court in considering a motion for summary judgment is whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, establish a genuine issue as to any material fact. Johnston County Tuberculosis Ass'n v. North Carolina Tuberculosis & Respiratory Disease Ass'n, 15 N.C. App. 492, 190 S.E.2d 264, 1972 N.C. App. LEXIS 1947 (1972); In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981).

Upon a motion for summary judgment, the trial court first must determine whether there is a genuine issue as to any material fact. Only after the trial court determines that there is no genuine issue as to any material fact, can it dispose of the matter. Housing, Inc. v. Weaver, 37 N.C. App. 284, 246 S.E.2d 219, 1978 N.C. App. LEXIS 2740 (1978), aff'd, 296 N.C. 581 , 251 S.E.2d 457, 1979 N.C. LEXIS 1204 (1979).

And Whether Party Is Entitled to Judgment. —

The test for summary judgment is twofold: Is there a genuine issue of material fact, and is the moving party entitled to judgment as a matter of law? Gore v. Hill, 52 N.C. App. 620, 279 S.E.2d 102, 1981 N.C. App. LEXIS 2452 (1981); First Am. Fed. Sav. & Loan Ass'n v. Royall, 77 N.C. App. 131, 334 S.E.2d 792, 1985 N.C. App. LEXIS 4025 (1985).

The test on a motion for summary judgment made under this rule and supported by matters outside the pleadings is whether, on the basis of the materials presented to the courts, there is any genuine issue as to any material fact and whether the movant is entitled to judgment as a matter of law. Barbour v. Little, 37 N.C. App. 686, 247 S.E.2d 252, 1978 N.C. App. LEXIS 2830 , cert. denied, 295 N.C. 733 , 248 S.E.2d 862, 1978 N.C. LEXIS 1129 (1978); Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 368 S.E.2d 391, 1988 N.C. App. LEXIS 539 (1988), aff'd, 325 N.C. 202 , 381 S.E.2d 698, 1989 N.C. LEXIS 375 (1989).

On motion for summary judgment, the question before the court is whether 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 a party is entitled to judgment as a matter of law. Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E.2d 584, 1980 N.C. App. LEXIS 3163 (1980); Buffington v. Buffington, 69 N.C. App. 483, 317 S.E.2d 97, 1984 N.C. App. LEXIS 3488 (1984); Dumouchelle v. Duke Univ., 69 N.C. App. 471, 317 S.E.2d 100, 1984 N.C. App. LEXIS 3489 (1984); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988); Meadows v. Cigar Supply Co., 91 N.C. App. 404, 371 S.E.2d 765, 1988 N.C. App. LEXIS 883 (1988).

Where there is no genuine issue as to any material fact, the sole question for the court’s determination is whether defendant is entitled to judgment as a matter of law. Weaver v. Home Sec. Life Ins. Co., 20 N.C. App. 135, 201 S.E.2d 63, 1973 N.C. App. LEXIS 1491 (1973); Prather, Thomas, Campbell, Pridgeon, Inc. v. Florilina Properties, Inc., 29 N.C. App. 316, 224 S.E.2d 289, 1976 N.C. App. LEXIS 2465 (1976).

Determination of what constitutes a “genuine issue as to any material fact” is often difficult. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976).

A genuine issue is one which can be maintained by substantial evidence. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976); Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980); Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Justus v. Deutsch, 62 N.C. App. 711, 303 S.E.2d 571, 1983 N.C. App. LEXIS 2973 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Anderson v. Canipe, 69 N.C. App. 534, 317 S.E.2d 44, 1984 N.C. App. LEXIS 3473 (1984); All In One Maintenance Serv. v. Beech Mt. Constr. Co., 70 N.C. App. 49, 318 S.E.2d 856, 1984 N.C. App. LEXIS 3608 (1984); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985); Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986); Sturm v. Goss, 90 N.C. App. 326, 368 S.E.2d 399, 1988 N.C. App. LEXIS 542 (1988).

A genuine issue of material fact is defined as one in which the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. A genuine issue is one which can be maintained by substantial evidence. Smith v. Smith, 65 N.C. App. 139, 308 S.E.2d 504, 1983 N.C. App. LEXIS 3393 (1983).

When Issue Is Material. —

An issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658, 1977 N.C. App. LEXIS 2029 (1977); First Citizens Bank & Trust Co. v. Northwestern Ins. Co., 44 N.C. App. 414, 261 S.E.2d 242, 1980 N.C. App. LEXIS 2469 (1980); Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985).

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. Raleigh Paint & Wallpaper Co. v. Peaco*ck & Assocs., 38 N.C. App. 144, 247 S.E.2d 728, 1978 N.C. App. LEXIS 2119 (1978); Miller v. Lemon Tree Inn of Wilmington, Inc., 39 N.C. App. 133, 249 S.E.2d 836, 1978 N.C. App. LEXIS 2348 (1978); Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980); Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982); Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983).

An issue is material if the facts alleged would constitute a legal defense or would affect the result of the action. North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

A fact is material if it would constitute or would irrevocably establish any material element of a claim or defense. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Anderson v. Canipe, 69 N.C. App. 534, 317 S.E.2d 44, 1984 N.C. App. LEXIS 3473 (1984); All In One Maintenance Serv. v. Beech Mt. Constr. Co., 70 N.C. App. 49, 318 S.E.2d 856, 1984 N.C. App. LEXIS 3608 (1984); Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986).

A fact is material if it constitutes a legal defense, such as the bar of an applicable statute of limitations. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

In application for life insurance policy, written questions and answers relating to health are material as a matter of law. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983).

How Absence of Genuine Issue of Material Fact Established. —

A party may show that there is no genuine issue as to any material facts by showing that no facts are in dispute. And where an issue of fact arises, a party may show that it is not a genuine issue as to a material fact by showing that the party with the burden of proof in the action will not be able to present substantial evidence which would allow that issue to be resolved in his favor. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979).

A question of fact which is immaterial does not preclude summary judgment. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Keith v. G.D. Reddick, Inc., 15 N.C. App. 94, 189 S.E.2d 775, 1972 N.C. App. LEXIS 1830 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Johnson v. Northwestern Bank, 27 N.C. App. 240, 218 S.E.2d 722, 1975 N.C. App. LEXIS 1806 (1975); Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976); Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658, 1977 N.C. App. LEXIS 2029 (1977); Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978); Ledford v. Ledford, 49 N.C. App. 226, 271 S.E.2d 393, 1980 N.C. App. LEXIS 3375 (1980); Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986); Prince v. Mallard Lakes Ass'n, 82 N.C. App. 431, 346 S.E.2d 191, 1986 N.C. App. LEXIS 2457 (1986); Dull v. Mutual of Omaha Ins. Co., 85 N.C. App. 310, 354 S.E.2d 752, 1987 N.C. App. LEXIS 2598 (1987).

Summary Judgment to Be Granted Only Where No Genuine Issue of Material Fact Is Presented. —

Summary judgment is an extreme remedy and is appropriate only where no genuine issue of material fact is presented. Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, 1976 N.C. App. LEXIS 2188 , cert. denied, 290 N.C. 776 , 229 S.E.2d 32, 1976 N.C. LEXIS 1192 (1976); Emanuel v. Colonial Life & Accident Ins. Co., 35 N.C. App. 435, 242 S.E.2d 381, 1978 N.C. App. LEXIS 3005 (1978).

Summary judgment should be granted with caution and only where the movant has established the nonexistence of any genuine issue of fact. English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979).

In ruling on a motion for summary judgment the court does not resolve issues of fact, and must deny the motion if there is any issue of genuine material fact. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Whitten v. Bob King's AMC/Jeep, Inc., 30 N.C. App. 161, 226 S.E.2d 530, 1976 N.C. App. LEXIS 2173 (1976), rev'd, 292 N.C. 84 , 231 S.E.2d 891, 1977 N.C. LEXIS 1044 (1977); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Southland Assocs. v. Peach, 52 N.C. App. 340, 278 S.E.2d 293, 1981 N.C. App. LEXIS 2442 (1981).

Summary judgment may not be granted if there is any genuine issue as to any material fact. Williams v. North Carolina State Bd. of Educ., 284 N.C. 588 , 201 S.E.2d 889, 1974 N.C. LEXIS 1291 (1974); Gray v. American Express Co., 34 N.C. App. 714, 239 S.E.2d 621, 1977 N.C. App. LEXIS 1799 (1977).

The motion for summary judgment should not be granted unless it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985).

Before entry of summary judgment it must be clearly established by the record before the trial court that there is a lack of any triable issue of fact. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Generally, on undisputed aspects of the opposing evidential forecast, where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852, 1982 N.C. App. LEXIS 2679 (1982); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982); Bicycle Transit Auth., Inc. v. Bell, 314 N.C. 219 , 333 S.E.2d 299, 1985 N.C. LEXIS 1777 (1985).

Summary judgment is proper only where there are no material facts in issue. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment is appropriate only where there are no genuine and material issues of fact to be resolved. Harris-Teeter Supermarkets, Inc. v. Hampton, 76 N.C. App. 649, 334 S.E.2d 81, 1985 N.C. App. LEXIS 3915 (1985).

Summary judgment under this section should be granted when there is no genuine issue of material fact and only issues of law remain. Johnson v. Holbrook, 77 N.C. App. 485, 335 S.E.2d 53, 1985 N.C. App. LEXIS 4071 (1985).

Evidence held insufficient to establish any genuine issue of material fact. Long v. Vertical Technologies, Inc., 113 N.C. App. 598, 439 S.E.2d 797, 1994 N.C. App. LEXIS 150 (1994).

And Where a Party Is Entitled to Judgment as a Matter of Law. —

Summary judgment is proper only when there is no genuine issue as to any material fact and one party is entitled to judgment as a matter of law. Bogle v. Duke Power Co., 27 N.C. App. 318, 219 S.E.2d 308 (1975), cert. denied, 289 N.C. 296 , 222 S.E.2d 695 (1976); Mecklenburg County v. Westbery, 32 N.C. App. 630, 233 S.E.2d 658 (1977); Frye v. Arrington, 58 N.C. App. 180, 292 S.E.2d 772 (1982); Laughter v. Southern Pump & Tank Co., 75 N.C. App. 185, 330 S.E.2d 51, cert. denied, 314 N.C. 666 , 335 S.E.2d 495 (1985); Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116 (1985); Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23 (1986); Ward v. Turcotte, 79 N.C. App. 458, 339 S.E.2d 444 (1986); Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510 (1986). In accord with first paragraph in main volume. See Vance v. Wiley T. Booth, Inc., 112 N.C. App. 600, 436 S.E.2d 256, 1993 N.C. App. LEXIS 1202 (1993).

Rendition of summary judgment is conditioned upon a showing by the movant that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment as a matter of law. Page v. Sloan, 12 N.C. App. 433, 183 S.E.2d 813, 1971 N.C. App. LEXIS 1380 (1971), aff'd, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Van Poole v. Messer, 19 N.C. App. 70, 198 S.E.2d 106, 1973 N.C. App. LEXIS 1569 (1973); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Parker v. Bennett, 32 N.C. App. 46, 231 S.E.2d 10, 1977 N.C. App. LEXIS 1854 , cert. denied, 292 N.C. 266 , 233 S.E.2d 393, 1977 N.C. LEXIS 1073 (1977); Harris v. Carter, 33 N.C. App. 179, 234 S.E.2d 472, 1977 N.C. App. LEXIS 2122 (1977); Moore v. Fieldcrest Mills, Inc., 36 N.C. App. 350, 244 S.E.2d 208, 1978 N.C. App. LEXIS 2480 (1978), aff'd, 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979); Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627, 1979 N.C. App. LEXIS 2438 , rev'd, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Strickland v. Tant, 41 N.C. App. 534, 255 S.E.2d 325, 1979 N.C. App. LEXIS 2662 , cert. denied, 298 N.C. 304 , 259 S.E.2d 917, 1979 N.C. LEXIS 1619 (1979); Willis v. Duke Power Co., 42 N.C. App. 582, 257 S.E.2d 471, 1979 N.C. App. LEXIS 3198 (1979); Williams v. Congdon, 43 N.C. App. 53, 257 S.E.2d 677, 1979 N.C. App. LEXIS 3023 (1979); Heritage Communities of N.C. Inc. v. Powers, Inc., 49 N.C. App. 656, 272 S.E.2d 399, 1980 N.C. App. LEXIS 3441 (1980); Miller v. Triangle Volkswagen, Inc., 55 N.C. App. 593, 286 S.E.2d 608, 1982 N.C. App. LEXIS 2252 (1982); Ft. Recovery Indus., Inc. v. Perry, 57 N.C. App. 354, 291 S.E.2d 329, 1982 N.C. App. LEXIS 2636 (1982); Candid Camera Video World, Inc. v. Mathews, 76 N.C. App. 634, 334 S.E.2d 94, 1985 N.C. App. LEXIS 3931 (1985).

Motion for summary judgment may be granted only when there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976); Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978); Branch Banking & Trust Co. v. Creasy, 301 N.C. 44 , 269 S.E.2d 117, 1980 N.C. LEXIS 1142 (1980); First Citizens Bank & Trust Co. v. Northwestern Ins. Co., 44 N.C. App. 414, 261 S.E.2d 242, 1980 N.C. App. LEXIS 2469 (1980); Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 268 S.E.2d 271, 1980 N.C. App. LEXIS 3192 (1980); Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718, 1981 N.C. App. LEXIS 2226 (1981); Loy v. Lorm Corp., 52 N.C. App. 428, 278 S.E.2d 897, 1981 N.C. App. LEXIS 2468 (1981); Lattimore v. Fisher's Food Shoppe, Inc., 69 N.C. App. 227, 316 S.E.2d 344, 1984 N.C. App. LEXIS 3403 (1984), rev'd, 313 N.C. 467 , 329 S.E.2d 346, 1985 N.C. LEXIS 1542 (1985); Ivey v. Williams, 74 N.C. App. 532, 328 S.E.2d 837, 1985 N.C. App. LEXIS 3494 (1985).

Summary judgment is proper 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 the moving party is entitled to judgment as a matter of law. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Ryals v. Barefoot, 19 N.C. App. 564, 199 S.E.2d 483, 1973 N.C. App. LEXIS 1703 (1973); Pilot Freight Carriers, Inc. v. David G. Allen Co., 22 N.C. App. 442, 206 S.E.2d 750, 1974 N.C. App. LEXIS 2352 (1974), cert. denied, 287 N.C. 465 , 215 S.E.2d 625, 1975 N.C. LEXIS 1137 (1975); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barnes v. Barnes, 30 N.C. App. 196, 226 S.E.2d 549, 1976 N.C. App. LEXIS 2180 , cert. denied, 290 N.C. 775 , 229 S.E.2d 31, 1976 N.C. LEXIS 1185 (1976); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, 1976 N.C. App. LEXIS 2188 , cert. denied, 290 N.C. 776 , 229 S.E.2d 32, 1976 N.C. LEXIS 1192 (1976); Whitten v. Bob King's AMC/Jeep, Inc., 292 N.C. 84 , 231 S.E.2d 891, 1977 N.C. LEXIS 1044 (1977); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620, 1977 N.C. App. LEXIS 2053 (1977); Edwards v. Means, 36 N.C. App. 122, 243 S.E.2d 161, 1978 N.C. App. LEXIS 2416 , cert. denied, 295 N.C. 260 , 245 S.E.2d 777, 1978 N.C. LEXIS 992 (1978); Bentley v. Langley, 39 N.C. App. 20, 249 S.E.2d 481, 1978 N.C. App. LEXIS 2332 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 176, 1979 N.C. LEXIS 1428 (1979); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979); Jenkins v. Stewart & Everett Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, 1979 N.C. App. LEXIS 2439 , cert. denied, 297 N.C. 698 , 259 S.E.2d 295, 1979 N.C. LEXIS 1535 (1979); Neihage v. Kittrell Auto Parts, Inc., 41 N.C. App. 538, 255 S.E.2d 315, 1979 N.C. App. LEXIS 2665 , cert. denied, 298 N.C. 298 , 259 S.E.2d 914, 1979 N.C. LEXIS 1593 (1979); Stillwell Enters., Inc. v. Interstate Equip. Co., 41 N.C. App. 204, 254 S.E.2d 770, 1979 N.C. App. LEXIS 2440 (1979), rev'd, 300 N.C. 286 , 266 S.E.2d 812, 1980 N.C. LEXIS 1071 (1980); Johnson v. Phoenix Mut. Life Ins. Co., 44 N.C. App. 210, 261 S.E.2d 135, 1979 N.C. App. LEXIS 3264 (1979), rev'd, 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Wells v. North Carolina Nat'l Bank, 44 N.C. App. 592, 261 S.E.2d 296, 1980 N.C. App. LEXIS 2494 (1980); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Econo-Travel Motor Hotel Corp. v. Taylor, 45 N.C. App. 229, 262 S.E.2d 869, 1980 N.C. App. LEXIS 2608 , rev'd, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980); Bell v. Martin, 299 N.C. 715 , 264 S.E.2d 101, 1980 N.C. LEXIS 991 (1980); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980); Quail Hollow E. Condominium Ass'n v. Donald J. Scholz Co., 47 N.C. App. 518, 268 S.E.2d 12, 1980 N.C. App. LEXIS 3166 (1980); Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207 , 274 S.E.2d 206, 1981 N.C. LEXIS 1044 (1981); Kent v. Humphries, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981); Dealers Specialties, Inc. v. Neighborhood Hous. Servs., Inc., 54 N.C. App. 46, 283 S.E.2d 155, 1981 N.C. App. LEXIS 2811 (1981), modified, 305 N.C. 633 , 291 S.E.2d 137, 1982 N.C. LEXIS 1341 (1982); Sharpe v. Quality Educ., Inc., 59 N.C. App. 304, 296 S.E.2d 661, 1982 N.C. App. LEXIS 3113 (1982); Ruffin v. Contractors & Materials, Inc., 69 N.C. App. 174, 316 S.E.2d 353, 1984 N.C. App. LEXIS 3399 (1984); Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

In order for the granting of plaintiff’s motion for summary judgment to be appropriate, it must appear from the items submitted in support of plaintiff’s motion that plaintiff was entitled to judgment as a matter of law. Atkinson v. Wilkerson, 10 N.C. App. 643, 179 S.E.2d 872, 1971 N.C. App. LEXIS 1688 (1971); Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631, 272 S.E.2d 374, 1980 N.C. App. LEXIS 3427 (1980).

If the evidentiary materials filed by the parties indicate that a genuine issue of material fact does exist, the motion for summary judgment must be denied, as the motion may be granted only where there is no such issue and the moving party is entitled to judgment as a matter of law. Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980).

In addition to no issue of fact being present, to grant summary judgment a court must find that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law. Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982).

Summary judgment, like judgment on the pleadings, is appropriately granted only where no disputed issues of fact have been presented and the undisputed facts show that any party is entitled to judgment as a matter of law. Minor v. Minor, 70 N.C. App. 76, 318 S.E.2d 865, 1984 N.C. App. LEXIS 3611 (1984).

When considering a motion for summary judgment, the question before the court is whether 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 a party is entitled to judgment as a matter of law. The burden upon the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined and this burden may be carried by a movant by proving that an essential element of the opposing party’s claim is nonexistent. Gray v. Hager, 69 N.C. App. 331, 317 S.E.2d 59, 1984 N.C. App. LEXIS 3477 (1984).

A motion for summary judgment should be allowed only when there exists no triable genuine issue of material fact and the movant’s forecast of the evidence demonstrates that it is entitled to a judgment as a matter of law. Cashion v. Texas Gulf, Inc., 79 N.C. App. 632, 339 S.E.2d 797, 1986 N.C. App. LEXIS 2107 (1986).

Summary judgment is appropriate only where the pleadings, affidavits and other evidentiary materials before the court disclose that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61, 1986 N.C. App. LEXIS 2162 (1986).

A party moving for summary judgment is entitled to such judgment if he can show, through pleadings and affidavits, that there is no genuine issue of material fact requiring a trial and that he is entitled to judgment as a matter of law. Hagler v. Hagler, 319 N.C. 287 , 354 S.E.2d 228, 1987 N.C. LEXIS 1927 (1987).

This rule does not require that party move for summary judgment in order to be entitled to it; however, the nonmovant must be entitled to the judgment as a matter of law. N.C. Coastal Motor Line v. Everette Truck Line, 77 N.C. App. 149, 334 S.E.2d 499, 1985 N.C. App. LEXIS 4028 (1985).

There was no merit to plaintiff’s argument that upon plaintiff’s motion for summary judgment, the trial court was unauthorized to enter summary judgment for defendant because defendant had not requested summary judgment. Summary judgment could, when appropriate, be rendered against the party moving for such judgment. Sullivan v. Pender County, 196 N.C. App. 726, 676 S.E.2d 69, 2009 N.C. App. LEXIS 526 (2009).

Evidence Must Be Insufficient to Support a Verdict for Nonmovant. —

Motion for summary judgment should be granted only if, as a matter of law, the evidence is insufficient to support a verdict for the nonmovant. Freeman v. Sturdivant Dev. Co., 25 N.C. App. 56, 212 S.E.2d 190, 1975 N.C. App. LEXIS 2168 (1975).

Even If Facts Claimed by Plaintiff Are Proved or Taken as True. —

Summary judgment is proper when it appears that even if the facts as claimed by plaintiff are taken as true, there can be no recovery. Doggett v. Welborn, 18 N.C. App. 105, 196 S.E.2d 36, 1973 N.C. App. LEXIS 1788 , cert. denied, 283 N.C. 665 , 197 S.E.2d 873, 1973 N.C. LEXIS 1032 (1973); Hudson v. All Star Mills, Inc., 68 N.C. App. 447, 315 S.E.2d 514, 1984 N.C. App. LEXIS 3297 (1984); Lowder v. Lowder, 68 N.C. App. 505, 315 S.E.2d 520, 1984 N.C. App. LEXIS 3299 (1984).

Summary judgment is proper where it appears that even if the facts as claimed by a plaintiff are proved, there can be no recovery, thus providing a device for identifying the factually groundless claim or defense. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970).

Absence of Evidence Leading to Different Conclusion Must Be Shown. —

Before summary judgment may be had, the record must affirmatively show that not only would the moving party be entitled to judgment from the evidence before the court, but it must also show there can be no other evidence from which a jury could reach a different conclusion as to a material fact. Goode v. Tait, Inc., 36 N.C. App. 268, 243 S.E.2d 404, 1978 N.C. App. LEXIS 2466 , cert. denied, 295 N.C. 465 , 246 S.E.2d 215, 1978 N.C. LEXIS 902 (1978); McLean v. Sale, 38 N.C. App. 520, 248 S.E.2d 372, 1978 N.C. App. LEXIS 2230 (1978), cert. denied, 296 N.C. 585 , 254 S.E.2d 32, 1979 N.C. LEXIS 1217 (1979); Easter v. Lexington Mem. Hosp., 49 N.C. App. 398, 271 S.E.2d 545, 1980 N.C. App. LEXIS 3395 (1980), rev'd, 303 N.C. 303 , 278 S.E.2d 253, 1981 N.C. LEXIS 1095 (1981).

If different material conclusions can be drawn from the evidence, summary judgment should be denied, even though the evidence is uncontradicted. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Spector United Employees Credit Union v. Smith, 45 N.C. App. 432, 263 S.E.2d 319, 1980 N.C. App. LEXIS 2650 (1980).

Where the evidence of the party to be awarded summary judgment is self-contradictory or allows reasonable inferences inconsistent with conclusions necessary to entitle that party to summary judgment, the trial court should not enter summary judgment and should allow the case to proceed to trial. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment should be denied if different material conclusions can be drawn from the evidence. Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988).

As Where Moving Papers Affirmatively Disclose a Material Controversy. —

Where the moving papers affirmatively disclose that the nature of the controversy presents a good faith and actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978).

Motion for summary judgment must be denied if the opposing party submits material which casts doubts upon the existence of a material fact or upon the credibility of a material witness, or if such doubts are raised by movant’s own evidentiary material. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary judgment is appropriate when movant shows through discovery that the opposing party cannot produce evidence to support an essential element of his claim. Dellinger v. Belk, 34 N.C. App. 488, 238 S.E.2d 788, 1977 N.C. App. LEXIS 1725 (1977), cert. denied, 294 N.C. 182 , 241 S.E.2d 517, 1978 N.C. LEXIS 1198 (1978).

Lack of Cause of Action or Defense Supports Grant of Judgment. —

Where the pleadings or proof disclose that no cause of action or defense exists, summary judgment may be granted. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Nat Harrison Assocs. v. North Carolina State Ports Auth., 280 N.C. 251 , 185 S.E.2d 793, 1972 N.C. LEXIS 1225 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976).

Where the pleadings or proof disclose that no cause of action exists, summary judgment may be granted. Davenport v. Davenport, 25 N.C. App. 621, 214 S.E.2d 294, 1975 N.C. App. LEXIS 2341 (1975); Williams v. Congdon, 43 N.C. App. 53, 257 S.E.2d 677, 1979 N.C. App. LEXIS 3023 (1979); Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705, 1980 N.C. App. LEXIS 2619 (1980).

Summary judgment is appropriately entered if the movant establishes that an essential part or element of the opposing party’s claim is nonexistent. Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Where the pleadings or proof of the plaintiff disclose that no claim exists, summary judgment for defendant is proper. Colonial Bldg. Co. v. Justice, 83 N.C. App. 643, 351 S.E.2d 140, 1986 N.C. App. LEXIS 2744 (1986).

When the only issues to be decided are issues of law, summary judgment is proper. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987).

And Presence of Difficult Questions of Law Is No Barrier. —

Where there is no genuine issue as to the facts, the presence of important or difficult questions of law is no barrier to the granting of summary judgment. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979).

Summary judgment is appropriate where there is no genuine issue of material fact and the case presents only questions of law. This is true even if the questions of law are complex. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

Movant Entitled to Summary Judgment Where Directed Verdict Would Be Required. —

If the materials before the court at the summary judgment hearing would require a directed verdict for defendants at trial, defendants are entitled to summary judgment. Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980).

If a verdict would be directed for the movant on the evidence presented at the hearing on the motion for summary judgment, the motion for summary judgment may properly be granted. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Haskins v. Carolina Power & Light Co., 47 N.C. App. 664, 267 S.E.2d 587, 1980 N.C. App. LEXIS 3164 (1980).

On motion for summary judgment, the test is whether the moving party presents materials which would require a directed verdict in his favor if offered as evidence at trial. Haithco*ck v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Coakley v. Ford Motor Co., 11 N.C. App. 636, 182 S.E.2d 260, 1971 N.C. App. LEXIS 1602 , cert. denied, 279 N.C. 393 , 183 S.E.2d 244, 1971 N.C. LEXIS 815 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979).

Unless Nonmovant Shows a Triable Issue of Fact. —

Where a motion for summary judgment is supported by proof which would require a directed verdict in his favor at trial, movant is entitled to summary judgment, unless the opposing party comes forward to show a triable issue of material fact. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

The opposing party is not entitled to have the motion for summary judgment denied on the mere hope that at trial he will be able to discredit movant’s evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Or Shows Unavailability of Affidavits. —

If the party moving for summary judgment by affidavit or otherwise presents materials which would require a directed verdict in his favor if presented at trial, he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him or comes forward with affidavits or other materials that show there is a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 14 N.C. App. 567, 188 S.E.2d 661, 1972 N.C. App. LEXIS 2177 , rev'd, 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Brooks v. Smith, 27 N.C. App. 223, 218 S.E.2d 489, 1975 N.C. App. LEXIS 1802 (1975).

If plaintiff’s claim is barred by the statute of limitations, defendant is entitled to judgment as a matter of law and summary judgment is appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878, 1971 N.C. App. LEXIS 1703 (1971); Poston v. Morgan-Schultheiss, Inc., 46 N.C. App. 321, 265 S.E.2d 615, 1980 N.C. App. LEXIS 2816 (1980).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985).

The statute of limitations, if properly pled, and if all the facts with reference thereto are admitted or established, may act as an affirmative defense, barring plaintiff’s claims and entitling defendants to summary judgment as a matter of law. Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560, 1987 N.C. App. LEXIS 2745 (1987); Rowan County Bd. of Educ. v. United States Gypsum Co., 87 N.C. App. 106, 359 S.E.2d 814, 1987 N.C. App. LEXIS 3072 (1987).

When the statute of limitations is properly pleaded and the facts of the case are not in dispute, resolution of the question becomes a matter of law, and summary judgment may be appropriate. Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 353 S.E.2d 123, 1987 N.C. App. LEXIS 2508 (1987); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

The failure of the defendant to plead res judicata is not a bar to that issue being raised at hearing on summary judgment. County of Rutherford ex rel. Child Support Enforcement Agency ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 394 S.E.2d 263, 1990 N.C. App. LEXIS 818 (1990).

When defendant establishes a complete defense to plaintiff’s claim, he is entitled to the quick and final disposition of that claim which summary judgment provides. Ballinger v. North Carolina Dep't of Revenue, 59 N.C. App. 508, 296 S.E.2d 836, 1982 N.C. App. LEXIS 3153 (1982), cert. denied, 307 N.C. 576 , 299 S.E.2d 645, 1983 N.C. LEXIS 1176 (1983).

The court may grant summary judgment if the movant conclusively establishes every element of its claim or conclusively establishes a complete defense or legal bar to the nonmovant’s claim. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

A defending party is entitled to summary judgment if he can show that no claim for relief exists or that the claimant cannot overcome an affirmative defense to the claim. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61, 1986 N.C. App. LEXIS 2162 (1986).

A defending party is entitled to summary judgment if it can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Motive, like intent or other states of mind, is rarely susceptible to direct proof and almost always depends on inferences drawn from circ*mstantial evidence. Consequently, summary judgment should rarely be granted in cases in which it is at issue. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 363 S.E.2d 215, 1988 N.C. App. LEXIS 31 (1988).

Constitutional Arguments Susceptible to Summary Judgment. —

Since the general rule is that the constitutionality of a statute is to be determined merely from an examination of the statute itself and of only those matters of which the court may take judicial notice, plaintiff ’s constitutional arguments presented a question of law and were properly susceptible to summary judgment. Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Summary judgment is not a proper remedy for failure to join a necessary party. Dildy v. Southeastern Fire Ins. Co., 13 N.C. App. 66, 185 S.E.2d 272, 1971 N.C. App. LEXIS 1158 (1971).

Summary judgment procedure is available to both plaintiff and defendant. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Clear Fir Sales Co. v. Carolina Plywood Distrib., Inc., 13 N.C. App. 429, 185 S.E.2d 737, 1972 N.C. App. LEXIS 2257 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972).

A defending party may show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the claimant’s claim for relief and that the claimant cannot prove the existence of that element. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979); Ramsey v. Rudd, 49 N.C. App. 670, 272 S.E.2d 162, 1980 N.C. App. LEXIS 3437 (1980).

If defendants clearly establish that there is no genuine issue as to the nonexistence of material facts which are necessary as an essential element of any cause of action against them, then they are entitled to summary judgment on that action. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986).

Party Need Not Move for Judgment in Order to Be Entitled to It. —

Section (c) of this rule does not require that a party move for summary judgment in order to be entitled to it. Greenway v. North Carolina Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 241 S.E.2d 339, 1978 N.C. App. LEXIS 2963 (1978); McNair Constr. Co. v. Fogle Bros. Co., 64 N.C. App. 282, 307 S.E.2d 200, 1983 N.C. App. LEXIS 3264 (1983).

Summary judgment may be granted in favor of a nonmoving party in proper cases. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment in favor of the nonmovant is appropriate when the evidence presented demonstrates that no material issues of fact are in dispute, and the nonmovant is entitled to entry of judgment as a matter of law. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

In an appropriate case, summary judgment may be rendered against the moving party. Candid Camera Video World, Inc. v. Mathews, 76 N.C. App. 634, 334 S.E.2d 94, 1985 N.C. App. LEXIS 3931 (1985).

After Movant Is Given Opportunity to Show Existence of a Genuine Issue. —

Summary judgment for the nonmoving party should be granted only when the moving party has been given adequate opportunity to show in opposition that there is a genuine issue of fact to be resolved. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Granting of Summary Judgment by Judge on Own Motion. —

The granting of summary judgment or judgment on the pleadings by the trial judge on his own motion is a practice not to be commended, and is clearly erroneous where there is a factual question to be answered. Crews v. Taylor, 21 N.C. App. 296, 204 S.E.2d 193, 1974 N.C. App. LEXIS 1784 (1974).

Rarely is it proper to enter summary judgment in favor of the party having the burden of proof. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

Jurisdiction of Successor Judge. —

Successor judge in the superior court had no jurisdiction to overrule at summary judgment the order of the first judge who in ruling on the same legal issues at summary judgment determined that the issues were to go to trial rather than be decided on summary judgment. Cail v. Cerwin, 185 N.C. App. 176, 648 S.E.2d 510, 2007 N.C. App. LEXIS 1684 (2007).

Summary judgment may be granted for a party with the burden of proof on his own affidavits (1) when there are only latent doubts as to the affiant’s credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize section (f) of this rule; and (3) when summary judgment is otherwise appropriate. Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985); Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23, 1986 N.C. App. LEXIS 2052 (1986).

Plaintiff’s bare assertions in unverified complaint, which were denied by defendant, held insufficient to support entry of summary judgment for plaintiff. Smith v. Rushing Constr. Co., 84 N.C. App. 692, 353 S.E.2d 692, 1987 N.C. App. LEXIS 2540 (1987).

Where plaintiff made a motion for summary judgment, which was denied, and later plaintiff filed a second motion for summary judgment involving the same issue as presented by the initial motion, the trial court erred by granting plaintiff’s second motion for summary judgment. Taylorsville Fed. Savs. & Loan Ass'n v. Keen, 110 N.C. App. 784, 431 S.E.2d 484, 1993 N.C. App. LEXIS 691 (1993).

Appellate Conclusion Improper. —

Where Court of Appeals majority opinion included a paragraph that concluded that a balancing of the equities favored denial of relief to plaintiff, such a conclusion was improper at the summary judgment stage. Roberts v. Madison County Realtors Ass'n, 344 N.C. 394 , 474 S.E.2d 783, 1996 N.C. LEXIS 485 (1996).

Judgment on Pleadings Treated As Summary Judgment. —

Where matters outside the pleadings were considered by the court in reaching its decision on the judgment on the pleadings, the motion was treated as if it was a motion for summary judgment. Helms v. Holland, 124 N.C. App. 629, 478 S.E.2d 513, 1996 N.C. App. LEXIS 1207 (1996).

Standing Determination May Be Reviewed by Subsequent Superior Court Judge. —

Standing is an issue of subject matter jurisdiction which may be raised at any time; therefore, it is proper for a second superior court judge to review standing in motion for summary judgment after a previous motion to dismiss had been denied by another judge. Transcontinental Gas Pipe Line Corp. v. Calco Enters., 132 N.C. App. 237, 511 S.E.2d 671, 1999 N.C. App. LEXIS 104 (1999).

Summary Judgment Granted. —

Landowner was entitled to summary judgment pursuant to G.S. 1A-1 , Rule 56 in the landowner’s action seeking relief from a county ordinance that imposed a moratorium on the issuance of building permits dealing with the construction of heavy industry; the ordinance was invalid, because notice was not given once a week for two successive weeks before the public hearing on the ordinance was held, as was required under G.S. 153A-323, and instead notice was only published once. Sandy Mush Props., Inc. v. Rutherford County, 160 N.C. App. 683, 586 S.E.2d 849, 2003 N.C. App. LEXIS 1934 (2003), op. withdrawn, sub. op., 164 N.C. App. 162, 595 S.E.2d 233, 2004 N.C. App. LEXIS 743 (2004).

Summary Judgment Denied. —

Given the fact issues as to whether an officer violated a worker’s constitutional rights, the officer was not immune from suit and summary judgment was denied. Campbell v. Anderson, 156 N.C. App. 371, 576 S.E.2d 726, 2003 N.C. App. LEXIS 128 (2003).

Exclusions in a commercial insurance policy issued to a corporation precluded the conclusion that it provided coverage for a non-covered vehicle involved in an accident while being driven by the owner of the corporation, and an appellate court declined to disregard the corporation’s identity under the doctrine of piercing the corporate veil for the purpose of reaching the coverage in the corporation’s policy; a trial court erred in denying an insurance company’s motion for summary judgment and in granting summary judgment for an administratrix in a declaratory judgment action brought by the administratrix seeking to determine the rights and responsibilities relating to the corporation’s commercial policy. Cherry v. State Farm Mut. Auto. Ins. Co., 162 N.C. App. 535, 590 S.E.2d 925, 2004 N.C. App. LEXIS 179 (2004).

B.Particular Types of Actions, etc

This rule is not limited in its application to any particular type or types of action. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

While the motion for summary judgment will receive stricter application in negligence cases, summary judgment is available in all types of litigation to both plaintiff and defendant. Emerson v. Great Atl. & Pac. Tea Co., 41 N.C. App. 715, 255 S.E.2d 768, 1979 N.C. App. LEXIS 2731 (1979).

Section (a) of this rule contemplates that summary judgment may be granted for any type of claim, counterclaim, or cross-claim, or for a declaratory judgment, so long as the issue to be determined is one which lends itself to summary adjudication. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978).

Summary judgment may be granted for any type of claim, including a claim for specific performance of a contract. Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

Summary judgment is an appropriate procedure in a declaratory judgment action. Montgomery v. Hinton, 45 N.C. App. 271, 262 S.E.2d 697, 1980 N.C. App. LEXIS 2627 (1980); Threatte v. Threatte, 59 N.C. App. 292, 296 S.E.2d 521, 1982 N.C. App. LEXIS 3109 (1982), vacated, 308 N.C. 384 , 302 S.E.2d 226, 1983 N.C. LEXIS 1171 (1983); Pine Knoll Ass'n v. Cardon, 126 N.C. App. 155, 484 S.E.2d 446, 1997 N.C. App. LEXIS 327 (1997).

Summary judgment may be entered upon the motion of either the plaintiff or the defendant under this rule, and the rule applies in an action for declaratory judgment. Bellefonte Underwriters Ins. Co. v. Alfa Aviation, Inc., 61 N.C. App. 544, 300 S.E.2d 877, 1983 N.C. App. LEXIS 2701 (1983), aff'd, 310 N.C. 471 , 312 S.E.2d 426, 1984 N.C. LEXIS 1578 (1984).

The propriety of a summary judgment in an action for a declaratory judgment is governed by the same rules applicable to other actions. Meachan v. Montgomery County Bd. of Educ., 47 N.C. App. 271, 267 S.E.2d 349, 1980 N.C. App. LEXIS 3087 (1980); North Carolina Life & Accident & Health Ins. Guar. Ass'n v. Underwriters Nat'l Assurance Co., 48 N.C. App. 508, 269 S.E.2d 688, 1980 N.C. App. LEXIS 3257 (1980), cert. denied, 301 N.C. 527 , 273 S.E.2d 453, 1980 N.C. LEXIS 1592 (1980), rev'd, 455 U.S. 691, 102 S. Ct. 1357, 71 L. Ed. 2d 558, 1982 U.S. LEXIS 88 (1982).

Summary judgment can be appropriate in an action for a declaratory judgment where there is no genuine issue of material fact and one of the parties is entitled to judgment as a matter of law. North Carolina Ass'n of ABC Bds. v. Hunt, 76 N.C. App. 290, 332 S.E.2d 693, 1985 N.C. App. LEXIS 3855 (1985).

Summary judgment is appropriate in a special proceeding under G.S. 136-68 to establish a cartway; where respondents to an action seeking to establish a cartway across their land failed to respond to affidavits by petitioners establishing their right to the cartway, the petitioners were granted partial summary judgment on the establishment of the right to a permanent cartway, but the action was remanded for a jury determination of the path of the cartway and the damages to be paid to respondents. Greene v. Garner, 163 N.C. App. 142, 592 S.E.2d 589, 2004 N.C. App. LEXIS 294 (2004).

Summary Judgment on a Claim for Damages. —

Summary judgment on a claim for damages is appropriate where the moving party sufficiently establishes by competent documents that a liquidated amount is owing him and the opposing party fails to show facts which dispute that evidence. In such a case there is no triable issue of fact concerning damages due the moving party. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978).

No prohibition exists as to granting summary judgment on the issue of damages where there is no genuine issue of material fact as to those damages. Sylva Shops, Ltd. P'ship v. Hibbard, 175 N.C. App. 423, 623 S.E.2d 785, 2006 N.C. App. LEXIS 181 (2006).

Summary judgment is rarely appropriate in a negligence action. Barnes v. Wilson Hdwe. Co., 77 N.C. App. 773, 336 S.E.2d 457, 1985 N.C. App. LEXIS 4376 (1985); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985); White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

Summary judgment should rarely be granted in negligence cases. Moore v. Crumpton, 306 N.C. 618 , 295 S.E.2d 436, 1982 N.C. LEXIS 1550 (1982).

Negligence claims are rarely susceptible of summary adjudication, and should ordinarily be resolved by trial of the issues. Lamb v. Wedgewood S. Corp., 308 N.C. 419 , 302 S.E.2d 868, 1983 N.C. LEXIS 1213 (1983).

Although summary judgment is seldom granted in negligence cases, it may be granted where the evidence shows a lack of any negligence on the part of the defendant. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Summary judgment may be granted in a negligence action even though summary judgment is seldom appropriate in a negligence case where there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence. Lavelle v. Schultz, 120 N.C. App. 857, 463 S.E.2d 567, 1995 N.C. App. LEXIS 932 (1995).

To survive a defendant’s motion for summary judgment in a negligence action, a plaintiff must set forth a prima facie case (1) that the defendant failed to exercise proper care in the performance of a duty owed the plaintiff; (2) that the negligent breach of that duty was a proximate cause of the plaintiff’s injury; and (3) that a person of ordinary prudence should have foreseen that the plaintiff’s injury was probable under the circ*mstances. While summary judgment is normally not appropriate in negligence actions, where the forecast of evidence shows that a plaintiff cannot establish one of these required elements, summary judgment is appropriate. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Although the issue of contributory negligence was often not appropriate for summary judgment, the investors contributory negligence in neither reviewing nor requesting financial data before purchasing stock allegedly recommended by the attorney in two corporations, along with their signing of an investment letter stating that the decision to purchase the stock was not based on any representation as to the stock’s likely performance but instead was based on the investors’ independent examination and judgment of the company’s prospects when it was not, so clearly established the investors’ contributory negligence that no other reasonable conclusion could be reached that their contributory negligence barred their negligence claims against the attorney. Hahne v. Hanzel, 161 N.C. App. 494, 588 S.E.2d 915, 2003 N.C. App. LEXIS 2182 (2003).

Or Where Contributory Negligence Is Involved. —

Like negligence, contributory negligence is rarely appropriate for summary judgment. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978); Branks v. Kern, 83 N.C. App. 32, 348 S.E.2d 815, 1986 N.C. App. LEXIS 2632 (1986), rev'd, 320 N.C. 621 , 359 S.E.2d 780, 1987 N.C. LEXIS 2372 (1987).

Summary judgment, under G.S. 1A-1 , N.C. R. Civ. P. 56(c), dismissing a prospective employee’s negligence claim against a prospective employer for injuries received during a pre-employment interview was proper, as the employer owed the employee no duty of care, because the injuries were the result of the employee’s failure to observe the open and obvious condition of where certain safety devices were placed. Huntley v. Howard Lisk Co., 154 N.C. App. 698, 573 S.E.2d 233, 2002 N.C. App. LEXIS 1528 (2002).

And Ordinarily Negligence Actions Should Be Resolved by Trial. —

As a general proposition issues of negligence are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E.2d 62, 1973 N.C. App. LEXIS 1403 (1973); Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979); Moye v. Thrifty Gas Co., 40 N.C. App. 310, 252 S.E.2d 837, 1979 N.C. App. LEXIS 2251 , cert. denied, 297 N.C. 611 , 257 S.E.2d 219, 1979 N.C. LEXIS 1503 (1979); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Hockaday v. Morse, 57 N.C. App. 109, 290 S.E.2d 763, 1982 N.C. App. LEXIS 2601 (1982); Roberson v. Griffeth, 57 N.C. App. 227, 291 S.E.2d 347, 1982 N.C. App. LEXIS 2642 (1982); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982).

Negligence issues are not ordinarily susceptible to summary disposition. However, where there is no genuine issue of material fact and reasonable men could only concede the defendant was not negligent, then a motion for summary judgment is proper. Boza v. Schiebel, 65 N.C. App. 151, 308 S.E.2d 510, 1983 N.C. App. LEXIS 3395 (1983).

Issues of negligence should ordinarily be resolved by a jury and are rarely appropriate for summary judgment. Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116, 1985 N.C. App. LEXIS 4375 (1985).

There is a presumption against granting summary judgment in negligence cases. Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983).

Only in exceptional cases involving the question of negligence or reasonable care will summary judgment be appropriate to resolve the controversy. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979); Emerson v. Great Atl. & Pac. Tea Co., 41 N.C. App. 715, 255 S.E.2d 768, 1979 N.C. App. LEXIS 2731 (1979); Letchworth v. Town of Ayden, 44 N.C. App. 1, 260 S.E.2d 143, 1979 N.C. App. LEXIS 3163 (1979), cert. denied, 299 N.C. 331 , 265 S.E.2d 396, 1980 N.C. LEXIS 1014 (1980).

As it is usually the jury’s prerogative to apply the standard of reasonable care in a negligence action, and in such actions summary judgment is, therefore, appropriate only in exceptional cases where the movant shows that one or more of the essential elements of the claim do not appear in the pleadings or proof at the discovery stage of the proceedings. Ziglar v. E.I. Du Pont De Nemours & Co., 53 N.C. App. 147, 280 S.E.2d 510, 1981 N.C. App. LEXIS 2579 , cert. denied, 304 N.C. 393 , 285 S.E.2d 838, 1981 N.C. LEXIS 1506 (1981).

It is only in the exceptional negligence case that this rule should be invoked. Even in a case in which there is no substantial dispute as to what occurred, it usually remains for the jury, under appropriate instructions from the court, to apply the standard of the reasonably prudent man to the facts of the case. Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E.2d 62, 1973 N.C. App. LEXIS 1403 (1973); Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834, 1976 N.C. App. LEXIS 2632 (1976); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411, 1976 N.C. App. LEXIS 2188 , cert. denied, 290 N.C. 776 , 229 S.E.2d 32, 1976 N.C. LEXIS 1192 (1976); Edwards v. Means, 36 N.C. App. 122, 243 S.E.2d 161, 1978 N.C. App. LEXIS 2416 , cert. denied, 295 N.C. 260 , 245 S.E.2d 777, 1978 N.C. LEXIS 992 (1978); Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978); Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979); Johnson v. Lockman, 41 N.C. App. 54, 254 S.E.2d 187, 1979 N.C. App. LEXIS 2370 , cert. denied, 297 N.C. 610 , 257 S.E.2d 436, 1979 N.C. LEXIS 1498 (1979); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E.2d 28, 1980 N.C. App. LEXIS 2940 (1980); Arey v. Board of Light & Water Comm'n, 50 N.C. App. 505, 274 S.E.2d 268, 1981 N.C. App. LEXIS 2145 (1981); Hockaday v. Morse, 57 N.C. App. 109, 290 S.E.2d 763, 1982 N.C. App. LEXIS 2601 (1982); Roberson v. Griffeth, 57 N.C. App. 227, 291 S.E.2d 347, 1982 N.C. App. LEXIS 2642 (1982); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982); Derrick v. Ray, 61 N.C. App. 218, 300 S.E.2d 721, 1983 N.C. App. LEXIS 2652 (1983); Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment will not usually be feasible in negligence cases where the standard of the prudent man must be applied. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972); Brawley v. Heymann, 16 N.C. App. 125, 191 S.E.2d 366, 1972 N.C. App. LEXIS 1653 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 976 (1972); Forte v. Dillard Paper Co., 35 N.C. App. 340, 241 S.E.2d 394, 1978 N.C. App. LEXIS 2968 , cert. denied, 295 N.C. 89 , 244 S.E.2d 258, 1978 N.C. LEXIS 954 (1978); Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980).

The propriety of summary judgment does not always revolve around the elusive distinction between questions of fact and law. Although there may be no question of fact, when the facts are such that reasonable men could differ on the issue of negligence, courts have generally considered summary judgment improper. Gladstein v. South Square Assocs., 39 N.C. App. 171, 249 S.E.2d 827, 1978 N.C. App. LEXIS 2352 (1978), cert. denied, 296 N.C. 736 , 254 S.E.2d 178, 1979 N.C. LEXIS 1277 (1979).

When the facts are such that reasonable men could differ on the issue of negligence, courts have generally considered summary judgment improper. Derrick v. Ray, 61 N.C. App. 218, 300 S.E.2d 721, 1983 N.C. App. LEXIS 2652 (1983).

Summary judgment is rarely appropriate in negligence actions because ordinarily it is the duty of the jury to apply the standard of care of a reasonably prudent person. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).

The stringent requirements placed on a movant are intended, because summary judgment is a drastic measure, and it should be used with caution. This is especially true in a negligence case in which a jury ordinarily applies the reasonable person standard to the facts of each case. McCullough v. AMOCO Oil Co., 64 N.C. App. 312, 307 S.E.2d 208, 1983 N.C. App. LEXIS 3267 (1983), rev'd, 310 N.C. 452 , 312 S.E.2d 417, 1984 N.C. LEXIS 1577 (1984).

It is an accepted tenet of jurisprudence that summary judgment is rarely proper in negligence cases. Even where there is no dispute as to the essential facts, where reasonable people could differ with respect to whether a party acted with reasonable care, it ordinarily remains the province of the jury to apply the reasonable person standard. But where there is no genuine issue of material fact and reasonable men could only conclude that the defendant was not negligent, entry of summary judgment is proper. Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Wilson Bros. v. Mobile Oil, 63 N.C. App. 334, 305 S.E.2d 40, 1983 N.C. App. LEXIS 3058 (1983).

Ordinarily, summary judgment is not appropriate in negligence actions because the right of recovery usually depends on the application of the reasonable person standard of care. Only the jury, under instructions from the court, may apply that standard. Holley v. Burroughs Wellcome Co., 74 N.C. App. 736, 330 S.E.2d 228, 1985 N.C. App. LEXIS 3574 (1985), aff'd, 318 N.C. 352 , 348 S.E.2d 772, 1986 N.C. LEXIS 2651 (1986).

Summary judgment is rarely appropriate in negligence cases, even when there is no dispute as to the facts, because the issue of whether a party acted in conformity with the reasonable person standard is ordinarily an issue to be determined by a jury. Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986).

If the pleadings establish the existence of a cause of action, summary judgment should be granted cautiously in negligence cases, in which the jury ordinarily applies a standard of care to the facts of the case. Coleman v. Cooper, 89 N.C. App. 188, 366 S.E.2d 2, 1988 N.C. App. LEXIS 281 (1988).

Summary judgment may be granted in a negligence action. Cole v. Duke Power Co., 68 N.C. App. 159, 314 S.E.2d 808, 1984 N.C. App. LEXIS 3185 (1984).

And when the facts in a negligence action are admitted or established, negligence is a question of law and the court must say whether it does or does not exist. Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973).

When Summary Judgment for Defendant Is Proper in Negligence Action. —

Summary judgment for defendant in a negligence action is proper where the evidence fails to show negligence on the part of defendant, or where contributory negligence on the part of plaintiff is established, or where it is established that the purported negligence of defendant was not the proximate cause of plaintiff ’s injury. Hale v. Duke Power Co., 40 N.C. App. 202, 252 S.E.2d 265, 1979 N.C. App. LEXIS 2613 , cert. denied, 297 N.C. 452 , 256 S.E.2d 805, 1979 N.C. LEXIS 1436 (1979); Stansfield v. Mahowsky, 46 N.C. App. 829, 266 S.E.2d 28, 1980 N.C. App. LEXIS 2940 (1980); Edwards v. Akion, 52 N.C. App. 688, 279 S.E.2d 894, 1981 N.C. App. LEXIS 2542 , aff'd, 304 N.C. 585 , 284 S.E.2d 518, 1981 N.C. LEXIS 1370 (1981); Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Summary judgment is proper in negligence cases where it appears that there can be no recovery even if the facts as claimed by plaintiff are true. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Joyce v. City of High Point, 30 N.C. App. 346, 226 S.E.2d 856, 1976 N.C. App. LEXIS 2251 (1976); Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980); Long v. Southern Bell Tel. & Tel. Co., 53 N.C. App. 110, 280 S.E.2d 3, 1981 N.C. App. LEXIS 2518 (1981); Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984); O'Connor v. Corbett Lumber Corp., 84 N.C. App. 178, 352 S.E.2d 267, 1987 N.C. App. LEXIS 2478 (1987); Jacobs v. Hill's Food Stores, Inc., 88 N.C. App. 730, 364 S.E.2d 692, 1988 N.C. App. LEXIS 210 (1988).

Where motion for summary judgment is supported by evidentiary matter showing a lack of negligence on the part of the movants and there is no question as to the credibility of the witnesses and no evidence is offered in opposition thereto, no issue is raised for the jury to consider under appropriate instructions. Moore v. Fieldcrest Mills, Inc., 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979).

Although issues of negligence and contributory negligence are rarely appropriate for summary judgment, where the uncontroverted evidence indicated that plaintiff failed to use ordinary care and that want of due care was at least one of the proximate causes of the fall at issue, and plaintiff was contributorily negligent as a matter of law, summary judgment in favor of defendants was proper. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889, 1982 N.C. App. LEXIS 2686 (1982).

While summary judgment is generally not appropriate in negligence cases, it is appropriate in cases in which it appears that the plaintiff cannot recover even if the facts as alleged by the plaintiff are true. Stoltz v. Burton, 69 N.C. App. 231, 316 S.E.2d 646, 1984 N.C. App. LEXIS 3385 (1984).

Where it is clearly established that defendant’s negligence was not the proximate cause of plaintiff’s injury, summary judgment is appropriate. Southern Watch Supply Co. v. Regal Chrysler-Plymouth, Inc., 69 N.C. App. 164, 316 S.E.2d 318, 1984 N.C. App. LEXIS 3390 (1984).

Summary judgment may be granted in a negligence case where there is no question as to the credibility of witnesses and the evidence shows either (1) a lack of any negligence on the part of the defendant, or (2) that plaintiff was contributorily negligent as a matter of law. Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129, 1986 N.C. App. LEXIS 1963 (1986).

As a general rule, summary judgment is not appropriate where issues of negligence are involved. However, if the evidentiary forecasts establish either a lack of any conduct on the part of the movant which could constitute negligence, or the existence, as a matter of law, of a complete defense to the claim, summary judgment may be properly allowed. Sink v. Andrews, 81 N.C. App. 594, 344 S.E.2d 831, 1986 N.C. App. LEXIS 2340 (1986).

Summary judgment is appropriate in a negligence case if it is established that the alleged negligence of a defendant was not the proximate cause of a plaintiff’s injury. Street v. Moffitt, 84 N.C. App. 138, 351 S.E.2d 821, 1987 N.C. App. LEXIS 2465 (1987).

Alleged tortfeasor was entitled to summary judgment, as there was no evidence that his driving while under the influence proximately caused the accident; the tortfeasor, who was under the legal blood-alcohol limit, had not violated any rules of the road. Efird v. Hubbard, 151 N.C. App. 577, 565 S.E.2d 713, 2002 N.C. App. LEXIS 753 (2002).

Summary judgment based on res judicata in a negligence action was proper in favor of third-party defendants/contractors but not in favor of third-party defendant/Department of Transportation, where the court had reversed the final judgment for the latter defendant in the prior case. Green v. Dixon, 137 N.C. App. 305, 528 S.E.2d 51, 2000 N.C. App. LEXIS 333 , aff'd, 352 N.C. 666 , 535 S.E.2d 356, 2000 N.C. LEXIS 742 (2000).

A premises owner is entitled to summary judgment in a slip and fall case if it can show either the non-existence of an essential element of the plaintiff’s claim or that the plaintiff has no evidence of an essential element of her claim. Nourse v. Food Lion, Inc., 127 N.C. App. 235, 488 S.E.2d 608, 1997 N.C. App. LEXIS 800 (1997), aff'd, 347 N.C. 666 , 496 S.E.2d 379, 1998 N.C. LEXIS 111 (1998).

Wrongful Death Actions. —

Trial court properly granted summary judgment to employee’s of a school in a wrongful death action filed by the mother of a child who died after suffering a heat stroke during a football practice; the sworn evidence of record showed that no genuine issue of material fact existed regarding the employees’ breach of any duty toward the child. Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 208, 580 S.E.2d 732, 2003 N.C. App. LEXIS 1047 (2003), aff'd, 358 N.C. 131 , 591 S.E.2d 521, 2004 N.C. LEXIS 11 (2004).

Summary judgment dismissal of claims against a board of education for the alleged wrongful death of a football player was proper since all of the personal representative’s claims against the board were purely derivative of claims against the board’s individual employees and those claims against the individual employees were previously dismissed on the merits. Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 464, 602 S.E.2d 721, 2004 N.C. App. LEXIS 1785 (2004).

Ordinarily discovery is required prior to granting summary judgment in a medical malpractice suit so that the party can explore issues of malpractice. Easter v. Lexington Mem. Hosp., 49 N.C. App. 398, 271 S.E.2d 545, 1980 N.C. App. LEXIS 3395 (1980), rev'd, 303 N.C. 303 , 278 S.E.2d 253, 1981 N.C. LEXIS 1095 (1981).

The inference created by res ipsa loquitur will defeat a motion for summary judgment even though the defendant presents evidence tending to establish absence of negligence. The burden of proving negligence, however, remains with the plaintiff; accordingly, the finder of fact may reject the permissible inference of negligence even though the defendant presents no evidence. Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116, 1985 N.C. App. LEXIS 4375 (1985).

For discussion of application of res ipsa loquitur in medical malpractice actions, see Schaffner v. Cumberland County Hosp. Sys., 77 N.C. App. 689, 336 S.E.2d 116, 1985 N.C. App. LEXIS 4375 (1985).

Summary Judgment Upheld in Medical Malpractice Action. —

Inmate who sued a sheriff and various medical providers, alleging medical malpractice and negligence, did not show excusable neglect for failing to designate his expert witnesses by the date specified in the trial court’s order, and because the trial court properly denied the inmate’s motion for an extension of time to designate his expert witnesses, and his forecast of evidence could not include a designation of witnesses, the trial court’s order granting summary judgment in favor of all defendants was upheld. Summey v. Barker, 357 N.C. 492 , 586 S.E.2d 247, 2003 N.C. LEXIS 1105 (2003).

Summary judgment is generally inappropriate in an action for fraud, as the existence of fraud necessarily involves a question concerning the existence of fraudulent intent, and the intent of a party is a state of mind generally within the exclusive knowledge of that party which must, by necessity, must be proved by circ*mstantial evidence. Girard Trust Bank v. Belk, 41 N.C. App. 328, 255 S.E.2d 430, 1979 N.C. App. LEXIS 2690 , cert. denied, 298 N.C. 293 , 259 S.E.2d 299 (1979).

Allegations of fraud do not readily lend themselves to resolution by way of summary judgment, because a cause of action based on fraud usually requires the determination of a litigant’s state of mind. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

But Fraud May Be Summarily Adjudicated When Absence of Genuine Issue Is Clearly Established. —

Summary judgment is inappropriate in a fraud case where the court is called upon to draw a factual inference in favor of the moving party, or where the court is called upon to resolve a genuine issue of credibility, but the issue of fraud may be summarily adjudicated when it is clearly established that there is no genuine issue of material fact. Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

In order for defendant in an action for fraud to prevail on its motion for summary judgment, he must show that evidence of one or more of the elements of fraud is unavailable to plaintiff. Johnson v. Phoenix Mut. Life Ins. Co., 44 N.C. App. 210, 261 S.E.2d 135, 1979 N.C. App. LEXIS 3264 (1979), rev'd, 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980).

If the defendant moving for summary judgment in a fraud case presents material evidence which effectively negates even one of the essential elements of fraud, summary judgment in defendant’s favor should be allowed. It is not necessary that defendant’s material evidence negate all of the essential elements. Russo v. Mountain High, Inc., 38 N.C. App. 159, 247 S.E.2d 654, 1978 N.C. App. LEXIS 2122 (1978); Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

In a claim for relief based on fraud, summary judgment for defendant is proper where the forecast of evidence shows that even one of the essential elements of fraud is missing. Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 337 S.E.2d 639, 1985 N.C. App. LEXIS 4285 (1985), cert. denied, 317 N.C. 341 , 346 S.E.2d 149, 1986 N.C. LEXIS 2342 (1986).

To overcome defendant’s motion for summary judgment in an action alleging fraud, breach of contract, and unfair trade practices, plaintiff needed only to forecast evidence: (1) that defendant made a definite and specific representation to her that was materially false; (2) that defendant made the representation with knowledge of its falsity; and (3) that plaintiff reasonably relied on the representation to her detriment. Kent v. Humphries, 50 N.C. App. 580, 275 S.E.2d 176, 1981 N.C. App. LEXIS 2159 , aff'd in part, modified, 303 N.C. 675 , 281 S.E.2d 43, 1981 N.C. LEXIS 1203 (1981).

Libel Action by Public Figure. —

When a libel action brought by a public figure is at the summary judgment stage, the appropriate question for the trial judge is whether the evidence in the record would allow a reasonable finder of fact to find either that the plaintiff has shown actual malice by clear and convincing evidence or that the plaintiff has not. Proffitt v. Greensboro News & Record, Inc., 91 N.C. App. 218, 371 S.E.2d 292, 1988 N.C. App. LEXIS 814 (1988).

Summary judgment in a libel action is not favored where proof of actual malice is required of the plaintiff. Cochran v. Piedmont Publishing Co., 62 N.C. App. 548, 302 S.E.2d 903, 1983 N.C. App. LEXIS 2946 (1983), cert. denied, 469 U.S. 816, 105 S. Ct. 83, 83 L. Ed. 2d 30, 1984 U.S. LEXIS 3052 (1984).

Falsely Reporting Child Abuse and Neglect. —

Where plaintiff alleged that the defendant store clerk made false accusations of child abuse and neglect and injury, and forecast evidence that the defendant knew the report to be false, a genuine issue of material fact existed — particularly as to whether the defendant acted with malice and therefore lost the immunity accorded by former G.S. 7A-550 — to withstand summary judgment in a slander per se cause of action; however, summary judgment was appropriately granted in favor of defendant store where, if actual malice was proven, the defendant store clerk acted outside the scope of her employment. Dobson v. Harris, 134 N.C. App. 573, 521 S.E.2d 710, 1999 N.C. App. LEXIS 894 (1999), rev'd, 352 N.C. 77 , 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

Legal Malpractice Action. —

For a discussion of the standard for granting summary judgment in a legal malpractice action, see Bamberger v. Bernholz, 96 N.C. App. 555, 386 S.E.2d 450, 1989 N.C. App. LEXIS 1115 (1989), rev'd, 326 N.C. 589 , 391 S.E.2d 192, 1990 N.C. LEXIS 232 (1990).

Termination of Parental Rights. —

Article 24B of Chapter 7A (former G.S. 7A-289.22 et seq.) does not provide for a summary proceeding to determine whether the petitioner has proven the existence of one or more of the grounds for termination. Thus, the trial court erred in granting petitioners’ motion for partial summary judgment. Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917, 1991 N.C. App. LEXIS 1091 (1991).

A summary judgment may not be entered granting an absolute divorce in this State. Edwards v. Edwards, 42 N.C. App. 301, 256 S.E.2d 728, 1979 N.C. App. LEXIS 2835 (1979).

Raising of Affirmative Defenses on Motion. —

The nature of summary judgment procedure, coupled with the generally liberal rules relating to amendment of pleadings, requires that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on a motion for summary judgment. Cooke v. Cooke, 34 N.C. App. 124, 237 S.E.2d 323, 1977 N.C. App. LEXIS 1593 , cert. denied, 293 N.C. 740 , 241 S.E.2d 513, 1977 N.C. LEXIS 1024 (1977); Ridings v. Ridings, 55 N.C. App. 630, 286 S.E.2d 614, 1982 N.C. App. LEXIS 2250 (1982).

If an affirmative defense required to be raised by a responsive pleading is sought to be raised for the first time in a motion for summary judgment, the motion must ordinarily refer expressly to the affirmative defense relied upon. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981).

Defense of laches may be properly raised by summary judgment motion. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978).

As May Statute of Frauds. —

While the statute of frauds is an affirmative defense which ordinarily must be pleaded, for the purpose of ruling on a motion for summary judgment, an affirmative defense may be raised for the first time by affidavit. Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702, 1980 N.C. App. LEXIS 2979 (1980).

Expiration of Statute of Repose. —

Whether a statute of repose has expired is strictly a legal issue, and where the pleadings and proof show without contradiction that the statute has expired, then summary judgment may be granted. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566, 1986 N.C. App. LEXIS 2321 (1986).

Summary judgment is an appropriate means of raising the defense of a statute of limitation if the statute is properly before the court. Baucom's Nursery Co. v. Mecklenburg County, 89 N.C. App. 542, 366 S.E.2d 558, 1988 N.C. App. LEXIS 261 (1988).

Assignments. —

Generally, the interpretation of an assignment is governed by rules applicable to the interpretation of a contract. If there is no ambiguity regarding the subject matter of the assignment, the plaintiff ’s intent can be interpreted without resort to extrinsic evidence and summary judgment may be appropriate. Martin v. Ray Lackey Enters., Inc., 100 N.C. App. 349, 396 S.E.2d 327, 1990 N.C. App. LEXIS 986 (1990).

Shareholders’ Derivative Actions. —

For a case discussing interplay of rules and statutes governing procedure and discovery in shareholders’ derivative action, particularly with respect to former G.S. 55-55(c) (see now G.S. 55-7-40 ), this rule, and G.S. 1A-1 , Rules 12 and 23, see Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Lack of Verification Pursuant to G.S. 1A-1 , Rule 23(b). —

Because the verification requirement in G.S. 1A-1 , Rule 23(b) is not jurisdictional in nature, where the purposes behind the rule have been fulfilled by the time the objection to a defective or absent verification is lodged, dismissal or summary judgment in favor of defendants is not appropriate. Alford v. Shaw, 327 N.C. 526 , 398 S.E.2d 445, 1990 N.C. LEXIS 1009 (1990).

Actions Against Counties and Municipalities. —

County waived sovereign immunity to the extent that an insurance policy it purchased covered negligent acts committed by emergency medical technicians (EMTs) who worked for the county, and the trial court erred by dismissing a lawsuit which claimed that a person died because EMTs employed by the county were negligent. Dawes v. Nash County, 357 N.C. 442 , 584 S.E.2d 760, 2003 N.C. LEXIS 829 (2003).

Condemnation Proceedings. —

In condemnation proceeding brought pursuant to city’s power of eminent domain under G.S. 160A-240.1 , partial summary judgment was properly granted precluding property owners from recovering for diminution in value caused by the city’s construction of a median restricting access to lanes in only one direction of travel; the separation of lanes of traffic was an exercise of police power, and the means used to accomplish the legitimate objective were reasonable in light of the fact that the owners still had free ingress and egress to their property, and injury to property caused by such an exercise of police power was not compensable. City of Concord v. Stafford, 173 N.C. App. 201, 618 S.E.2d 276, 2005 N.C. App. LEXIS 1915 (2005).

Court Properly Granted Summary Judgment to an Executor Where No Evidence of Lack of Testamentary Capacity. —

Although a trial court properly granted summary judgment to an executor where there was no evidence of a lack of testamentary capacity, the trial court erred in finding estoppel and no undue influence; a caveator showed that the caveator would have received a bequest in any event and that there were genuine issues of material fact relating to undue influence. In re Will of Smith, 158 N.C. App. 722, 582 S.E.2d 356, 2003 N.C. App. LEXIS 1229 (2003).

C.Cases in Which Summary Judgment Held Proper

Declaratory Judgment. —

Summary judgment was proper in an action seeking a declaratory judgment as to the validity of a zoning ordinance where there was no substantial controversy as to the facts disclosed by the evidence, but the controversy involved the legal significance of those facts. Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); Taylor v. Taylor, 45 N.C. App. 449, 263 S.E.2d 351, 1980 N.C. App. LEXIS 2670 , rev'd, 301 N.C. 357 , 271 S.E.2d 506, 1980 N.C. LEXIS 1164 (1980).

Summary judgment was proper in case involving a determination of prior jurisdiction between two towns’ competing resolutions of intent where one municipality had sought to involuntarily annex two acres within the boundaries of the other. Town of Spencer v. Town of E. Spencer, 351 N.C. 124 , 522 S.E.2d 297, 1999 N.C. LEXIS 1255 (1999).

Condominium association was properly granted summary judgment on a declaratory judgment action given the rejection of the developer’s arguments as to its ability to retain ownership of the disputed areas as inconsistent with the North Carolina Condominium Act. Residences at Biltmore Condo. Owners' Ass'n v. Power Dev., LLC, 243 N.C. App. 711, 778 S.E.2d 467, 2015 N.C. App. LEXIS 892 (2015).

Declaratory Judgment Action Challenging the Denial of a Rezoning Application. —

Trial court properly granted summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56 to a city in property owners’ declaratory judgment action pursuant to G.S. 1-253 , challenging a denial of an application to rezone property; a city council’s finding that the rezoning would lead to further traffic congestion in the area had a plausible basis, and that the decision had a basis in reason and bore a substantial relation to public safety. Ashby v. Town of Cary, 161 N.C. App. 499, 588 S.E.2d 572, 2003 N.C. App. LEXIS 2199 (2003).

Sovereign Immunity. —

Trial court properly granted the county summary judgment on the tort claims brought by a volunteer treasurer of a nonprofit emergency medical services provider where the county’s decisions to assume operational control of the provider after its board resolved to cease operations and transfer the provider’s vehicles were discretionary decisions satisfying its statutorily delegated responsibilities, and thus, the county had shown that governmental immunity barred the tort claims. Fuller v. Wake Cty., 254 N.C. App. 32, 802 S.E.2d 106, 2017 N.C. App. LEXIS 459 (2017).

Issue of Punitive Damages Was Appropriate for Ruling in a Second Summary Judgment Motion. —

Trial court properly granted defendants’ summary judgment motion pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56 in a medical malpractice action as to the issue punitive damages, because the issue of punitive damages was not mentioned in an initial summary judgment motion decided by a different judge, and was thus appropriate for ruling in the second motion. Fox v. Green, 161 N.C. App. 460, 588 S.E.2d 899, 2003 N.C. App. LEXIS 2193 (2003).

In a declaratory judgment action challenging a city’s condemnation proceeding for expansion of the city’s sewer system, a judgment for the city that was essentially a grant of summary judgment was proper because the intended use of the condemnation satisfied the public use and public benefit test as all city residents, including the landowners whose property was being condemned, would have the equal right to connect to the expanded sewer system, which was an essential service. Tucker v. City of Kannapolis, 159 N.C. App. 174, 582 S.E.2d 697, 2003 N.C. App. LEXIS 1442 (2003).

In the declaratory judgment action, the trial court properly granted partial summary judgment pursuant to G.S. 1A-1 , Rule 56, in favor of the estate administrator on the issue as to whether the airport insurance policies issued by the insurer provided coverage to the corporations if the corporations were to be found liable; coverage of the corporations was not excluded as the plane that crashed was not owned by, rented by, or loaned to the corporations, and the plane was in flight for the account of its owner, not the corporations. Carlson v. Old Republic Ins. Co., 160 N.C. App. 399, 585 S.E.2d 497, 2003 N.C. App. LEXIS 1796 (2003).

When a deceased child’s mother filed a declaratory judgment action against the child’s father, seeking a determination of the parties’ rights to share in the child’s estate, including the proceeds of a wrongful death suit on the child’s behalf, under G.S. 31A-2 , because the father did not support or communicate with the child from age four until almost age 20, the mother’s summary judgment motion, under G.S. 1A-1 , Rule 56, was properly granted because, while the father resumed support of and contact with the child before the child’s death, support had to be resumed at least one year before the end of the father’s legal obligation to support the child, which ended at age 18, to apply the exception to G.S. 31A-2 ’s preclusion, found in G.S. 31A-2(1), so that exception did not apply to the father. McKinney v. Richitelli, 357 N.C. 483 , 586 S.E.2d 258, 2003 N.C. LEXIS 1097 (2003).

Ruling Simultaneous to Class Certification. —

Trial court did not err in granting summary judgment prior to ruling on the credit cardholder’s pending motion for class certification because the parties had stipulated that both motions could be considered simultaneously. Gaynoe v. First Union Corp., 153 N.C. App. 750, 571 S.E.2d 24, 2002 N.C. App. LEXIS 1259 (2002).

Trial court did not err in declaring that a county ordinance that pertained to employment discrimination and its enabling statute, G.S. 160A-492 , were unconstitutional acts because they violated the provisions of N.C. Const. art. II, § 24(1)(j); thus, summary judgment in favor of employer was proper. Williams v. Blue Cross Blue Shield, 357 N.C. 170 , 581 S.E.2d 415, 2003 N.C. LEXIS 595 (2003).

Trial court properly granted summary judgment to a retailer in its declaratory judgment action against a tenant, the landlord, and the landlord’s successor in interest because, while a restrictive covenant in a deed between the retailer and the landlord created a real covenant running with the land transferred in the deed and barred the retailer’s use of that tract of land for a grocery store, the trial court correctly determined that the restrictive covenant did not impose upon the retailer the five-mile radius restriction to which the landlord earlier agreed in a negotiated commercial lease with the tenant. Wal-Mart Stores, Inc. v. Ingles Mkts., Inc., 158 N.C. App. 414, 581 S.E.2d 111, 2003 N.C. App. LEXIS 1175 (2003).

Contributory Negligence in Use of Steps. —

Although issues of negligence and contributory negligence are rarely appropriate for summary judgment, where the uncontroverted evidence indicated that plaintiff failed to use ordinary care and that want of due care was at least one of the proximate causes of the fall at issue, her use of steps rendered her contributorily negligent as a matter of law, making summary judgment in favor of defendants proper. Brooks v. Francis, 57 N.C. App. 556, 291 S.E.2d 889, 1982 N.C. App. LEXIS 2686 (1982).

Summary judgment was appropriate where defendants set forth no specific facts to support their allegation that the plaintiff represented to them that their loans would be refinanced. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

Contributory Negligence in a Fast Food Restaurant. —

Summary judgment was appropriate although defendant may have been negligent in placing the platform over which plaintiff fell so that it was partially hidden by a counter overhang, where plaintiff admitted that she saw the structure before she tripped over it and that she was not distracted by any action of defendant. Allsup v. McVille, Inc., 139 N.C. App. 415, 533 S.E.2d 823, 2000 N.C. App. LEXIS 905 (2000), aff'd, 353 N.C. 359 , 543 S.E.2d 476, 2001 N.C. LEXIS 261 (2001).

Contributory Negligence in Construction. —

Where injured subcontractor’s employee knew that holes left by refrigeration installer remained in flooring, but failed to take precautions and lock scaffold’s wheels in place prior to beginning the day’s work of installing ceiling tiles, he was contributorily negligent as a matter of law; gross negligence was not present to overcome finding of contributory negligence, and thus summary judgment was proper. Sawyer v. Food Lion, Inc., 144 N.C. App. 398, 549 S.E.2d 867, 2001 N.C. App. LEXIS 429 (2001).

Trial court properly granted summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), to a developer and a construction company in relation to property owners’ claims arising from the installation of allegedly faulty synthetic stucco in a townhouse; considering the indications the owners received that the synthetic stucco was problematic, their failure to engage the services of a qualified inspector to inspect the synthetic stucco before they purchased the townhouse constituted contributory negligence as a matter of law. Swain v. Preston Falls E., L.L.C., 156 N.C. App. 357, 576 S.E.2d 699, 2003 N.C. App. LEXIS 106 (2003).

Contributory Negligence For Building Defects. —

There was insufficient evidence to allow a reasonable mind to conclude the county’s Certificate of Occupancy proximately caused the buyer’s damages, where the buyer proceeded to closing at the urging of the realtor, knowing of home’s defects, and based on the promises of the builder to fix said defects after closing, and summary judgment for the county on the buyer’s negligent inspection claim was also proper because the buyer was contributorily negligent. Eason v. Union County, 160 N.C. App. 388, 585 S.E.2d 452, 2003 N.C. App. LEXIS 1791 (2003).

Alleged Negligence by Subcontractor. —

Subcontractor that was hired by general contractor to install trusses on roofs of two buildings did not have a duty to protect the buildings from rainwater, and the trial court ruled correctly that the subcontractor was entitled to summary judgment on a condominium association’s claim alleging that the subcontractor negligently allowed rainwater to damage buildings the association managed. Finley Forest Condo. Ass'n v. Perry, 163 N.C. App. 735, 594 S.E.2d 227, 2004 N.C. App. LEXIS 570 (2004).

No Genuine Issue as to Inflicted Injury. —

Where plaintiff took advantage of the discovery procedures available and was still unable to obtain evidence as to when and how injury occurred and who or what caused it, and the record did not reveal that any injury in the nature of an inflicted harm occurred, and plaintiff ’s condition could just as well have been from a pathological cause, there was an absence of a showing of a genuine issue as to any material fact and summary judgment was appropriate. Hoover v. Gaston Mem. Hosp., 11 N.C. App. 119, 180 S.E.2d 479, 1971 N.C. App. LEXIS 1462 (1971).

Summary judgment was appropriate where plaintiff’s claim did not meet the test in Woodson v. Rowland, 329 N.C. 330 , 407 S.E.2d 222 (1991), requiring that the plaintiff show that the defendant engaged in misconduct he knew was substantially certain to cause serious injury. Henderson v. Henderson, 121 N.C. App. 752, 468 S.E.2d 454, 1996 N.C. App. LEXIS 129 (1996).

No Genuine Issue of Material Fact Regarding False Statement or Misrepresentation. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim that the owners made a false representation upon which the subcontractor reasonably relied since a genuine issue of material fact did not exist regarding whether an owner made a false statement or misrepresentation about guaranteeing payment. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Affidavit Contained Only General Allegations. —

Summary judgment was appropriate where no issue of fact existed as to the outstanding balance on the respective loans because the defendant’s affidavit contained only general allegations and conclusions, and no specific facts were provided in it as to the dates of any uncredited payments, their amounts, or any other relevant information. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

In an action to recover damages for alleged wrongful suspension or discharge etc. of plaintiff from his employment with defendant, trial court properly entered summary judgment for defendant where defendant’s evidence established that, except for a bargaining agreement, plaintiff ’s contract of employment was for an indefinite period of time, terminable at the will of either party, that defendant suspended plaintiff for cause, and that defendant had the right to do so, conditioned or circ*mscribed only by the provisions of a collective bargaining agreement. Tucker v. General Tel. Co., 50 N.C. App. 112, 272 S.E.2d 911, 1980 N.C. App. LEXIS 3467 (1980).

Summary judgment for defendant was proper in an action alleging wrongful discharge due to a handicapped condition, since plaintiff’s rhinitis was not a “physical impairment” under G.S. 168A-3 because his medical records established that his condition was temporary; nor did his condition render him “handicapped” under G.S. 168A-3 . Simmons v. Chemol Corp., 137 N.C. App. 319, 528 S.E.2d 368, 2000 N.C. App. LEXIS 311 (2000).

In the former deputy sheriff’s retaliatory discharge in violation of G.S. 153A-99 cause of action against the sheriff and the surety, the sheriff and surety were entitled to summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56; the former deputy’s assertion that the former deputy was fired due to the former deputy’s affiliation with the sheriff’s primary election foe was insufficient to establish a nexus between the protected activity and the discharge, because the evidence of the nexus was from the former deputy’s deposition testimony that amounted to mere conjecture. Venable v. Vernon, 162 N.C. App. 702, 592 S.E.2d 256, 2004 N.C. App. LEXIS 250 (2004).

Where the plaintiff sought to be reinstated to the same position, pursuant to 25 N.C.A.C. 1B.0428, defendant/state agency which reinstated plaintiff/employee as an auditor, not chief auditor, but within the same pay grade, was entitled to judgment as a matter of law. Hodge v. North Carolina DOT, 137 N.C. App. 247, 528 S.E.2d 22, 2000 N.C. App. LEXIS 334 , rev'd, 352 N.C. 664 , 535 S.E.2d 32, 2000 N.C. LEXIS 745 (2000).

Action for Sexual Assault or Seduction. —

Summary judgment was appropriate in an action to recover for sexual assault or seduction where the evidence tended to show that plaintiff willingly went to a field with defendant, willingly drank two alcoholic beverages, and remembered nothing until she found herself back in town, but subsequently discovered that she had had intercourse, since there was no evidence that plaintiff feared or even knew that harmful or offensive contact might occur, which was required to show an assault, and since there was no evidence that defendant deceived or enticed plaintiff in any way, which was required to show seduction. McCraney v. Flanagan, 47 N.C. App. 498, 267 S.E.2d 404, 1980 N.C. App. LEXIS 3144 (1980).

Vicarious Alienation of Affection. —

Summary judgment was proper on plaintiff’s alienation of affection claim against defendant moving company which he alleged was vicariously liable where moving company’s field representative’s involvement with plaintiff’s wife was not done in furtherance of the moving company’s business, the agent’s actions were not within the scope of his employment, and the company did not ratify the allegedly wrongful acts. Mercier v. Daniels, 139 N.C. App. 588, 533 S.E.2d 877, 2000 N.C. App. LEXIS 989 (2000).

Animal Attack. —

Summary judgment was properly granted to the cat owners in the victim’s action seeking compensation for injuries caused by the cat, as the victim failed to establish that the cat exhibited vicious propensities in past, or that the owners had any reason to suspect that the cat would attack the victim. Ray v. Young, 154 N.C. App. 492, 572 S.E.2d 216, 2002 N.C. App. LEXIS 1445 (2002).

Where materials presented in support of defendant’s motion for summary judgment showed that plaintiff had suffered no compensable injury or damage, the entry of summary judgment was proper, since there appeared to be no genuine issue as to any material fact. Alltop v. J.C. Penney Co., 10 N.C. App. 692, 179 S.E.2d 885, 1971 N.C. App. LEXIS 1699 , cert. denied, 279 N.C. 348 , 182 S.E.2d 580, 1971 N.C. LEXIS 783 (1971).

Insurance Claim. —

Summary judgment for plaintiff was appropriate where the estate of plaintiff’s son could recover under his parents’ automobile insurance policy although they placed the policy in the name of a piece of property they owned which was incapable of being legally classified as an individual or as an entity, commercial or otherwise, as the insured; the court resolved the ambiguity created by designating a place as the insured in favor of the plaintiff who paid the premiums and obtained the family coverage. Stockton v. North Carolina Farm Bureau Mut. Ins. Co., 139 N.C. App. 196, 532 S.E.2d 566, 2000 N.C. App. LEXIS 799 (2000).

Plaintiffs, whose home burned down just before it was completed, were entitled to summary judgment against defendant insurer where, under the plain language of the policy, plaintiffs were entitled to recover the full limit of liability. Rouse v. Williams Realty Bldg. Co., 143 N.C. App. 67, 544 S.E.2d 609, 2001 N.C. App. LEXIS 219 , aff'd, 354 N.C. 357 , 554 S.E.2d 337, 2001 N.C. LEXIS 1081 (2001).

In an insured’s action against an insurer, summary judgment was properly granted to the insurer because another state’s judgment in a class action against the insurer, which the insured did not opt out of, was entitled to full faith and credit and barred the insured’s action. Freeman v. Pac. Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184, 2003 N.C. App. LEXIS 190 (2003).

When an insured sued an insurer for breach of contract and unfair and deceptive practices for negotiating his premium payment on a life insurance policy and then refunding it, stating that no coverage ever existed, summary judgment was properly granted to the insured, because (1) the insurer’s negotiation of the insured’s payment, after it knew of the insured’s health problems, was inconsistent with enforcing a “good health” provision of the policy and waived that provision, (2) the insurer could not claim accord and satisfaction based on the insured’s negotiation of the refund check, because that negotiation was based on the insurer’s misrepresentation that the insured was never covered, when it knew he was, (3) and this conduct was an unfair and deceptive practice under G.S. 75-1.1 and G.S. 58-63-15(1) . Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 589 S.E.2d 423, 2003 N.C. App. LEXIS 2273 (2003).

Summary judgment was properly granted in favor of the insurer where the husband’s homeowner’s policy for personal liability did not apply to a named insured or insured; the wife was both a named insured and an insured under the policy such that there was no coverage for the injuries that she received from the husband, and there was no reasonable expectation that the insurer would pay costs incurred for a lawsuit for which there was no coverage. N.C. Farm Bureau Mut. Ins. Co. v. Fowler, 162 N.C. App. 100, 589 S.E.2d 911, 2004 N.C. App. LEXIS 55 (2004).

Summary judgment was properly granted in favor of an insurer in a breach of contract action because two insureds admitted there was no breach of an insurance contract by failing to make a timely response to requests for admissions; moreover, the fact that the insureds’ attorney failed to provide the discovery documents to the insureds did not provide a basis for relief from the judgment. Brown v. Foremost Affiliated Ins. Servs., 158 N.C. App. 727, 582 S.E.2d 335, 2003 N.C. App. LEXIS 1222 (2003).

Trial court properly granted summary judgment to an administratrix on her claims against two uninsured motorist insurers because, on the date of the insolvency of the third insurer with whom the administratrix settled following the work related death of her husband, the two uninsured motorist insurers became liable to the administratrix for the unfunded amount of the settlement with the insolvent insurer. Jones v. N.C. Ins. Guaranty Ass'n, 163 N.C. App. 105, 592 S.E.2d 600, 2004 N.C. App. LEXIS 302 (2004).

Insurance company was entitled to summary judgment in homeowners’ action seeking payment under a policy that the company issued to a contractor that built a retaining wall because the policy was not in force when the contractor built the wall and damage which occurred to the wall after water seeped into the ground occurred outside the policy period. Hutchinson v. Nationwide Mut. Fire Ins. Co., 163 N.C. App. 601, 594 S.E.2d 61, 2004 N.C. App. LEXIS 407 (2004).

Release of Tortfeasor in Insurance Claim. —

Insureds were entitled to summary judgment in an insurer’s declaratory judgment action against them to determine the insureds’ rights to pursue underinsured motorist benefits when they released the tortfeasor, because the release was clearly limited to the tortfeasor, and the release did not have to contain a covenant not to enforce judgment or to expressly reserve the insureds’ rights against the insurer. N.C. Farm Bureau Mut. Ins. Co. v. Edwards, 154 N.C. App. 616, 572 S.E.2d 805, 2002 N.C. App. LEXIS 1514 (2002).

Insurance Claim. —

In an insured’s action against an insurer, summary judgment was properly granted to the insurer because another state’s judgment in a class action against the insurer, which the insured did not opt out of, was entitled to full faith and credit and barred the insured’s action. Freeman v. Pac. Life Ins. Co., 156 N.C. App. 583, 577 S.E.2d 184, 2003 N.C. App. LEXIS 190 (2003).

Public duty doctrine did not bar a negligent home inspection claim as the public duty doctrine applied only to law enforcement officers and the county’s purchase of a liability insurance policy covering law officers did not waive sovereign immunity as building inspectors were not officers; thus, summary judgment for the county was proper. Kennedy v. Haywood County, 158 N.C. App. 526, 581 S.E.2d 119, 2003 N.C. App. LEXIS 1174 (2003).

Duty of Insurer to Defend. —

The trial court correctly entered summary judgment for real estate company on the issue of whether insurer had a duty to defend it in an underlying action, where real estate company’s failure to set up a mobile home did not fit under any of the insurer’s contract exclusions, because the real estate company had not completed its work and since one of the exclusions was ambiguous and a reasonable person reading the contract would have understood the contract to cover all ordinary business operations of the company. Lambe Realty Inv., Inc. v. Allstate Ins. Co., 137 N.C. App. 1, 527 S.E.2d 328, 2000 N.C. App. LEXIS 261 (2000).

Summary judgment was properly granted to an insurer in its claim for declaratory judgment wherein it was determined that it had no duty to defend its insured nor any duty to reimburse it for expenses of the insured in defending against a claim by an equipment company for breach of contract and indemnification, because the contract between the insured and the company had been found to be invalid. Pa. Nat'l Mut. Cas. Ins. Co. v. Associated Scaffolders & Equip. Co., 157 N.C. App. 555, 579 S.E.2d 404, 2003 N.C. App. LEXIS 749 (2003).

There was no genuine issue as to any material fact in an action under an airplane insurance policy where defendant insurance company effectively canceled the policy under the terms of the contract by notice to plaintiff insured when plaintiff failed to make premium payments on time and had not waived the right of cancellation by past acceptance of late payments which conformed to the conditions of cancellation, and where tender or refund of the unearned portion of the premium payments was not a condition precedent to cancellation. Klein v. Avemco Ins. Co., 289 N.C. 63 , 220 S.E.2d 595, 1975 N.C. LEXIS 875 (1975).

In an insurance case, the trial court correctly granted summary judgment dismissing an insured’s claim for insurance coverage of a vehicle destroyed by a fire because the vehicle was being prepared for racing and the insurance policy clearly excluded coverage of racing vehicles. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

In an insurance case, the trial court correctly granted summary judgment dismissing an insured’s claim against the bailee of the insured’s vehicle, whose alleged negligence caused a fire which destroyed the vehicle, because the insured attempted to assert that claim as a third-party claim, under G.S. 1A-1 , N.C. R. Civ. P. 14(a), after an insurer answered the insured’s original complaint, effectively amending that complaint without complying with G.S. 1A-1 , N.C. R. Civ. P. 15, which was improper. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

Summary judgment dismissing plaintiff ’s action against defendant insurance company under an uninsured motorists endorsem*nt to a policy was proper where the admitted facts established that at the time the action was instituted a claim for wrongful death was no longer within the coverage provided by the policy. Brown v. Lumbermens Mut. Cas. Co., 19 N.C. App. 391, 199 S.E.2d 42, 1973 N.C. App. LEXIS 1663 (1973), aff'd, 285 N.C. 313 , 204 S.E.2d 829, 1974 N.C. LEXIS 973 (1974).

The trial court properly granted summary judgment in favor of plaintiff-insurer where the pleadings, affidavits, and deposition testimony indicated that defendant’s use of co-defendant’s car constituted “regular use” within the meaning of the insurer’s policies thereby excluding coverage. Nationwide Mut. Ins. Co. v. Walters, 142 N.C. App. 183, 541 S.E.2d 773, 2001 N.C. App. LEXIS 33 (2001).

Change of Beneficiary of Insurance Policy. —

Trial court properly granted summary judgment for wife of decedent/service member who made her the beneficiary of his insurance policy, although he had earlier entered into a child support agreement promising to make the child of his first marriage the beneficiary; federal law and federal regulations bestowed upon the service member an absolute right to designate the policy beneficiary, even in conflict with state law, and the proceeds were not attachable under the federal Servicemember’s Group Life Insurance Act. Lewis v. Estate of Lewis, 137 N.C. App. 112, 527 S.E.2d 340, 2000 N.C. App. LEXIS 250 (2000).

In an action to recover accidental death insurance proceeds, where defendant’s evidentiary matter established that cause of death was heart failure and defendant’s evidence was not contradicted by plaintiff in response to motion for summary judgment, the motion was properly granted. Hicks v. Old Republic Life Ins. Co., 29 N.C. App. 561, 225 S.E.2d 164, 1976 N.C. App. LEXIS 2567 (1976).

Summary judgment was proper under the family purpose doctrine for defendant/father whose son was killed when his automobile collided with plaintiff’s, where father did little more than extend credit to his son by providing him with the purchase price of the car and the son made periodic payments and had actual, exclusive control of it after its purchase. Tart v. Martin, 137 N.C. App. 371, 527 S.E.2d 708, 2000 N.C. App. LEXIS 326 , rev'd, 353 N.C. 252 , 540 S.E.2d 332, 2000 N.C. LEXIS 900 (2000).

Commission Agreement. —

Where defendant’s original contract for the sale of land to a third party was cancelled, and plaintiff submitted no evidentiary materials in opposition to defendant’s motion for summary judgment, plaintiff failed to raise any issue of fact as to the nature of an oral agreement by defendant to pay plaintiff one half of any commissions defendant received, since the right to share in commissions under an agreement between brokers to divide commissions does not arise until the commissions have actually been received by the broker charged with liability; thus, summary judgment was appropriate. Chears v. Robert A. Young & Assocs., 49 N.C. App. 674, 272 S.E.2d 402, 1980 N.C. App. LEXIS 3440 (1980).

Summary judgment was appropriate on plaintiff’s vicarious liability claim where plaintiff submitted an affidavit alleging that the person who tried to repossess her automobile, pushed her to the ground twice and injured her knee but failed to submit any affidavits or other material relating to the question of his status as an independent contractor; none of the evidence before the trial court rebutted the defendant’s claim that he was an independent contractor or supported the plaintiff’s claim that the company should have known of his alleged penchant for aggressive behavior and the likelihood that he would assault plaintiff. Jiggetts v. Lancaster, 138 N.C. App. 546, 531 S.E.2d 851, 2000 N.C. App. LEXIS 630 (2000).

No Property Right in At-Will Employment. —

The trial court erred in failing to grant summary judgment for defendant-state agency where plaintiff, a county extension director, was an employee at-will with no cognizable property right in his employment and, therefore, barred from bringing a due process claim. McCallum v. North Carolina Coop. Extension Serv. of N.C. State Univ., 142 N.C. App. 48, 542 S.E.2d 227, 2001 N.C. App. LEXIS 51 (2001).

In an action for specific performance of an option contract for the sale of land, where plaintiffs’ affidavits and materials in support of their motion for summary judgment, if true, established that upon tender of the deed they were ready, willing and able to pay defendants cash for the property, there were only latent doubts as to the credibility of the affidavits, the affidavits of a disinterested bank president strongly corroborated plaintiffs’ affidavits and financial statements, and defendants neither produced any contradictory affidavits, pointed to any specific grounds for impeachment, nor utilized section (f) of this rule, summary judgment against defendants decreeing specific performance was appropriate. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary Judgment was Proper in Action Involving Church Property. —

When church officials sued seceders from the church to recover church property, summary judgment was properly granted to the church officials because the church was a connectional church governed by the national and diocesan church’s canons, which provided that the church held its property in trust for the diocese; thus, when the seceders withdrew from the church, the property reverted to the diocese. Daniel v. Wray, 158 N.C. App. 161, 580 S.E.2d 711, 2003 N.C. App. LEXIS 1038 (2003).

Summary judgment in favor of land seller was correct where there was no contract in writing pertaining to the conveyance of the realty as required by G.S. 22-2 . Henry v. Shore, 18 N.C. App. 463, 197 S.E.2d 270, 1973 N.C. App. LEXIS 1903 (1973).

In a case involving property foreclosure, plaintiff lender was entitled to summary judgment where HUD entity’s alleged refusal to recast defendant’s debt or discount the mortgage was not arbitrary, capricious, or an abuse of discretion, and violated no applicable law, and there existed, therefore, no material issue of fact. Multifamily Mortg. Trust 1996-1 v. Century Oaks Ltd., 139 N.C. App. 140, 532 S.E.2d 578, 2000 N.C. App. LEXIS 802 (2000).

Summary Ejectment Actions. —

Trial court properly granted summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), to a railway in a summary ejectment action; an oil company’s sublease of property from an advertising company terminated when the lease between the railway and the advertising company terminated, and the oil company’s claim for betterments under G.S. 1-340 failed based on the company’s status as a tenant. Atl. & E. Carolina Ry. Co. v. Wheatly Oil Co., 163 N.C. App. 748, 594 S.E.2d 425, 2004 N.C. App. LEXIS 579 (2004).

Adverse Possession Action. —

Summary judgment was properly granted to a homeowners’ association on an adverse possession claim where a deed only described the parcel in which the grantor held title, case law did not allow the purchasers to tack on the grantor’s time of possession to satisfy G.S. 1-40 , and the purchasers otherwise did not satisfy the prescriptive period. Cole v. Bonaparte's Retreat Prop. Owners' Ass'n, 259 N.C. App. 27, 815 S.E.2d 403, 2018 N.C. App. LEXIS 389 (2018).

Credit Card Contract Claim. —

Trial court did not err in granting summary judgment for the bank on the breach of contract claim because the trial court correctly interpreted the cardholder agreement and determined that there were no triable issues of fact entitling the bank to summary judgment. Gaynoe v. First Union Corp., 153 N.C. App. 750, 571 S.E.2d 24, 2002 N.C. App. LEXIS 1259 (2002).

Where evidence against a check cashing business established that it executed contracts for usurious loans, it used its alternative business purpose of providing Internet access to consumers as a guise to cover this illegal activity, and no evidentiary basis existed upon which a reasonable fact-finder could reach a contrary conclusion, the State’s claims of usury and violations of the Consumer Finance Act were established as a matter of law; moreover, the contracts which customers had with the business were cancelled pursuant to G. S. 75-15.1, requiring all funds collected by the business pursuant to such contracts to be refunded to the customers. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 624 S.E.2d 371, 2005 N.C. App. LEXIS 2588 (2005).

Lender was properly granted summary judgment in a lender’s action because the borrower failed to show any improper conduct on lender’s part where there was no requirement for an in-person interview, there was no evidence of a forged signature, the lender disclosed all fees, there was no evidence of harm from allegedly backdated documents, there was no requirement that the lender recommend a reverse mortgage, and there was no violation in the same closing attorney representing both the borrower and the lender. Melton v. Family First Mortg. Corp., 156 N.C. App. 129, 576 S.E.2d 365, 2003 N.C. App. LEXIS 67 , aff'd, 357 N.C. 573 , 597 S.E.2d 672, 2003 N.C. LEXIS 1267 (2003).

Purchasing bank was properly granted summary judgment in a lender’s action because the bank, in buying a mortgage that the borrower alleged was improperly obtained in the borrower’s name, had no dealings with the borrower and had simply purchased the subject mortgage soon after its execution. Melton v. Family First Mortg. Corp., 156 N.C. App. 129, 576 S.E.2d 365, 2003 N.C. App. LEXIS 67 , aff'd, 357 N.C. 573 , 597 S.E.2d 672, 2003 N.C. LEXIS 1267 (2003).

In Action for Permanent Injunction of Member’s Inappropriate Behavior Toward Association. —

Although the member presented evidence that the association’s board president and dockmaster acted inappropriately towards him, because the member’s own behavior and conduct towards the association was equally inappropriate and continued unabated, and because the trial court weighed and balanced the competing equities of both parties and concluded that the member’s conduct was egregious enough to warrant the issuance of a permanent injunction, summary judgment was properly granted in favor of the association. Fed. Point Yacht Club Ass'n v. Moore, 233 N.C. App. 298, 758 S.E.2d 1, 2014 N.C. App. LEXIS 307 (2014).

To recover damages on a claim alleging unfair and deceptive trade practices, a plaintiff must show, inter alia, actual injury as a result of the defendant’s unfair and deceptive act; where, in a claim brought by mobile home owners alleging unfair and deceptive trade practices by the manufacturers of the homes in the manufacturers’ recommendations for use of an allegedly defective mobile home tie down system, summary judgment for the manufacturers was proper and was affirmed where, in his deposition, one owner admitted that he did not rely on the manufacturers’ recommendation to use the tie-down system at issue when he bought his mobile home, that did not read the manual which specified the system, that the manufacturers did not make any representations about the system before he bought his mobile home, that his home withstood two hurricanes without damage to the system, and that he had not suffered any damages. Belcher v. Fleetwood Enters., 162 N.C. App. 80, 590 S.E.2d 15, 2004 N.C. App. LEXIS 9 (2004).

Action for Fraud. —

Where plaintiff failed to prove that defendant car dealership knew or had reason to know of used car’s history, and did not even forecast that she could produce such evidence at trial, there was no genuine issue regarding the dealership’s knowledge and summary judgment was correct as to charge of fraud. Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

Summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c) was properly granted in child’s claim against the father alleging fraud, among other things; because the claim accrued when the child was a minor, the child was required under G.S. 1-17(a), G.S. 1-52 to file the claim within three years of reaching majority, which the child failed to do, as the summons and complaint, which began the lawsuit pursuant to G.S. 1A-1 , N.C. R. Civ. P. 3, were not issued until after the deadline passed. Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356, 2003 N.C. App. LEXIS 188 (2003).

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, fraud was proper because the litigant stated in a deposition that she had not relied on any statements by defendants in regard to an article by the writer. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Unfair Trade Practice. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim for treble damages under G.S. 75-1.1 of the North Carolina Unfair and Deceptive Trade Practices Act, G.S. 75-1 et seq., as the subcontractor failed to plead a viable fraud claim, and failed to show substantial aggravating circ*mstances attending to a breach of contract. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Failure to Prove Essential Elements of Fraud Claim. —

Trial court properly granted summary judgment in favor of a corporation and its stockholder as the former employee, who was required by an agreement to sell his stock to the corporation for which he worked upon the termination of his employment, could not prove essential elements of his claims for for fraud, constructive fraud, negligent misrepresentation, violating the North Carolina Securities Act (G.S. 78A-56(b)), and punitive damages. Sullivan v. Mebane Packaging Group, Inc., 158 N.C. App. 19, 581 S.E.2d 452, 2003 N.C. App. LEXIS 944 (2003).

Fraud Claim Was Properly Dismissed on Summary Judgment. —

Plaintiff’s claim that its former customer’s employee revealed to plaintiff’s competitor confidential information from plaintiff’s bid that allowed the competitor to underbid, thereby committing fraud and violating G.S. 66-152(3) and G.S. 75-1.1 , was properly dismissed on summary judgment; plaintiff, by submitting information to its customer and allowing it to use and disclose bid information at its sole discretion, did not act reasonably to maintain the secrecy of its bid information, so that it was not a “trade secret.” Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App. 520, 586 S.E.2d 507, 2003 N.C. App. LEXIS 1825 (2003).

Summary judgment was properly granted to the tax preparers on a fraudulent concealment claim where at the time the emails were sent, the preparers had already been terminated by plaintiff and replaced by another accountant, and as a result, they owed no per se fiduciary duty to plaintiff.

In an action for fraud based upon alleged misrepresentation of acreage in a land sale, summary judgment was properly granted for defendants who successfully carried the burden of negating an element of fraud by showing that any representations on their part were made neither with knowledge of their falsity nor in culpable ignorance of their truth. Russo v. Mountain High, Inc., 38 N.C. App. 159, 247 S.E.2d 654, 1978 N.C. App. LEXIS 2122 (1978).

Fraudulent Inducement of Real Estate Purchase. —

Summary judgment was properly granted in favor of the real estate agents on the purchasers’ fraud and unfair and deceptive trade practices claims because the purchasers failed to make a sufficient showing that they suffered damages. Wall v. Fry, 162 N.C. App. 73, 590 S.E.2d 283, 2004 N.C. App. LEXIS 61 (2004).

Buyers’ misrepresentation claims against defendant seller and real estate agent were properly dismissed on summary judgment because defendants’ affidavits, in which they stated they did not know the land sold to the buyers was in a flood zone, negated the element of “intent to deceive” and the buyers did not produce conflicting evidence. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51, 2003 N.C. App. LEXIS 2054 (2003).

Buyers’ negligent misrepresentation claims against the seller and his real estate agent failed, as the agent was entitled to rely on a surveyor’s representation that the property sold to the buyers was not in a flood zone. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51, 2003 N.C. App. LEXIS 2054 (2003).

Negligent Failure to Maintain Sidewalk. —

Summary judgment was appropriate where the plaintiff failed to offer any evidence that the city had either actual or constructive notice of any alleged defect in its sidewalk, as required to support a negligence claim under G.S. 160A-296(a) , and so as to create a genuine issue of material fact. Willis v. City of New Bern, 137 N.C. App. 762, 529 S.E.2d 691, 2000 N.C. App. LEXIS 499 (2000).

Slander Per Se Against Reporter of Child Abuse. —

Summary judgment for the defendant on the issue of slander per se was appropriate where the plaintiff’s description of retaliatory motives for defendant’s report failed to rebut the statutory presumption created in favor of the defendant by the child abuse reporting provisions of G.S. 7B-301 and 7B-309 which together provide immunity not merely conditional upon proof of good faith, but a “good faith” immunity which endows the reporter with the mandatory presumption that he or she acted in good faith. Dobson v. Harris, 352 N.C. 77 , 530 S.E.2d 829, 2000 N.C. LEXIS 433 (2000).

Slander of Title Claim. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, slander of title was proper because the statement that title to the litigant’s property was held in trust for the litigant’s children was true and there were no damages shown. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Summary judgment was appropriate on the plaintiffs’ defamation claim where, taken as a whole, newspaper article was a substantially accurate report of the allegations in the arrest warrant; although a disputed semicolon was admittedly misused in a sentence, its use did not cause the article to fail the substantial accuracy test when compared to the warrant. Lacomb v. Jacksonville Daily News Co., 142 N.C. App. 511, 543 S.E.2d 219, 2001 N.C. App. LEXIS 148 (2001).

Libel Claim. —

Trial court did not err in granting defendants’ motion for summary judgment on plaintiffs’ libel claim. Martin Marietta Corp. v. Wake Stone Corp., 111 N.C. App. 269, 432 S.E.2d 428, 1993 N.C. App. LEXIS 802 (1993), aff'd, 339 N.C. 602 , 453 S.E.2d 146, 1995 N.C. LEXIS 21 (1995).

Where trial court determined that plaintiffs were limited-purpose public figures and the plaintiffs failed to show malice on the part of defendants vis-a-vis their statements in a newspaper story, the trial court did not err in granting summary judgment to the defendants on plaintiffs’ defamation claims. Gaunt v. Pittaway, 135 N.C. App. 442, 520 S.E.2d 603, 1999 N.C. App. LEXIS 1147 (1999).

Union was entitled to summary judgment on the members’ libel claims since the union was entitled to a qualified privilege with regard to the statements it made in the newsletter and the members failed to show sufficient evidence of actual damages. Priest v. Sobeck, 160 N.C. App. 230, 584 S.E.2d 867, 2003 N.C. App. LEXIS 1730 (2003).

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, libel, was proper because the writer’s article about the litigant’s 30-year litigation with a former spouse contained statements that were not susceptible of only one defamatory meaning as a matter of law, notwithstanding the litigant’s interpretation of the statements. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Action for Breach of Contract by Failing to Pay for Goods. —

Company that ordered telephone equipment accepted the equipment because it did not reject it within three weeks after the equipment was installed, pursuant to a contract it signed to purchase the equipment; because the general notice which the company gave that the equipment did not conform to its requirements did not revoke its acceptance, the trial court properly granted summary judgment for a company that sold the equipment on its claim that the company which bought the equipment wrongfully failed to pay for it. Business Communs., Inc. v. Ki Networks, Inc., 157 N.C. App. 710, 580 S.E.2d 77, 2003 N.C. App. LEXIS 937 (2003).

Breach of Contract Claim. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim of breach of contract, as the subcontractor neither claimed that it had a direct contract with the owners nor produced evidence tending to show that the owners ratified the contract between the contractor and the subcontractor. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Trial court properly granted partial summary judgment to a businessman against a shareholder and a corporation because the merger of a company into the corporation without any prior notice to or consent by the businessman resulted in a breach of a stock option and restriction agreement between the businessman and the company and its sole shareholder, because the merger clearly effected a change in the capitalization of the company. Lee v. Scarborough, 162 N.C. App. 674, 592 S.E.2d 43, 2004 N.C. App. LEXIS 259 , op. withdrawn, sub. op., 164 N.C. App. 357, 595 S.E.2d 729, 2004 N.C. App. LEXIS 812 (2004).

Corporation’s approval of a merger pursuant to G.S. 55-11-01 to 55-11-10 constituted a change in the capitalization of the corporation and violated the terms of its option agreement with a consultant who had a five-year option to purchase 50 percent of the shares of the corporation; thus, summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) was properly entered for the consultant on the issue of breach of contract against both the corporation and its principal. Lee v. Scarborough, 164 N.C. App. 357, 595 S.E.2d 729, 2004 N.C. App. LEXIS 812 (2004).

Summary judgment was properly granted to buyers on their breach of contract suit against a seller because, under the plain language of the agreement entered into between the parties, which stated that the seller would “cause” enumerated repairs to be made, the seller was required to fully complete the enumerated repairs, not just pay for them; since it was undisputed that the repairs had not been performed and since the buyers had not frustrated any effort made by the seller to complete the repairs, the evidence showed that the seller was in breach despite the fact that she had deposited a sum for the repairs in escrow. Cater v. Barker, 172 N.C. App. 441, 617 S.E.2d 113, 2005 N.C. App. LEXIS 1799 (2005), aff'd, 360 N.C. 357 , 625 S.E.2d 778, 2006 N.C. LEXIS 15 (2006).

Trial court properly held that buyers were entitled to a return of their earnest money deposited in escrow upon the signing of a contract for the purchase of the sellers’ house, and thus properly granted summary judgment to the buyers, because the buyers promptly exercised their right to terminate the contract, as provided in an addendum to the contract, when an inspection revealed that repairs were necessary in an amount exceeding $10,000. Dysart v. Cummings, 181 N.C. App. 641, 640 S.E.2d 832, 2007 N.C. App. LEXIS 402 , aff'd, 361 N.C. 580 , 650 S.E.2d 593, 2007 N.C. LEXIS 1008 (2007).

Summary judgment was appropriate on the breach of contract and related claims where plaintiff’s argument that the trial court erred in declining to treat its verified complaint as an affidavit was purely procedural, and the only argument offered on genuine issues of material fact was a passing, bare assertion that such issues were present. Allied Spectrum, LLC v. German Auto Ctr., Inc., 250 N.C. App. 308, 793 S.E.2d 271, 2016 N.C. App. LEXIS 1169 (2016), aff'd, 370 N.C. 454 , 809 S.E.2d 565, 2018 N.C. LEXIS 54 (2018).

In an action to recover on a note which was guaranteed, by defendants, summary judgment was properly entered for plaintiff where the record did not indicate any doubts, other than latent doubts, as to the credibility of plaintiff ’s affiant, defendants failed to introduce any materials in their favor or point to any specific areas of impeachment or contradiction, and no genuine issue of material fact was raised. United Va. Bank v. Woronoff, 50 N.C. App. 160, 272 S.E.2d 618, 1980 N.C. App. LEXIS 3463 (1980), cert. denied, 302 N.C. 629 , 280 S.E.2d 449 (1981).

The bank was entitled to summary judgment since the record failed to show that the bank had actual notice or knowledge that the trustee was breaching the trust agreement and his fiduciary duty when he entered into the substitution of collateral agreement with the bank. FNB Southeast v. Lane, 160 N.C. App. 535, 586 S.E.2d 530, 2003 N.C. App. LEXIS 1821 (2003).

In an action brought by plaintiff, a subcontractor, to recover payment for materials provided on apartment construction projects, summary judgment for defendants was proper; affidavits plaintiff submitted did no more than set forth plaintiff’s unsubstantiated allegations. Smiley's Plumbing Co. v. PFP One, Inc., 155 N.C. App. 754, 575 S.E.2d 66, 2003 N.C. App. LEXIS 16 (2003).

Where plaintiff, in her deposition, repudiated the allegations of her complaint in an unequivocal manner, a motion for summary judgment in defendant’s favor would be proper, since a directed verdict in defendant’s favor would be called for at trial on the basis of plaintiff ’s testimony. Woods v. Smith, 297 N.C. 363 , 255 S.E.2d 174, 1979 N.C. LEXIS 1253 (1979).

Inability to Serve Process. —

Plaintiff ’s failure to demonstrate that her inability to serve process upon a codefendant was excusable, or that it prejudiced her case against the defendant at bar, would not constitute grounds for reversing summary judgment as to the present defendant. Ramsey v. Keever's Used Cars, 92 N.C. App. 187, 374 S.E.2d 135, 1988 N.C. App. LEXIS 1028 (1988).

Summary judgment on the basis of governmental immunity was appropriate where the defendants, the city and the police officer who drove the van which struck the plaintiff’s vehicle, were both immune from liability because the officer’s negligence took place while he was engaged in the repair and subsequent return of the van to the city’s garage, a governmental function. Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590, 2000 N.C. App. LEXIS 539 (2000).

Property owners’ negligent misrepresentation claim against county agencies was barred by sovereign immunity. Tabor v. County of Orange, 156 N.C. App. 88, 575 S.E.2d 540, 2003 N.C. App. LEXIS 28 (2003).

When an injured party sued a rural fire department and one of its firemen for injuries he received from one of the department’s vehicles after the department responded to a fire in the injured party’s neighborhood, the department and the fireman were entitled to summary judgment because they were statutorily immune under G.S. 58-82-5 as they met the statutory definitions of a rural fire department and a fireman, and the injury occurred when they were responding to and in the process of suppressing a fire. Luhmann v. Hoenig, 161 N.C. App. 452, 588 S.E.2d 550, 2003 N.C. App. LEXIS 2187 (2003), rev'd, 358 N.C. 529 , 597 S.E.2d 763, 2004 N.C. LEXIS 674 (2004).

Sovereign Immunity. —

County had not waived sovereign immunity by means of either the State Building Code or its purchase of liability insurance, and summary judgment in favor of the county in a claim alleging failure to properly inspect a house and negligent issuance of permits relating to the house was affirmed. Norton v. SMC Bldg., 156 N.C. App. 564, 577 S.E.2d 310, 2003 N.C. App. LEXIS 206 (2003).

When an assistant principal was sued for a student’s injuries when an automobile struck the student as she walked to her school bus stop, assistant principal was entitled to summary judgment because, under G.S. 115C-42 , he only waived sovereign immunity to the extent he purchased liability coverage, his insurance policy contained an exclusion of coverage for incidents arising from the use of a motor vehicle, and an exception to this exclusion for supervising students entering and exiting a school bus required the assistant principal’s personal presence before his sovereign immunity was waived, and, as he was not present when the student was injured, his sovereign immunity was not waived, whether or not he changed the student’s bus stop after she was assaulted on the school bus. Herring v. Liner, 163 N.C. App. 534, 594 S.E.2d 117, 2004 N.C. App. LEXIS 422 (2004).

Estoppel. —

Where plaintiff asserts estoppel against defendants, summary judgment is appropriate when the defendants as the moving parties establish the absence of any genuine issue of fact as a complete defense to the opponent’s claim. If the factual evidence, taken in the light most favorable to the nonmovant, allows no inferences inconsistent with the defense, the movant has satisfied his burden, and summary judgment in its favor will be affirmed, and this is true even when the facts raise difficult questions of law. Thomas v. Ray, 69 N.C. App. 412, 317 S.E.2d 53, 1984 N.C. App. LEXIS 3476 (1984).

In an action by a commercial landlord for damages occasioned by a default by a company on a lease, summary judgment was proper estopping a guarantor of the company’s lease from avoiding the guaranty where the guarantor had personally benefitted from the extension of the original lease that he had guaranteed. Sherwin-Williams Co. v. ASBN, Inc., 163 N.C. App. 547, 594 S.E.2d 135, 2004 N.C. App. LEXIS 416 (2004).

Defense of Laches. —

Summary judgment was properly granted to buyers on a seller’s defense of laches alleged in the buyers’ breach of contract suit because the defense was not applicable in that the trial court’s entry of summary judgment awarded the buyers damages, a legal remedy, not specific performance; laches is not available in an action at law. Cater v. Barker, 172 N.C. App. 441, 617 S.E.2d 113, 2005 N.C. App. LEXIS 1799 (2005), aff'd, 360 N.C. 357 , 625 S.E.2d 778, 2006 N.C. LEXIS 15 (2006).

Failure to Assert Specific Facts in Supporting Affidavit. —

Summary judgment was appropriate where defendants set forth no specific facts with respect to the various properties’ fair values or other relevant information to support their allegation that the plaintiff intentionally paid less than fair market value for all the property at the foreclosure sales. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

Alleged Negligence of Veterinarian. —

Plaintiff cat owner possessed knowledge that her cat might bite during an attempted catheterization and such knowledge was equal or superior to that of the veterinarian attempting to perform such procedure, and where the cat bit plaintiff during the course of said catheterization, plaintiff failed to establish a breech of duty on the part of the veterinarian, and the veterinarian was entitled to summary judgment as no material fact remained to be resolved at trial. Branks v. Kern, 320 N.C. 621 , 359 S.E.2d 780, 1987 N.C. LEXIS 2372 (1987).

Medical Malpractice. —

There was no error in granting defendant’s motion for summary judgment in a medical malpractice action where the affidavits of experts relied upon by plaintiff failed to identify the applicable standard of care required for the defendant. Evans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94, 1988 N.C. App. LEXIS 878 (1988).

Legal Malpractice Action. —

Legal malpractice action accrues at the time of the last act of the defendant giving rise to the cause of action, but if the claimant’s loss is not readily apparent to the claimant at the time of its origin, and is discovered or should reasonably be discovered by the claimant two or more years after the last act of the defendant giving rise to the cause of action, suit must be commenced within one year from the date discovery is made; a legal malpractice case alleging that the lawyers failed to advise the client of use restrictions on land purchased by the client was time barred, and the trial court’s order dismissing the case was affirmed, where, in a separate case, the client had failed to specifically deny that he was notified of the land use restrictions approximately two months after closing on the purchase of the land, and over three years before filing the legal malpractice case. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915, 2004 N.C. App. LEXIS 56 (2004).

Summary judgment in favor of estate of defendant attorney in legal malpractice action alleging his negligent representation of plaintiff in a medical malpractice action held proper. Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Trial court did not err in granting summary judgment to a law firm, that was being sued by a client for malpractice with regard to the law firm’s representation of the client in a forfeiture proceeding, because the client failed to demonstrate that his injury proximately resulted from the law firm’s alleged negligence. Belk v. Cheshire, 159 N.C. App. 325, 583 S.E.2d 700, 2003 N.C. App. LEXIS 1529 (2003).

In an appeal by outdoor advertising companies of the revocations of their permits for outdoor advertising signs, summary judgment was properly applied to the trial court’s finding that the words “height” and “sign” in N.C. Admin. Code tit. 19A, r. 2E.0203(1)(f) were used in their common sense as this interpretation of a regulation was a question of law, rather than of fact, and there was no indication that the words had acquired some technical meaning. Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 582 S.E.2d 717, 2003 N.C. App. LEXIS 1417 (2003).

Action Against Police Officers in High-Speed Chase. —

Summary judgment was proper where plaintiff failed to demonstrate the existence of a genuine issue of material fact as to gross negligence on the part of the officers who attempted to apprehend a motorist suspected of driving while intoxicated and the actions of the officers were, otherwise, exempt under G.S. 20-145 . Norris v. Zambito, 135 N.C. App. 288, 520 S.E.2d 113, 1999 N.C. App. LEXIS 1061 (1999).

Summary judgment was proper when only issues were legal ones, namely the effect of a note being erroneously marked “Paid and Satisfied,” and the effect of plaintiff’s lack of possession on its ability to enforce the note. G.E. Capital Mtg. Servs. v. Neely, 135 N.C. App. 187, 519 S.E.2d 553, 1999 N.C. App. LEXIS 971 (1999).

Where Only a Question of Law was Presented. —

Where resolution of an issue presented only questions of law, the case was appropriate for entry of summary judgment, provided the undisputed facts established that one of the parties was entitled to judgment. Smith v. State Farm Mut. Auto. Ins. Co., 157 N.C. App. 596, 580 S.E.2d 46, 2003 N.C. App. LEXIS 933 (2003), rev'd, 358 N.C. 725 , 599 S.E.2d 905, 2004 N.C. LEXIS 913 (2004).

Summary Judgment Properly Entered for Defendants. —

See Smith v. Association for Retarded Citizens for Hous. Dev. Servs., Inc., 75 N.C. App. 435, 331 S.E.2d 324, 1985 N.C. App. LEXIS 3701 (1985).

Trial court did not err in granting summary judgment to a skier’s parents on the injured party’s negligence claim that they were liable for the actions of their 12-year-old son who ran into the injured party on a beginner’s ski slope and injured her, because the injured party did not present a sufficient forecast of evidence to overcome the rebuttable presumption that the 12-year-old skier was incapable of negligence. Frank v. Funkhouser, 169 N.C. App. 108, 609 S.E.2d 788, 2005 N.C. App. LEXIS 515 (2005).

As the evidence before the trial court on a motion for summary judgment filed by a police department did not raise a genuine issue of material fact as to whether numerous current police officers were entitled to a pay increase, because the city council had not approved any pay raise for existing employees of the police department with post-secondary degrees, the trial court properly granted summary judgment in favor of the department and against the contesting officers. City of Asheville v. Bowman, 172 N.C. App. 586, 616 S.E.2d 669, 2005 N.C. App. LEXIS 1808 (2005).

Action to Quiet Title. —

Where a city became the record owner of property pursuant to a tax foreclosure sale, and where purported adverse possessors brought their action to quiet title beyond the one year statute of limitation contained in G.S. 105-377 , there were no genuine issues of material fact and the city was entitled to summary judgment. Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643, 1985 N.C. App. LEXIS 3639 (1985).

Summary judgment quieting title in the seller of lots in a subdivision was properly granted; the seller had sought to quiet title to a parcel adjacent to the subdivision that was discovered when a new survey revealed that the seller and her husband did not convey all of certain real estate when they sold the subdivision lots, and the seller’s title to this parcel was superior to that of the owners of lots in the subdivision, who purported to divide the parcel among themselves. Hensley v. Samel, 163 N.C. App. 303, 593 S.E.2d 411, 2004 N.C. App. LEXIS 375 (2004).

Summary judgment was properly granted to the seller of lots in a subdivision finding that she held title to the subdivision’s roads because the deeds of the owners of lots in the subdivision did not purport to grant them an ownership interest in the roads and only granted them the right to use the roads to access their lots. Hensley v. Samel, 163 N.C. App. 303, 593 S.E.2d 411, 2004 N.C. App. LEXIS 375 (2004).

Summary judgment was appropriate where the plaintiffs failed to establish the existence of an agency relationship between defendant/franchisor and defendant/cleaning company whose driver ran over a six-year-old boy. Although the franchise agreement was extensive, prescribing standards of attire and appearance of franchisee’s employees and the condition of its equipment, the franchisor’s involvement functioned largely to ensure uniform service and public good will toward the corporation, and the franchisor retained no control over the hiring, firing, or supervision of the franchisee’s personnel and its remedies, in the event of a breach of the Agreement, were limited. Miller v. Piedmont Steam Co., 137 N.C. App. 520, 528 S.E.2d 923, 2000 N.C. App. LEXIS 419 (2000).

In a house owner’s suit brought to recover from an employer for the negligence of the employer’s employee, occurring when the employee failed to sufficiently extinguish a cigarette while at the owner’s house, resulting in the destruction of the owner’s home, the trial court properly granted summary judgment to the owner on the issue of respondeat superior. While the employer contended that the employee’s act of smoking was not within the scope of her employment, the employee did not depart from the employer’s business when she smoked the cigarette and negligently failed to extinguish it when going to answer the phone as the employee was on the employer’s premises where she was required to be, able and willing to perform her duties, and the negligence occurred when she went to perform one of those duties, answering the telephone. Estes v. Comstock Homebuilding Cos., 195 N.C. App. 536, 673 S.E.2d 399, 2009 N.C. App. LEXIS 209 (2009).

Summary Judgment Was Appropriate In Tortious Interference With Contract Claim. —

Plaintiff’s claim of tortious interference with contract against its former customer’s employee and a competitor was properly dismissed on summary judgment, as the competitor’s bid for a landscaping contract with the customer was a non-malicious motive for its “interference” with plaintiff’s contract, and the fact that the competitor’s bid was lower than plaintiff’s provided a non-malicious business explanation for the employee’s actions. Area Landscaping, L.L.C. v. Glaxo-Wellcome, Inc., 160 N.C. App. 520, 586 S.E.2d 507, 2003 N.C. App. LEXIS 1825 (2003).

Third Party Beneficiary. —

Trial court properly granted the owners’ summary judgment motion as a subcontractor was not a third-party beneficiary of the contractor’s agreement with the owners where: (1) even assuming that the owners agreed to pay the contractor additional funds in order to pay various subcontractors, no new consideration flowed to the the owners, (2) under the original contract between the contractor and the owners, the contractor agreed to construct a dialysis center for a fixed price, and any additional money above the fixed price would constitute a contractual modification requiring new consideration, and (3) all claims, including the alleged additional contract, were determined in an arbitration proceeding between the contractor and the owners. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Summary judgment was proper for defendant insurer whose policy excluded the commercial use of a boat; although no member of the public was paying for a parasail ride or was even in the boat at the time of plaintiff’s injury, plaintiff was parasailing to attract customers. Bratton v. Oliver, 141 N.C. App. 121, 539 S.E.2d 40, 2000 N.C. App. LEXIS 1294 (2000).

In a private nuisance action against adjacent landowners, one of the defendants presented an affidavit that it was not and had never been an owner of the land in question. By failing to come forward with evidence, by affidavit or otherwise, which would have tended to show an issue of triable fact, the plaintiff ’s claim was subject to summary judgment. Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, 1985 N.C. App. LEXIS 3614 (1985).

County Swine Farm Regulations. —

Summary judgment was appropriate for plaintiff who sued the county claiming that a county swine ordinance and county health board rules were preempted by the General Assembly’s “complete and integrated regulatory scheme” of swine farm regulations; counties may not act to zone a swine farm other than as authorized by the limited statutory exception of G.S. 153-340(b)(3). Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455, 2001 N.C. App. LEXIS 221 (2001), aff'd in part and rev'd in part, 356 N.C. 40 , 565 S.E.2d 172, 2002 N.C. LEXIS 539 (2002).

Tobacco Cooperative Stabilization Corporations Marketing Operations Were Not Improper. —

Trial court properly granted summary judgment to a tobacco cooperative stabilization corporation in a restraint of trade claim brought by various tobacco warehouses because the corporation’s creation of market centers subsidizing warehouse operations fell within an exemption of North Carolina’s antitrust laws under G.S. 54-141 ; furthermore, the tobacco warehouses could not assert claims under N.C. Const. art. I, §§ 19 and 34 as no action was taken by the corporation as State action. Bailey v. Flue-Cured Tobacco Coop. Stabilization Corp., 158 N.C. App. 449, 581 S.E.2d 811, 2003 N.C. App. LEXIS 1179 (2003).

Property Owners’ Association’s Assessments. —

Summary judgment was proper where no genuine issue of material fact existed as to the application and enforceability of owners’ association’s assessment provisions against defendant property owners. McGinnis Point Owners Ass'n v. Joyner, 135 N.C. App. 752, 522 S.E.2d 317, 1999 N.C. App. LEXIS 1242 (1999).

Easem*nt Claim. —

In an apartment complex owner’s action to enjoin a developer and a corporation from parking a 40-foot eight-wheeled construction trailer on a lot on which the owner had an easem*nt for ingress and egress to the complex, a grant of summary judgment on the issue of the existence of an easem*nt across the street and ordering of the removal of the trailer was proper because the owner had acquired an easem*nt by dedication and by prior use and the trailer, which blocked access to the apartments, was an unreasonable interference with the owner’s rights. Ferrell v. Doub, 160 N.C. App. 373, 585 S.E.2d 456, 2003 N.C. App. LEXIS 1800 (2003).

When the seller of lots in a subdivision was properly found to have title to a newly-discovered parcel adjacent to the subdivision, it was error to deny her motion for partial summary judgment on the issue of whether seller was entitled to use the roads in the subdivision to access her parcel; seller held title to those roads and could use them as she saw fit, as long as she did not interfere with the easem*nts possessed by the owners of lots in the subdivision to use the roads to access their lots. Hensley v. Samel, 163 N.C. App. 303, 593 S.E.2d 411, 2004 N.C. App. LEXIS 375 (2004).

Obligations Under a Separation Agreement. —

Where the facts indicated that the parties executed a separation agreement free from any duress or other illegalities which would invalidate their contract, and the parties negotiated the terms of their agreement at arms-length, there was no genuine issue of material fact to be decided; defendant’s obligation to pay support to plaintiff was clear and summary judgment on the issue was proper. Brandt v. Brandt, 92 N.C. App. 438, 374 S.E.2d 663, 1988 N.C. App. LEXIS 1072 (1988), aff'd, 325 N.C. 429 , 383 S.E.2d 656, 1989 N.C. LEXIS 477 (1989).

Railroad Retirement Benefits Under a Marital Separation Agreement. —

Trial court properly granted summary judgment in favor of ex-wife in her suit to enforce a separation agreement and did not err in entering an order awarding the ex-wife 29.5 percent of the ex-husband’s divisible railroad retirement benefits. Gilmore v. Garner, 157 N.C. App. 664, 580 S.E.2d 15, 2003 N.C. App. LEXIS 942 (2003).

Subrogation. —

Summary judgment was proper where the lease contained an explicit waiver by each party of its right to recover against the other for any loss covered by insurance and the defendant insurance company included a clause permitting its insured to contract to release third parties from liability, thus waiving its right to subrogation. Lexington Ins. Co. v. Tires into Recycled Energy & Supplies, Inc., 136 N.C. App. 223, 522 S.E.2d 798, 1999 N.C. App. LEXIS 1312 (1999).

Enforcement of Lien. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim for enforcement of lien under G.S. 44A-23 , as the subcontractor’s claim was by way of subrogation, the contractor’s claim against the owners had been arbitrated, and after the contractor’s claim was set-off against the owners’ claim, the contractor was indebted to the owners for corrected and uncompleted work. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Controlling Statutes of Limitation and Repose. —

Although ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending, where the information sought by plaintiff was not material to the pertinent dates under the statutes of limitation and repose which controlled the disposition of the case, plaintiff suffered no prejudice because the court granted defendant’s summary judgment motion, based on such statutes, prior to the completion of discovery. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566, 1986 N.C. App. LEXIS 2321 (1986).

Action Barred by Statute of Limitations. —

Contractor’s Insurer’s motion for summary judgment was properly granted where the subcontractors’ suit was time-barred under G.S. 44A-28(b) because: (1) the contractor had sent a final bill on the project to the City; (2) the project engineer had advised the City that the work was substantially complete and that final payment (less a retainage) should be made, with the retainage balance to be paid after the City was satisfied that the project was 100-percent complete; (3) the City wrote the contractor a check for the final amount less the retainer more than one-year before the suit was filed; (4) the City’s Finance Director was confident that the final sum had been determined even though a retainage had been kept; and (5) the City’s engineering technician testified that contractors submitted a final bill and that the retainage was usually paid one to three months later. Cencomp, Inc. v. Webcon, Inc., 157 N.C. App. 501, 579 S.E.2d 482, 2003 N.C. App. LEXIS 731 (2003).

Although a deed which a grantor delivered to a grantee as a trustee was void ab initio because it was executed before the trust came into effect, the trial court erred by denying the trustee’s motion for summary judgment on the grantor’s claim for title to the property because the grantor’s claim was based on allegations of fraud and misrepresentation, and was barred by G.S. 1-52(9) . Gifford v. Linnell, 157 N.C. App. 530, 579 S.E.2d 440, 2003 N.C. App. LEXIS 744 (2003).

Contract which a buyer and a seller concluded for the purchase of a mobile home was governed by North Carolina’s Uniform Commercial Code because the predominant factor of the contract was the delivery of the mobile home, and services provided to install it were incidental; the trial court ruled correctly that the buyer and seller’s contract reduced the time for filing an action for breach of contract from four years to one year, pursuant to G.S. 25-2-725(1) , and that the seller was entitled to summary judgment on the buyer’s claim for breach of contract because the buyer’s action was time-barred. Hensley v. Ray's Motor Co. of Forest City, Inc., 158 N.C. App. 261, 580 S.E.2d 721, 2003 N.C. App. LEXIS 1050 (2003).

To determine if a lawsuit is barred by the three year statute of limitations in G.S. 1-52 , a court first determines when the breach occurred that caused the cause of action to accrue; where a counterclaim on a breach of contract action was filed more than three years after the breach allegedly occurred, the counterclaim was barred by the statute of limtations and was properly dismissed on summary judgment. PharmaResearch Corp. v. Mash, 163 N.C. App. 419, 594 S.E.2d 148, 2004 N.C. App. LEXIS 410 (2004).

Action Barred By Statute of Repose. —

Action alleging faulty construction of a house was barred by the statute of repose where the case was not filed until more than six years after the house was substantial completed and occupied as a residence; the homeowners’ allegations that the construction company’s conduct and failure to follow the building code constituted more than ordinary negligence were insufficient to establish equitable estoppel to bar the construction company from asserting the statute of limitations defense, and summary judgment in favor of the construction company was affirmed. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 587 S.E.2d 479, 2003 N.C. App. LEXIS 2004 (2003).

Settlement Properly Not Set Aside. —

Summary judgment order was proper as the pain clinic and its doctors could not set aside a settlement with the foundation and its trustee that was entered into after the decision was made to not continue the funding of the clinic because: (1) any fiduciary duty was repudiated before the settlement negotiations; (2) the fraud and breach of contract claims were barred by statutes of limitations; and (3) the negligent misrepresentation claim was properly denied as there was no duty owed; furthermore, the clinic and its doctors failed to allege damages under any tort theory as to the foundation’s bank and the law firm, therefore, their claims were properly dismissed as to them for failing to allege damage as an essential element of each cause of action. Piedmont Inst. of Pain Mgmt. v. Staton Found., 157 N.C. App. 577, 581 S.E.2d 68, 2003 N.C. App. LEXIS 934 (2003).

Where plaintiff failed to comply with sections (e) and (f) of this rule and did not point to any specific ground for impeaching defendant’s affidavit, which established his right to summary judgment, trial court properly granted summary judgment against plaintiff on its claims against defendant. G & S Bus. Servs., Inc. v. Fast Fare, Inc., 94 N.C. App. 483, 380 S.E.2d 792, 1989 N.C. App. LEXIS 557 (1989).

Party Did Not Request A Continuance To Permit Pre-trial Discovery. —

Trial court did not err in proceeding with a summary judgment hearing where the plaintiffs did not move for a continuance of the summary judgment hearing to allow additional time for pre-trial discovery to take place. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 571 S.E.2d 849, 2002 N.C. App. LEXIS 1402 (2002).

Alleged Discrimination in Violation of Constitution. —

Summary judgment was proper against plaintiff who alleged that defendant/city discriminated against her in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the North Carolina Constitution by enforcing its parking requirements against her but not against other businesses in the area, because the plaintiff failed to offer evidence of an essential element of her claim, namely, that the city acted in a consciously evil manner. Brown v. City of Greensboro, 137 N.C. App. 164, 528 S.E.2d 588, 2000 N.C. App. LEXIS 271 (2000).

Intentional Infliction of Emotional Distress. —

Where one plaintiff could place no time period in which defendant allegedly intentionally inflicted emotional distress, and where she was unable to place a day, month or year on any of the specific events she alleged, there was simply no evidence to indicate that any of the alleged incidents regarding plaintiff took place within the three-year statute of limitations period, and the trial court did not err in granting summary judgment to defendant against that plaintiff. Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683, 1990 N.C. App. LEXIS 903 (1990), aff'd in part, rev'd, 331 N.C. 73 , 414 S.E.2d 22, 1992 N.C. LEXIS 152 (1992).

Summary judgment was proper on a nurse’s claim for intentional infliction of emotional distress; her co-worker’s actions in breaking rules at work and then throwing papers at her when she confronted him were not sufficiently outrageous. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Negligent Infliction of Emotional Distress. —

Trial court properly granted summary judgment to a funeral company on a claim of negligent infliction of emotional distress by the wife of a decedent; the wife failed to show that she suffered severe emotional distress based on the company’s disinterment of the decedent pursuant to a court order obtained by the decedent’s mother, and the subsequent reburial of the decedent in Puerto Rico. Pacheco v. Rogers & Breece, Inc., 157 N.C. App. 445, 579 S.E.2d 505, 2003 N.C. App. LEXIS 738 (2003).

Summary judgment was proper against nurse’s claim for negligent infliction of emotional distress; she failed to show that her co-worker owed her any duty or that he breached the duty. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Invasion of Privacy — Intrusion Claim. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, invasion of privacy, was proper because the litigant could only have claimed an invasion of privacy claim for intrusion in North Carolina and the writer’s use of public records did not constitute an intrusion sufficient to support the claim. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Failure to Meet Severity Requirement of Negligent Infliction of Emotional Distress. —

Summary judgment was appropriate where defendant/stepmother who shot her husband met her burden of demonstrating the absence of an essential element of plaintiffs stepdaughters’ claim, i.e., severe emotional distress, and the alleged emotional distress of plaintiffs as described in their responses to defendant’s interrogatories failed to meet the requisite level of “severe” emotional distress. Johnson v. Scott, 137 N.C. App. 534, 528 S.E.2d 402, 2000 N.C. App. LEXIS 413 (2000).

Action to Quiet Title Based on Fraud. —

Where the cause of action is in fraud, the defendants would have a basic right to a jury trial. However, judge in action to quiet title based on fraud and on construction of deed considered only the intent of the parties in the deed in question and did not reach the issue of fraud. Once the intent was determined from the four corners of the deed, “fraud” no longer mattered and no jury trial was necessary; therefore, the judge was able to dispose of the case on a judgment on the pleadings. Mason-Reel v. Simpson, 100 N.C. App. 651, 397 S.E.2d 755, 1990 N.C. App. LEXIS 1138 (1990).

Trespass to Real Property. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, trespass was proper because the litigant engaged in “social” conversation with the writer on the litigant’s property and did not ask the writer to leave. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

In the State’s action seeking to prevent landowners from trespassing on property over which they built a walkway and seeking a declaration of fee simple ownership, summary judgment was properly granted to the State where it was clearly established that the landowners’ deed contained no reference to an easem*nt. Moreover, the landowners’ claimed ownership of a right to use the property was defeated by a judgment that held a restraint on use of the property was a invalid, which judgment had occurred prior to when the landowners obtained their deed. State v. Willis, 163 N.C. App. 572, 594 S.E.2d 139, 2004 N.C. App. LEXIS 418 (2004).

Conspiracy. —

Summary judgment proper where plaintiff did not obtain the right to be valedictorian and offered nothing beyond bare assertions that defendants engaged in some conspiracy to keep her from attaining the position. Townsend v. Board of Educ., 118 N.C. App. 302, 454 S.E.2d 817, 1995 N.C. App. LEXIS 159 (1995).

Undue Influence Over Testator. —

Trial court did not err in granting partial summary judgment on the issue of undue influence regarding the execution of a will and a codicil as the caveators, who challenged the conveyance of the testator’s property to the university which provided care and legal assistance to the testator, failed to prove the existence of undue influence. In re Will of Campbell, 155 N.C. App. 441, 573 S.E.2d 550, 2002 N.C. App. LEXIS 1639 (2002).

Application for Certificate of Need. —

Where both parties forecast evidence to support recommendation by the administrative law judge and final agency decision which were contrary, a genuine issue of material fact existed regarding hospital’s application for a certificate of need, a contested case hearing would be required, and final agency inappropriately granted summary judgment for hospital. Presbyterian-Orthopaedic Hosp. v. North Carolina Dep't of Human Resources, 122 N.C. App. 529, 470 S.E.2d 831, 1996 N.C. App. LEXIS 460 (1996).

An application for certificate of need must comply with all review criteria, and where an application failed to show that it satisfied mandatory criteria, administrative law judge did not err in recommending summary judgment against applicant. Presbyterian-Orthopaedic Hosp. v. North Carolina Dep't of Human Resources, 122 N.C. App. 529, 470 S.E.2d 831, 1996 N.C. App. LEXIS 460 (1996).

Declaratory Judgment as to Right of Way. —

Summary judgment for the defendant was proper where the plaintiff’s claim was based on an original right of way which was incapable of being described and, therefore, patently ambiguous and void and where based, on their usage, the parties and their predecessors in title accepted a road, other than the original, as the right of way intended to be reserved by the recorded plat. Parrish v. Hayworth, 138 N.C. App. 637, 532 S.E.2d 202, 2000 N.C. App. LEXIS 784 (2000).

Negligent Entrustment Claim. —

Summary judgment was proper where there was insufficient evidence to show that car rental agency knew or should have known that driver was an “incompetent or reckless driver who is likely to cause injury to others”, an essential element of a negligent entrustment claim. Dwyer v. Margono, 128 N.C. App. 122, 493 S.E.2d 763, 1997 N.C. App. LEXIS 1283 (1997).

The Court of Appeals erred in reversing the trial court’s order granting summary judgment to defendant father of driver who hit plaintiff on the issue of negligent entrustment where the driver’s only moving violation, more than two years prior to the collision, and his no-fault involvement in three accidents could not by themselves support a conclusion that he was an incompetent or reckless driver likely to cause injury to others. Tart v. Martin, 353 N.C. 252 , 540 S.E.2d 332, 2000 N.C. LEXIS 900 (2000).

Summary judgment on the basis of laches was appropriate in favor of defendant school board which entered into contracts that included options to purchase land for consolidated schools in compliance with the results of its own vote to consolidate and with the passage of school bond issue in a general election while plaintiff taxpayer and citizens group waited to file suit challenging defendant’s compliance with G.S. 115C-72 . Save Our Schs. of Bladen County, Inc. v. Bladen County Bd. of Educ., 140 N.C. App. 233, 535 S.E.2d 906, 2000 N.C. App. LEXIS 1109 (2000).

No Duty Owed to Plaintiff. —

Summary judgment was appropriate where no genuine issue existed as to whether third-party defendants/contractors breached their duty to plaintiffs by failing to attach a 45 m.p.h. speed advisory sign to the “left lane closed ahead” sign; the third-party defendants/Department of Transportation had sole discretion in determining the signage for the construction project, and the only duty of the contractors was to exercise ordinary care in providing and maintaining reasonable warnings. Davis v. J.M.X., Inc., 137 N.C. App. 267, 528 S.E.2d 56, 2000 N.C. App. LEXIS 309 , aff'd, 352 N.C. 662 , 535 S.E.2d 356, 2000 N.C. LEXIS 752 (2000).

Summary judgment was properly granted to a property owner, dismissing a pedestrian’s suit to recover for injuries sustained when she slipped and fell in the owner’s icy parking lot, because the pedestrian’s own testimony demonstrated that she knew of the hazardous condition of the parking lot, and thus, there was no issue of genuine fact that the owner owed her no duty. Grayson v. High Point Dev. Ltd. P'ship, 175 N.C. App. 786, 625 S.E.2d 591, 2006 N.C. App. LEXIS 270 (2006).

No Showing of Breach of Legal Duty or Proximate Causation in a Wrongful Death Claim. —

Where a personal representative could not show that an assistant coach breached a legal duty or proximately caused a decedent’s death from heatstroke during a football practice, the personal representative could not prove a wrongful death claim; therefore, the assistant coach was entitled to summary judgment under G.S. 1A-1 , Rule 56(c). Draughon v. Harnett County Bd. of Educ., 158 N.C. App. 705, 582 S.E.2d 343, 2003 N.C. App. LEXIS 1227 (2003), aff'd, 358 N.C. 137 , 591 S.E.2d 520, 2004 N.C. LEXIS 8 (2004).

In an action for negligent misrepresentation filed by employees of a corporation who lost their jobs when the plant where they worked was closed, the trial court properly granted summary judgment in favor of the corporation that owned the plant and its former parent corporation because the corporation’s chief executive officer did not breach a fiduciary duty to the employees when he told them their jobs were secure, the employees failed to show that the CEO knew the plant would close when he made that statement or that the employees relied on the statement to their detriment, and as a result, the essential elements of negligent misrepresentation were missing. Jordan v. Earthgrains Baking Cos., 155 N.C. App. 762, 576 S.E.2d 336, 2003 N.C. App. LEXIS 25 (2003).

Evidence Not Sufficient. —

Where plaintiff’s evidence was properly excluded because service was not timely and plaintiff offered nothing to counter defendant’s evidence, summary judgment for the defendant was proper. Precision Fabrics Group, Inc. v. Transformer Sales & Serv., Inc., 120 N.C. App. 866, 463 S.E.2d 787, 1995 N.C. App. LEXIS 931 (1995), rev'd, 344 N.C. 713 , 477 S.E.2d 166, 1996 N.C. LEXIS 519 (1996).

Quantum Meruit. —

Trial court properly granted the owners’ summary judgment motion as to a subcontractor’s claim for damages under quantum meruit; even though the owners were enriched by the work performed by the subcontractor, a genuine issue of material fact did not exist as to whether any such enrichment was unjust because the owners made regular payments to the contractor. Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

In a landowner’s action to compel construction of a grade crossing, In a landowner’s action to compel construction of a grade crossing, summary judgment was properly granted because a railroad company was not required to construct a grade between the landowner’s tracts of land for the landowner’s sole access under G.S. 136-194 where the landowner’s property was not fenced or enclosed. Summerlin v. Norfolk S. Ry. Co., 161 N.C. App. 170, 588 S.E.2d 30, 2003 N.C. App. LEXIS 2000 (2003).

Premarital Agreement Barred Claims for Postseparation Support, Alimony And Equitable Distribution. —

Summary judgment was appropriate where a premarital agreement signed by the parties irrefutably barred the wife’s claims for postseparation support, alimony and equitable distribution; the language in the subject Agreement—drafted by the wife’s attorney—was sufficiently “express” to constitute a valid and enforceable waiver of the wife’s claims for postseparation support pursuant to G.S. 50-16.2 A and alimony pursuant to G.S. 50-16.3 A. Stewart v. Stewart, 141 N.C. App. 236, 541 S.E.2d 209, 2000 N.C. App. LEXIS 1439 (2000).

Negligent Sale of Alcohol. —

The trial court properly granted summary judgment in favor of defendant-store on plaintiff’s negligence claim where the record did not contain substantial evidence that the minor who purchased beer for his friends was “noticeably intoxicated” at the time of his purchase; the sole fact that the minor entered the defendant’s store and purchased alcoholic beverages twice on the same afternoon did not give rise to an inference that the minor was “noticeably intoxicated” at the time of the second purchase. Smith v. Winn-Dixie Charlotte, Inc., 142 N.C. App. 255, 542 S.E.2d 288, 2001 N.C. App. LEXIS 87 (2001).

No Issue As To Train Depot. —

The trial court properly granted summary judgment for defendants-railroad et al where no genuine issue existed as to whether a disputed depot was located within an easem*nt granted by an 1847 deed which was not extinguished and where the land, therefore, did not revert to the plaintiffs. Fisher v. Carolina S. R.R., 141 N.C. App. 73, 539 S.E.2d 337, 2000 N.C. App. LEXIS 1282 (2000).

Action Under Americans With disabilities Act and Rehabilitation Act. —

Summary judgment was properly granted in favor of two employers in a case brought under the Americans with Disabilities Act, 42 U.S.C.S § 12101 et seq., and the Rehabilitation Act of 1973 because a former employee was unable to show that the side effects of medication for attention deficit disorder substantially impaired the employee’s ability to work; the evidence showed that the employee did not complain of any side effects, and an accommodation was only requested on the date of termination. Wilkins v. Guilford County, 158 N.C. App. 661, 582 S.E.2d 74, 2003 N.C. App. LEXIS 1224 (2003).

Summary judgment was properly granted in favor of two former employers in an action brought under 42 U.S.C.S. § 1983 based on a violation of procedural due process because there was no property interest in employment where the evidence showed that a personnel rule was not adopted with the same formalities and characteristics of an ordinance. Wilkins v. Guilford County, 158 N.C. App. 661, 582 S.E.2d 74, 2003 N.C. App. LEXIS 1224 (2003).

Trial court did not err in granting the employer summary judgment on a quid pro quo claim where the employee failed to establish that her reaction to the harassment affected a tangible aspect of her employment. Norman v. N.C. Dep't of Admin., 257 N.C. App. 673, 811 S.E.2d 177, 2018 N.C. App. LEXIS 123 (2018).

Hostile Work Environment. —

Trial court did not err in granting the employer summary judgment on a Title VII hostile work environment claim where the employee was aware of the agency’s sexual harassment policy, but failed to take advantage of provided corrective opportunities, and there was no evidence that the supervisor threatened to retaliate against the employee for either denying his unwelcome advances or for reporting his conduct to management. Norman v. N.C. Dep't of Admin., 257 N.C. App. 673, 811 S.E.2d 177, 2018 N.C. App. LEXIS 123 (2018).

Summary judgment was properly granted to the employer on a retaliation claim where she had not engaged in a protected activity at any time prior to the exact moment in which adverse employment action was being taken against her. Norman v. N.C. Dep't of Admin., 257 N.C. App. 673, 811 S.E.2d 177, 2018 N.C. App. LEXIS 123 (2018).

Unlicensed Contractor. —

In an action in which a construction company sued property owners to collect the amount of a lien against the owners’ property, the trial court properly entered summary judgment in favor of the owners; the company was barred from recovering on a contract to build a house on the property because the company did not have a valid license at the time the contract was formed. Currin & Currin Constr., Inc. v. Lingerfelt, 158 N.C. App. 711, 582 S.E.2d 321, 2003 N.C. App. LEXIS 1228 (2003).

Trial court improperly dismissed, upon the City’s N.C. Civ. P. 12(b)(1), (b)(6), and (b)(2) motion to dismiss for lack of subject matter jurisdiction, an employee’s appeal of a decision by the Asheville Civil Service Board as the employee had a right to de novo review of the Board’s decision; however, the appellate court considered the City’s summary judgment motion and the evidence presented to the Board, as there were no factual issues and whether the Board had subject matter jurisdiction was a question of law, and concluded that the employee had not met his burden to prove subject matter jurisdiction as he resigned and had not been fired. Harper v. City of Asheville, 160 N.C. App. 209, 585 S.E.2d 240, 2003 N.C. App. LEXIS 1760 (2003).

Obstruction of Justice. —

Summary judgment in favor of a newspaper corporation, a publishing company, the publishing company’s president, a newspaper editor, and a newspaper staff writer in a litigant’s action for, inter alia, obstruction of justice was proper because there was no evidence that defendants’ acts, including the writer’s article about the litigant’s protracted litigation with a former spouse, had judicially impeded the litigant’s lawsuit. Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20, 2003 N.C. App. LEXIS 1983 (2003).

Summary Judgment Proper Where There Was No Right to Contribution. —

In plaintiff general contractor’s complaint against defendant architect, the only negligence alleged flowed from the architect to the contractor; since there were no joint tort-feasors, there was no right to contribution under G.S. 1B-1 against the architect; the trial court properly granted summary judgment to the architect under G.S. 1A-1 , Rule 56. Kaleel Builders, Inc. v. Ashby, 161 N.C. App. 34, 587 S.E.2d 470, 2003 N.C. App. LEXIS 1993 (2003).

Failure to Provide Lienholder With Notice of Tax Sale. —

Notice that a county would conduct a tax sale at a “storage location” to collect taxes due on a mobile home did not provide specificity required by G.S. 1-339.51 , and the trial court properly invalidated the sale of a mobile home that was valued at $50,000, but was sold for $5,000. Oakwood Acceptance Corp., LLC v. Massengill, 162 N.C. App. 199, 590 S.E.2d 412, 2004 N.C. App. LEXIS 118 (2004).

Department of Revenue Granted Summary Judgment on its Claim That Transfer Considered a Taxable Gift. —

As a property owner’s deed of property to his uncle was an unconditional transfer in fee simple, and the owner did not show any exception to the parol evidence rule, his claim that he transferred it in trust for his own benefit failed and the defendant North Carolina Department of Revenue was properly granted summary judgment on its claim that the transfer was a taxable gift. Joines v. Anderson, 161 N.C. App. 321, 587 S.E.2d 926, 2003 N.C. App. LEXIS 2053 (2003).

County, municipalities, and a contractor were entitled to summary judgment on a utility’s claims of wrongful interference with easem*nt, trespass to chattels, and negligence all resulting from damage occuring to the utility’s underground pipelines during excavation; the evidence failed to establish a genuine issue of material fact regarding the county’s and the municipalities’ direct liability for the utility’s damages and failed to demonstrate that the contractor was an agent of the county or the municipalities so as to support liability under respondeat superior. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 601 S.E.2d 915, 2004 N.C. App. LEXIS 1745 (2004).

Continuing Trespass. —

Electric membership corporation’s acts in erecting power poles, lowering a power line, and removing vegetation from a property owner’s land were not authorized by the property owner’s request to repair a downed line, or by his membership in the corporation, and thus amounted to a continuing trespass; a trial court’s denial of the corporation’s summary judgment motion in the property owner’s trespass action, as well as the trial court’s grant of partial summary judgment in favor of the property owner, were affirmed. Singleton v. Haywood Elec. Mbrshp. Corp., 357 N.C. 623 , 588 S.E.2d 871, 2003 N.C. LEXIS 1418 (2003).

Summary Judgment Proper in Trust Case. —

Trustee properly administered a couple’s separate trusts and distributed the residue of the surviving spouse’s trust to two universities rather than to a heir because the conditions stated in the trust for the heir to receive the residue had not occurred; thus, a grant of summary judgment in favor of the trustee was proper. Davenport v. Cent. Carolina Bank & Trust Co., 161 N.C. App. 666, 589 S.E.2d 367, 2003 N.C. App. LEXIS 2275 (2003).

In an action challenging collection of landfill fees by a county, summary judgment was properly granted for the county on the basis of res judicata where campground owners had paid the county in full for the landfill fees when faced with a prior suit for collection of those fee. The county’s voluntary dismissal of the suit upon payment of the fees was res judicata to the owners’ later attempt to challenge the constitutionality of charging the fees. Stafford v. County of Bladen, 163 N.C. App. 149, 592 S.E.2d 711, 2004 N.C. App. LEXIS 305 (2004).

Interpretation of a holographic will. —

In a dispute arising out of a holographic will drafted by the first decedent’s adoptive father, because the heirs of the second of two decedents, who was the first decedent’s grantee, failed to present any evidence that the land described in a holographic will and deeded to a grantee, was the land that they were entitled to as that grantee’s heirs, summary judgment was properly granted against them. Cameron v. Bissette, 190 N.C. App. 614, 661 S.E.2d 32, 2008 N.C. App. LEXIS 1017 (2008).

Violation of Contracts Clause. —

Trial court properly granted the tenured teachers summary judgment on a claim that the enactment of legislation repealing career status teachers’ benefits under former G.S. 115C-325 violated the Contracts Clause as career status rights were a valuable employment benefit that had vested in the teachers when they satisfied the law’s requirements, the repeal of that benefit substantially impaired contractual obligations by limiting the duration of the contracts to four years, and the State’s purported rationale, improving public schools, was flatly contradicted by the law’s terms and the parties’ affidavits. N.C. Ass'n of Educators, Inc. v. State, 241 N.C. App. 284, 776 S.E.2d 1, 2015 N.C. App. LEXIS 453 (2015), aff'd in part, modified, 368 N.C. 777 , 786 S.E.2d 255, 2016 N.C. LEXIS 314 (2016).

Automobile Accident. —

In a case dealing with an accident between defendant’s vehicle and the pedestrian, the trial court properly granted summary judgment in favor of defendant as no duty was imposed on defendant requiring her to yield her right-of-way merely because the pedestrian was oblivious to her danger; defendant was driving 35 miles per hour and only saw the pedestrian immediately before the collision, and without enough time to slow down; and the last clear chance doctrine was inapplicable because defendant could not see the pedestrian or predict her movement as the pedestrian was standing out of view in front of another vehicle just before she darted into the street. Patterson v. Worley, 265 N.C. App. 626, 828 S.E.2d 744, 2019 N.C. App. LEXIS 518 (2019).

D.Cases in Which Summary Judgment Held Improper

Additional Discovery Needed. —

Denial of motion for declaratory judgment, without prejudice, as premature was appropriate because, while the court did not foreclose the possibility that summary judgment was ultimately appropriate in the matter, the court concluded that such a determination was not to be made at that time in light of the incomplete factual record that then existed. Woodco*ck v. Cumberland County Hosp. Sys., 2022 NCBC 2, 2022 NCBC LEXIS 3 (N.C. Super. Ct. Jan. 20, 2022).

Explosion of Water Heater. —

Defendants were not entitled to judgment as a matter of law where the record did not clearly establish the inapplicability of the doctrine of res ipsa loquitur, where the evidentiary materials tended to show that the water heater in question was under the exclusive control and management of the defendants, as explosion of a water heater does not ordinarily happen if those who have the management of it use proper care. Under those circ*mstances the explosion itself would be some evidence of negligence on the part of those in control and would tend to establish a prima facie case requiring its submission to the jury. Evidence tending to explain the cause of the explosion merely accentuated the jury’s role in the controversy and the unwisdom of summary judgment. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972).

Medical Malpractice. —

In an action for medical malpractice, alleging that defendant negligently caused and continued plaintiff’s addiction to narcotics, there was sufficient evidence presented at the hearing to raise material issues of fact as to whether standard practice still regarded addiction as necessary in the treatment of plaintiff’s disease, and whether defendant knew or should have known that narcotics were not necessary to control plaintiff’s pain, so as to overcome a motion for summary judgment on the grounds that there was no negligence as a matter of law. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978).

In an action for medical malpractice, alleging that defendant negligently caused and continued plaintiff ’s addiction to narcotics, the evidence was sufficient to withstand defendant’s motion for summary judgment based on contributory negligence, even though plaintiff knowingly continued his addiction, where plaintiff believed it was necessary to be addicted for the rest of his life because defendant had told him so. Ballenger v. Crowell, 38 N.C. App. 50, 247 S.E.2d 287, 1978 N.C. App. LEXIS 2084 (1978).

Trial court erred by finding that a healthcare company which bought a hospital from a county was immune from suit by a minor who claimed that he suffered serious permanent injuries when he was born at the hospital, at a time when the hospital was owned and operated by the county. Odom v. Lane, 161 N.C. App. 534, 588 S.E.2d 548, 2003 N.C. App. LEXIS 2180 (2003).

Trial court erred in granting summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56, to defendants in a patient’s medical malpractice action; contrary to the findings of the trial court, the doctrine of res ipsa loquitur applied to the action, in which a doctor allegedly left a surgical sponge in the patient’s body following child birth. Fox v. Green, 161 N.C. App. 460, 588 S.E.2d 899, 2003 N.C. App. LEXIS 2193 (2003).

Professional Negligence. —

Client was not collaterally estopped from asserting a professional negligence claim against an attorney predicated on his failure to seek a directed verdict in the client’s favor at the trial of the underlying case as the issue decided in the earlier case was not identical to the issue in the instant case. The determination in the earlier case, alleging fraud against the client and three others, that sufficient evidence supported the jury’s verdict against the “defendants” was not a determination that sufficient evidence supported a finding that the client defrauded the customer; thus, summary judgment was improperly granted to the attorney. Royster v. McNamara, 218 N.C. App. 520, 723 S.E.2d 122, 2012 N.C. App. LEXIS 218 (2012).

Trial court erred in granting the tax preparers summary judgment on the ground that her professional negligence claims were barred by G.S. 1-15(c) where genuine issues of fact existed as to whether they were responsible for delivering, mailing, or providing plaintiff with her tax returns and whether and when they did so.

Summary judgment was improper on the merits of a professional negligence claim where genuine issues of fact existed as to whether the tax preparers were responsible for delivering, mailing, or providing plaintiff with her tax returns and whether and when they did so.

Intentional Tort. —

Summary judgment was inappropriate where the defendant’s act of shooting the plaintiff, although she intended only to hit his tire, was not only an intentional tort but also gave rise to a claim of negligence, which was not barred by the one year statute of limitation. Lynn v. Burnette, 138 N.C. App. 435, 531 S.E.2d 275, 2000 N.C. App. LEXIS 618 (2000).

Alienation of Affections. —

Summary judgment was improperly granted dismissing a former wife’s claim for alienation of affections filed in April 2003 on the ground that it was barred by the statute of limitations in G.S. 1-52(5) because, while the husband and the wife separated in 1998, the wife’s allegations in her sworn affidavit and verified complaint, to the effect that the husband expressed his desire to return to the marriage multiple times in October 1999 and September 2000, that the couple purchased a car together in May 1999, that the couple maintained joint finances after their separation, that they participated in marriage counseling until February 2001, and that the husband told the wife during their last counseling session that he was not planning on divorcing her. presented a genuine issue of material fact as to whether there was love and affection following the wife’s separation from the husband. Since a jury could determine that alienation did not occur until as late as February 2001 when the husband made the final decision to end the marriage and because the wife filed her complaint within three years of his decision, her claim for alienation of affections was not barred by G.S. 1-52(5) . McCutchen v. McCutchen, 360 N.C. 280 , 624 S.E.2d 620, 2006 N.C. LEXIS 2 (2006).

Trial court erred in dismissing a former wife’s claim of alienation of affections for lack of subject matter jurisdiction. There was an issue of fact as to the whether the alienation of affections occurred in North Carolina, which recognized the tort, or South Carolina, which did not, as the evidence showed that the paramour made clandestine phone calls from North Carolina to the husband in South Carolina, that sexual acts occurred at the paramour’s North Carolina condominium, and that the paramour and the husband took a trip to North Carolina during which they admitted to engaging in sexual intercourse. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385, 2009 N.C. App. LEXIS 212 (2009).

Criminal Conversation. —

Former wife’s criminal conversation claim filed against the paramour of the wife’s former husband was improperly dismissed on summary judgment. Instead, the trial court should have granted summary judgment in the wife’s favor as the evidence conclusively showed that the paramour engaged in sexual intercourse with the wife’s husband in North Carolina while the wife and the husband were still married and prior to the execution of a separation agreement. Jones v. Skelley, 195 N.C. App. 500, 673 S.E.2d 385, 2009 N.C. App. LEXIS 212 (2009).

Annulment. —

In a case in which plaintiff, in her capacity as the personal representative of the estate of the decedent, sought to annul the decedent’s marriage to defendant, arguing that the marriage was invalid because the officiant was not legally authorized to perform a wedding ceremony in North Carolina, the trial court erred in granting summary judgment to plaintiff because, under this statute, marriages in North Carolina could not be annulled at the summary judgment stage. Hill v. Durrett, 264 N.C. App. 367, 826 S.E.2d 470, 2019 N.C. App. LEXIS 266 (2019).

Deed of Trust. —

Where there was a genuine issue of fact as to the extent to which deed of trust secured amounts additional to purchase price of shopping center property summary judgment was improper. Dalton Moran Shook, Inc. v. Pitt Dev. Co., 113 N.C. App. 707, 440 S.E.2d 585, 1994 N.C. App. LEXIS 209 (1994).

Deed Interpretation. —

Order denying part of a soccer field developer’s summary judgment motion was reversed, given that pursuant to the unambiguous language of the deed, in which he was a successor or assign of the grantor, he could use both easem*nts to access an extension of the subdivision, of which the soccer fields were included. Terres Bend Homeowners Ass'n v. Overcash, 185 N.C. App. 45, 647 S.E.2d 465, 2007 N.C. App. LEXIS 1686 (2007).

Gift Tax. —

Summary judgment was improperly granted in favor of taxpayers who sought refunds of gift taxes they paid under protest on their transfers of interests in their residences to irrevocable trusts, retaining the rights to occupy the residences for five years or their lifetimes, whichever was shorter, as the Secretary of Revenue had, under G.S. 105-195 [repealed], discretion to determine how to value the interests retained by the taxpayers, and there was no showing that this discretion was abused, nor was it shown, under G.S. 105-267 [repealed] that the taxpayers were entitled to refunds because the taxes were assessed for improper purposes or were otherwise invalid or excessive. Downs v. State, 159 N.C. App. 220, 582 S.E.2d 638, 2003 N.C. App. LEXIS 1440 (2003), aff'd, 358 N.C. 213 , 593 S.E.2d 763, 2004 N.C. LEXIS 205 (2004).

Insurance Claim. —

In the declaratory judgment action, an issue of material fact pursuant to G.S. 1A-1 , Rule 56, remained as to whether the pilot was an insured party under the airport policies issued by the insurer to the pilot’s corporations; coverage was dependent upon the pilot acting on behalf of the corporations while flying the plane, and it was not clear if he was acting on the corporations’ behalf or as an independent contractor. Carlson v. Old Republic Ins. Co., 160 N.C. App. 399, 585 S.E.2d 497, 2003 N.C. App. LEXIS 1796 (2003).

When an insured was sued for refusing to give a party to whom it had rented a beach house access to the house, insurance policy coverage for the insured’s “invasion of the right of private occupancy” covered the insured’s conduct, as the phrase was ambiguous and would be interpreted against the insurer, even though the party to whom the house was rented had not taken possession of the house: thus, in the insured’s suit to require its insurer to defend and indemnify it, the insurer was improperly granted summary judgment. Hobbs Realty & Constr. Co. v. Scottsdale Ins. Co., 163 N.C. App. 285, 593 S.E.2d 103, 2004 N.C. App. LEXIS 373 , cert. dismissed, 358 N.C. 543 , 599 S.E.2d 47, 2004 N.C. LEXIS 832 (2004), cert. denied, 599 S.E.2d 907, 2004 N.C. LEXIS 898 (N.C. 2004).

Action Seeking to Void Deeds to Land. —

Trial court erred in granting partial summary judgment to plaintiffs pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), and in voiding defendants’ deeds to land; while it was true that a power of attorney granted to one of the defendants, a decedent’s niece, did not expressly grant her the right to make gifts of real property on behalf of the decedent, and the deeds would be void pursuant to G.S. 32A-14.1(b) if the conveyances were determined to be gifts, genuine issues of material fact existed on whether the conveyances were gifts or were transferred for consideration in the form of services to the decedent as recited in the deeds, as the trial court failed to consider those issues during the summary judgment hearing. Estate of Graham v. Morrison, 156 N.C. App. 154, 576 S.E.2d 355, 2003 N.C. App. LEXIS 81 (2003).

Easem*nt by Prescription. —

The absence of evidence establishing the requisite hostile nature of the use of the extensions over the defendants’ lands entitled the defendants to summary judgment. Yadkin Valley Land Co. v. Baker, 141 N.C. App. 636, 539 S.E.2d 685, 2000 N.C. App. LEXIS 1406 (2000).

Because the evidence was in conflict as to the use and as to whether the alleged use of the land in question was hostile, property owners were not entitled to summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) based on an easem*nt by prescription. Keener v. Arnold, 161 N.C. App. 634, 589 S.E.2d 731, 2003 N.C. App. LEXIS 2278 (2003).

Trial court improperly granted summary judgment to defendants, adjoining property owners and a water company, under G.S. 1A-1-56, holding that they held an underground easem*nt for a waterline on plaintiff property owner’s land because, inter alia: (1) defendants did not satisfy the requisite period for an easem*nt by prescription and were not entitled to rely upon the shorter period provided by the doctrine of color of title, which would have reduced the period of adverse possession from 20 to seven years under G.S. 1-38(a) ; and (2) defendants failed to forecast sufficient evidence that they were entitled to an easem*nt by estoppel. Woodring v. Swieter, 180 N.C. App. 362, 637 S.E.2d 269, 2006 N.C. App. LEXIS 2387 (2006).

Dispute Over Width of Easem*nt. —

While the location of an easem*nt was known, the precise width of the easem*nt was not defined in the deeds; thus, the reasonableness of the amount of space needed to effectuate the easem*nt’s purpose as set forth in the deeds raised a question of fact that precluded summary judgment under G.S. 1A-1 , N.C. R. Civ. P. 56(c) in favor of property owners who claimed the easem*nt. Keener v. Arnold, 161 N.C. App. 634, 589 S.E.2d 731, 2003 N.C. App. LEXIS 2278 (2003).

Property Listed in Settlement Agreement. —

Summary judgment for plaintiff ex-wife granting her certain disputed property was inappropriate where husband died before bequeathing the property to the children as promised, and the settlement agreement specifically provided for this scenario by allowing her, her father or her brother the option to purchase it should he fail to will it. Williamson v. Bullington, 139 N.C. App. 571, 534 S.E.2d 254, 2000 N.C. App. LEXIS 987 (2000), aff'd, 353 N.C. 363 , 544 S.E.2d 221, 2001 N.C. LEXIS 277 (2001).

Specific Performance. —

Summary judgment in an action seeking specific performance of vendor’s offer to purchase property was precluded by an issue of material fact as to whether an agreement was reached between the parties for the sale of two lots. Williford v. Atlantic Am. Properties, Inc., 129 N.C. App. 409, 498 S.E.2d 852, 1998 N.C. App. LEXIS 558 (1998), rev'd, 350 N.C. 58 , 510 S.E.2d 376, 1999 N.C. LEXIS 11 (1999).

Trial court erred in granting summary judgment to estate representative and second wife on the first wife and minor grandchild’s breach of contract action to execute a will because decedent’s failure to execute a will as he agreed to do in his separation agreement meant that part of the farm property that the decedent was going to pass to the son went to the second wife instead; had decedent done what he promised to do, that interest would have passed to the minor grandchild upon the death of the decedent who died after the son, and, thus, the minor grandchild had an action for specific performance of decedent’s promise to execute a will devising that property to the son, and summary judgment should have been granted in favor of the first wife and the minor grandchild. Tyndall-Taylor v. Tyndall, 157 N.C. App. 689, 580 S.E.2d 58, 2003 N.C. App. LEXIS 926 (2003).

In an action to determine whether plaintiff lender was entitled to possession of personal property, used to secure a loan, which was subsequently sold to a third party, the trial court erred in granting summary judgment for plaintiff where a genuine issue of fact existed as to whether plaintiff and defendant borrower intended their loan transaction of June, 1977, to renew, enlarge or extinguish note executed in April, 1976, by borrower which was secured by the property in question, since the nature of the second loan determined whether it was a future advance within the meaning of G.S. 25-9-307(3) and thus whether defendant purchaser from defendant borrower took the property in question free from plaintiff lender’s security interest. Spector United Employees Credit Union v. Smith, 45 N.C. App. 432, 263 S.E.2d 319, 1980 N.C. App. LEXIS 2650 (1980).

Promissory Note. —

Where, in an action to recover on a promissory note, defendant’s affidavit in support of her motion for summary judgment merely reiterated the allegations in her answer, and plaintiff ’s note verified the complaint, the evidence, when viewed in the light most favorable to the plaintiff, showed the existence of a triable issue, and defendant was not entitled to judgment as a matter of law. Liberty Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E.2d 672, 1972 N.C. App. LEXIS 2020 (1972).

Parol Agreement as to Payment of Notes. —

Where defendant’s evidence, taken in the light most favorable to him, established the execution of certain notes and security instruments accompanied by a prior or contemporaneous parol agreement as to the mode of payment and the fund from which it would be paid, evidence tending to show a continued course of dealings pursuant to this oral agreement was sufficient to have affected the result of the action, thereby creating a conflict between plaintiff ’s evidence and defendant’s evidence as to a material fact; a jury question was thus presented and the trial judge erred when he granted plaintiff ’s motion for summary judgment. North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

Certificate of Satisfaction. —

Court of Appeals of North Carolina is constrained to hold that an instrument erroneously satisfied of record under G.S. 45-36.6(b) is one for which the certificate of satisfaction was erroneously or mistakenly filed for any reason, even a unilateral mistake having nothing to do with whether the underlying obligation actually was fully paid off. Wells Fargo Bank, N.A. v. Am. Nat'l Bank & Trust Co., 250 N.C. App. 280, 791 S.E.2d 906, 2016 N.C. App. LEXIS 1104 (2016).

Insurance Claim. —

Summary judgment in favor of plaintiff/insurer was appropriate where the plaintiff’s policy language excluded coverage for injury or damage “which may reasonably be expected to result from the intentional act ....” and the evidence showed that the defendant fired multiple shots from a rifle at night in the direction of a prowler, approximately fifty feet away. A person, under such circ*mstances, could reasonably expect injury or damage to result from the intentional act. North Carolina Farm Bureau Mut. Ins. Co. v. Mizell, 138 N.C. App. 530, 530 S.E.2d 93, 2000 N.C. App. LEXIS 625 (2000).

Summary judgment was inappropriate where a genuine issue of material fact existed as to whether the policy covering a dump truck met any of the statutory definitions of a “private passenger motor vehicle” under G.S. 58-40-10(b) and could be stacked with the other policies under G.S. 20-279.21(b)(4). Erwin v. Tweed, 142 N.C. App. 643, 544 S.E.2d 803, 2001 N.C. App. LEXIS 175 (2001).

Antistacking Provision in Insurance Policy. —

Trial court erred in granting an insurer summary judgment on the issue of interpolicy stacking, under G.S. 58-40-10(1)(b)(1) , as a genuine issue of material fact existed as to whether a truck’s gross vehicle weight as specified by the manufacturer was less than 10,000 pounds. Erwin v. Tweed, 159 N.C. App. 579, 583 S.E.2d 717, 2003 N.C. App. LEXIS 1532 (2003), aff'd, 359 N.C. 64 , 602 S.E.2d 359, 2004 N.C. LEXIS 1127 (2004).

Immunity Waived through Insurance Purchase. —

To the extent that defendant town waived its immunity through the purchase of liability insurance, defendant town, and defendant police officer, as sued in his official capacity, were not immune from suit for his alleged negligent acts, and summary judgment was properly denied for such claims. Thompson v. Town of Dallas, 142 N.C. App. 651, 543 S.E.2d 901, 2001 N.C. App. LEXIS 191 (2001).

Subrogation Claim. —

In an insurance case, the trial court incorrectly granted summary judgment dismissing an insurance company’s subrogation claim against an alleged bailee, finding there was no bailment, because there was a genuine issue as to the existence of a bailment, given the alleged bailee’s testimony that he was in the process of performing work on the allegedly bailed vehicle at the time of its loss. Barnes v. Erie Ins. Exch., 156 N.C. App. 270, 576 S.E.2d 681, 2003 N.C. App. LEXIS 103 (2003).

School board was considered a “person” for purposes of an action brought by a student and her parents against it, pursuant to 42 U.S.C.S. § 1983, wherein it was claimed that the board had paid some claims while asserting immunity on others in violation of equal protection and due process rights, and accordingly, the board could not assert immunity against that claim; although such was not a determination that the student and her parents were necessarily entitled to relief in the action, the trial court’s grant of summary judgment was error. Ripellino v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 581 S.E.2d 88, 2003 N.C. App. LEXIS 1184 (2003), cert. denied, 358 N.C. 156 , 592 S.E.2d 694, 2004 N.C. LEXIS 103 (2004), cert. denied, 358 N.C. 156 , 2004 N.C. LEXIS 515 (2004).

Foreclosure. —

Where trial judge’s resolution against plaintiffs of the issue of fact as to whether or not they were in default in their payments under a deed of trust at the time of foreclosure made it impossible for plaintiffs to prevail and clearly affected the result of their action, summary judgment in favor of defendants would be reversed. Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972).

Summary judgment was inappropriate where the evidence was sufficient to create an issue of fact with respect to the delivery date of the foreclosure deeds; the plaintiff submitted affidavits indicating that the action was timely under G.S. 1-54(6) and the defendants submitted affidavits indicating that it was not, but neither submitted dated copies of the foreclosure deeds. Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454, 2000 N.C. App. LEXIS 501 (2000).

City’s Demolition of a House. —

Trial court erred in granting summary judgment to the city on the homeowner’s claim for violation of her due process rights because, although the homeowner’s house was in severe disrepair, the city violated her due process rights by demolishing the home without giving her notice, as the condition of the house did not pose an imminent threat to the public warranting its immediate demolition. Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372, 2003 N.C. App. LEXIS 1053 (2003).

Municipality was not entitled to partial summary judgment on a utility’s nuisance claim against the municipality for drilling wells that allegedly adversely affected the utility’s wells because the documents expressing an intent to convey ownership of all of the assets of the waterworks, specifically including the wells, were sufficient to give rise to a genuine issue of material fact as to whether the utility had the necessary property interest to assert a nuisance claim. Coastal Plains Utils., Inc. v. New Hanover County, 166 N.C. App. 333, 601 S.E.2d 915, 2004 N.C. App. LEXIS 1745 (2004).

Evidence of Negotiations with Defendant Insurer. —

Evidence tending to show that insurer offered to pay for loss, continually negotiated with plaintiff as to the amount thereof, and repeatedly assured plaintiff that her claim would be paid, was sufficient to show that there was a genuine triable issue as to whether defendants waived the requirements of the insurance policy relating to filing formal proof of loss and institution of the action within 12 months. Pennell v. Security Ins. Co., 18 N.C. App. 465, 197 S.E.2d 240, 1973 N.C. App. LEXIS 1904 (1973).

Where a question of fact existed as to when a breach of an agreement occurred and the statute of limitations began to run, summary judgment on the basis of the statute of limitations was inappropriate. Snyder v. Freeman, 300 N.C. 204 , 266 S.E.2d 593, 1980 N.C. LEXIS 1067 (1980).

Conversion. —

Summary judgment is inappropriately granted in an action for conversion when the evidence raises a genuine issue as to whether defendant’s possession of plaintiff’s property is authorized or wrongful. Gadson v. Toney, 69 N.C. App. 244, 316 S.E.2d 320, 1984 N.C. App. LEXIS 3386 (1984).

Trespass to Chattel. —

No genuine issue of material fact existed where plaintiff logger, who held an option to purchase lumber, admitted intentional interference with the defendants loggers’ valid possessory interest by entering the property and removing the timber without authorization; thus, plaintiff was not entitled to summary judgment on defendants’ counter-claim for trespass. Fordham v. Eason, 351 N.C. 151 , 521 S.E.2d 701, 1999 N.C. LEXIS 1252 (1999).

Burden of Resale. —

In an action by sellers of securities under a contract for sale to recover the purchase price of securities not accepted by buyer, the question of whether efforts to resell the securities would be unduly burdensome, or whether there was a readily available market for resale required weighing facts, rather than solely applying legal principles. Such facts do not lend themselves to disposition by summary judgment and must be resolved by a trier of fact. Atkins v. Mitchell, 91 N.C. App. 730, 373 S.E.2d 152, 1988 N.C. App. LEXIS 913 (1988).

Dispute over Validity of Contractor’s License. —

On appeal from summary judgment, where plaintiff contractor was licensed up to $175,000.00 when contract was executed and two months later secured an unlimited license, but plaintiff began construction during the two-month period, and where he presented his affidavit that he had passed the unlimited general contractor examination when the contract with the defendants was executed and that he had done approximately $2,800.00 worth of work before he was issued his unlimited license, so that the value of the work done by plaintiff was never in excess of his license limit and plaintiff was not, as evidenced by his license, incompetent to perform the work, plaintiff should have been allowed to prove his case if he could and was entitled if successful to recover to the extent of his unlimited license and defend the counterclaim. Dellinger v. Michal, 92 N.C. App. 744, 375 S.E.2d 698, 1989 N.C. App. LEXIS 53 (1989).

Breach of Contract Action. —

Summary judgment was improperly granted in favor of the real estate agents on the purchasers’ breach of contract claim where the purchasers presented sufficient evidence that the contract included a promise by the agents to provide access to the lake so as to withstand summary judgment. Wall v. Fry, 162 N.C. App. 73, 590 S.E.2d 283, 2004 N.C. App. LEXIS 61 (2004).

Trial court erred in granting summary judgment to the creditor on a breach of contract claim against the vehicle buyers where there was a genuine issue of material fact as to the condition of the vehicle at the time of sale. Ford Motor Credit Co. LLC v. McBride, 257 N.C. App. 590, 811 S.E.2d 640, 2018 N.C. App. LEXIS 106 (2018).

Trial court erred in granting summary judgment to seller on the buyers’ claim that a sales contract was based mistake of fact; the buyers could assert claims of mutual and unilateral mistake because the seller supplied a flawed survey that erroneously stated that the land sold to the buyers was not in flood zone, and the mistake of one party was sufficient to avoid a contract when the other party caused the mistake. Taylor v. Gore, 161 N.C. App. 300, 588 S.E.2d 51, 2003 N.C. App. LEXIS 2054 (2003).

Breach of Bailment Relationship. —

Where a paving company left equipment with a lot owner under an agreement for the lot owner to store the equipment, but the company did not have access to the equipment without the owner’s presence, the company relinquished exclusive possession of the equipment to the lot owner, and the lot owner moved the equipment without notice to the company and damaged it, summary judgment was inappropriate on the company’s bailment claim since the company showed that a bailment relationship may have existed and may have been breached. Atl. Contr. & Material Co. v. Adco*ck, 161 N.C. App. 273, 588 S.E.2d 36, 2003 N.C. App. LEXIS 2046 (2003).

Construction Contract. —

Where plaintiff asserted that it was entitled to summary judgment because it had substantially performed its contract but had not been paid as agreed, but even if all the claims made by plaintiff in support of his motion were accepted as true, questions of whether the incomplete performance by plaintiff was substantial performance and of the amount plaintiff was entitled to recover remained, summary judgment for plaintiff as to its claim against defendant would be reversed. Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985).

Because the language of the agreement is susceptible to differing yet, reasonable interpretations, the one broad, the other narrow, the contract was ambiguous and summary judgment was inappropriate. To resolve this ambiguity, the case was remanded to the superior court for the trier of fact to determine the intent of the parties. Schenkel & Shultz, Inc. v. Hermon F. Fox & Assocs., P.C., 362 N.C. 269 , 658 S.E.2d 918, 2008 N.C. LEXIS 337 (2008).

Dispute over Broker’s Commission. —

In a dispute over a broker’s entitlement to a commission, where the subject property was not actually leased until after the expiration of the listing and grace periods, even though the broker’s efforts procured the lease, while it was apparent that the broker and the property owner intended to contract around the general rule that a broker was entitled to a commission upon procuring a willing and able lessee for the property, summary judgment was not proper because there were genuine fact questions as to the property owner’s waiver of the listing period and the broker’s entitlement to a commission on a quantum meruit basis. Carolantic Realty, Inc. v. Matco Group, Inc., 151 N.C. App. 464, 566 S.E.2d 134, 2002 N.C. App. LEXIS 767 (2002).

Covenant Not to Compete. —

Where there was a genuine issue as to whether a covenant not to compete between the parties was supported by valuable consideration, summary judgment was improvidently entered. Stevenson v. Parsons, 96 N.C. App. 93, 384 S.E.2d 291, 1989 N.C. App. LEXIS 925 (1989).

Use of Road Where Dedication in Issue. —

Where plaintiff brought an action against her neighbor to enjoin his use of a road which ran against plaintiff’s property to defendant’s property, the material issue of whether road dedication had ever been accepted or rejected by an appropriate authority precluded summary judgment as a matter of law. Cavin v. Ostwalt, 76 N.C. App. 309, 332 S.E.2d 509, 1985 N.C. App. LEXIS 3850 (1985).

Town’s Duty to Maintain Annexed Roads. —

The trial court erred in granting summary judgment as to whether defendant-town had fulfilled its duty to maintain a street it annexed where the record was undeveloped as to the current state of repair of the street and the customary maintenance provided by defendant on similar streets. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497, 2000 N.C. App. LEXIS 1307 (2000).

Sovereign Immunity of Housing Authority. —

Court of appeals found that the trial court erroneously granted summary judgment in favor of the housing authority where the operation of low-income housing was a proprietary function and the housing authority could not assert sovereign immunity. Fisher v. Hous. Auth., 155 N.C. App. 189, 573 S.E.2d 678, 2002 N.C. App. LEXIS 1607 (2002), rev'd, 359 N.C. 59 , 602 S.E.2d 359, 2004 N.C. LEXIS 1128 (2004).

Separation Agreement Did Not Bar Divorce Action Where Issue of Duress Raised. —

Since plaintiff’s affidavit, averring duress or fear, raised a genuine issue of material fact as to the validity of a separation agreement asserted by defendant in bar of action for absolute divorce and an equitable distribution of marital property, the court improvidently granted defendant’s motion for summary judgment. Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985).

Evidence Sufficient to Show Voluntary Assumption of Marital Rights, Duties, and Obligations, Which Could be Sufficient to Show Cohabitation. —

Summary judgment under G.S. 1A-1 , Rule 56(e) was not proper with regard to an ex-husband’s motion to terminate an alimony order pursuant to G.S. 50-16.9 because the forecast of the evidence was sufficient to show the voluntary assumption of marital rights, duties, and obligations by a man and an ex-wife, which could be sufficient to establish cohabitation. Bird v. Bird, 363 N.C. 774 , 688 S.E.2d 420, 2010 N.C. LEXIS 34 (2010).

Action for Fraud. —

Summary judgment pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c) was improperly granted in a child’s claim against the father alleging fraud, among other things, as the action was not barred by res judicata and collateral estoppel, and the youngest child filed the action within three years of when the child reached the age of majority, as was required under G.S. 1-52 and G.S. 1-17(a). Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356, 2003 N.C. App. LEXIS 188 (2003).

Fraudulent Inducement of Real Estate Purchase. —

Where evidence was introduced to indicate that plaintiff purchasers of real estate had been induced through defendant’s fraudulent actions to forego inquiry regarding the property’s condition, it was improper for the trial court to grant defendant real estate company’s motion for summary judgment. Bolick v. Townsend Co., 94 N.C. App. 650, 381 S.E.2d 175, 1989 N.C. App. LEXIS 621 (1989).

Summary judgment was improperly granted against a buyer alleging fraudulent inducement where the buyer’s motion to compel discovery was pending before the trial court, and the depositions the buyer had noticed had not been held, because the buyer’s pursuit of discovery was not dilatory and could lead to relevant evidence. Ussery v. Taylor, 156 N.C. App. 684, 577 S.E.2d 159, 2003 N.C. App. LEXIS 326 (2003).

In a fraudulent concealment claim, conclusionary, self-serving denials of fraud contained in the defendant’s affidavits were clearly insufficient to show that the defendant was entitled to summary judgment. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

Automobile Accident. —

In action for damages arising out of automobile accident, trial court erred in granting defendant’s motion for summary judgment. Mobley v. Estate of Johnson, 111 N.C. App. 422, 432 S.E.2d 425, 1993 N.C. App. LEXIS 793 (1993).

Plaintiff’s evidence set out a prima facie case of negligence against the defendant, and summary judgment in favor of the latter was inappropriate, where a reasonable jury could find that plaintiff entered the intersection first and obtained the right-of-way, that the defendant breached the duty to yield to plaintiff or to keep a proper lookout by proceeding through the intersection, and that such breach was a proximate cause of injury to plaintiff. Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, 2000 N.C. App. LEXIS 547 (2000).

Although it found that the maintenance of stop signs constituted a discretionary function, thereby entitling the city to the defense of governmental immunity, the court reversed the grant of summary judgment in the city’s favor where it appeared from the record the city was covered by a liability insurance policy at the time of the collision at issue, thereby waiving immunity from suit. Cucina v. City of Jacksonville, 138 N.C. App. 99, 530 S.E.2d 353, 2000 N.C. App. LEXIS 547 (2000).

Summary judgment was inappropriate where a reasonable jury could find that plaintiff entered the intersection first and obtained the right-of-way, that defendant breached the duty to yield to plaintiff or to keep a proper lookout by proceeding through the intersection, and that such breach was a proximate cause of injury to plaintiff; similarly, question as to plaintiff’s contributory negligence because she knew that the stop sign controlling defendant’s direction of travel had been knocked down in an accident earlier that morning was for the jury. Cucina v. City of Jacksonville, 2000 N.C. App. LEXIS 310 (N.C. Ct. App. Apr. 4, 2000), sub. op., 138 N.C. App. 99, 530 S.E.2d 353, 2000 N.C. App. LEXIS 547 (2000).

Trial court erred in granting defendant’s motion for summary judgment based on a finding as a matter of law that plaintiff was contributorily negligent, where plaintiff’s evidence, considered in the light most favorable to her, indicated that: (1) plaintiff was driving at a reasonable speed; (2) the weather conditions were rainy, cloudy, with poor visibility; (3) the road was wet, hilly and curvy; (4) plaintiff observed defendant’s vehicle in the road when she was some 400-500 feet away; however, there was another car moving between them and she believed defendant’s vehicle to be moving; (5) when the vehicle between them turned off the road, and plaintiff realized she was much closer to defendant’s vehicle, she applied her brakes but could not stop; (6) plaintiff would have gone around defendant’s vehicle to the left, but there was oncoming traffic; (7) defendant’s vehicle had no lights burning to warn approaching traffic that it was stopped in the middle of the road; (8) when plaintiff attempted to go to the right, she ran into the truck parked there; and, (9) defendant was behind the wheel of his vehicle while plaintiff’s vehicle was approaching. Blue v. Canela, 139 N.C. App. 191, 532 S.E.2d 830, 2000 N.C. App. LEXIS 813 (2000).

The trial court erred in granting summary judgment for plaintiff-insurer where the statute of limitations for tort claims had no impact on the notification provisions of G.S. 20-279.21(b)(4), and the defendants, therefore, were not required to notify the insurer within that SOL, and where questions existed for the jury as to (1) whether the accident victims-defendants acted in good faith when they failed to give timely notice of their claim for underinsured motorist benefits and (2) whether the insurer’s ability to investigate and defend was materially prejudiced by the delay. Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 541 S.E.2d 503, 2000 N.C. App. LEXIS 1441 (2000), aff'd, 356 N.C. 571 , 573 S.E.2d 118, 2002 N.C. LEXIS 1252 (2002).

Injured motorcyclist’s attempt to avoid crashing into an alleged tortfeasor’s car was foreseeable after the alleged tortfeasor abruptly came to a standstill as the action would have likely resulted in some injury to the injured motorcyclist; thus, summary judgment in favor of the alleged tortfeasor was inappropriate. Pintacuda v. Zuckeberg, 159 N.C. App. 617, 583 S.E.2d 348, 2003 N.C. App. LEXIS 1512 (2003), rev'd, 358 N.C. 211 , 593 S.E.2d 776, 2004 N.C. LEXIS 197 (2004).

Trial court erred in granting injured persons’ summary judgment motion (and in denying an insurance company’s summary judgment motion) in a case seeking a declaration that the injured persons were allowed to stack the UIM coverage of their two policies; stacking of underinsured motorist (UIM) coverages is permitted where each of the multiple policies providing stackable UIM coverages were written at limits that exceeded the statutorily-required minimum liability amount, but where one of two policies at issue provided liability coverage with limits equal to the statutorily-required minimum amount of $25,000/$50,000, under G.S. 20-279.21(b)(4), no UIM coverage was available with that policy — thus, there was no additional UIM coverage available to be stacked with the $100,000 UIM coverage provided by the first policy, which was equal to the amount already paid under the tortfeasor’s exhausted liability policy. Purcell v. Downey, 162 N.C. App. 529, 591 S.E.2d 556, 2004 N.C. App. LEXIS 186 (2004).

Notice of Involvement of Underinsured Motorist. —

Summary judgment was inappropriate as to whether an insured’s late notice to an insurer of a possible underinsured motorist coverage claim barred recovery because there was a genuine issue of material fact as to whether the insured’s failure to timely notify the insurer was in good faith, as the insured was not aware that a tortfeasor was underinsured until shortly before notifying the insurer. Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571 , 573 S.E.2d 118, 2002 N.C. LEXIS 1252 (2002).

Single-Car Automobile Accident Which Only Driver Survived. —

Summary judgment was inappropriate although the defendant testified that decedent put his foot on hers, pushed the accelerator down and, thus, caused the accident that killed him, because a genuine issue of material fact existed as to whether the defendant’s driving, specifically her steering overcorrection, was willful and wanton and because it was inappropriate for the court to assign credibility to defendant’s sworn statements as a matter of law where the jury should have been allowed to consider the credibility of the accident reconstructionist. Thompson v. Bradley, 142 N.C. App. 636, 544 S.E.2d 258, 2001 N.C. App. LEXIS 169 (2001).

Summary judgment was improper under the theory of negligent entrustment where the evidence of son’s moving violation and three accidents created a material issue of fact as to whether his parents/defendants knew or should have known that their son was an unsafe driver. Tart v. Martin, 137 N.C. App. 371, 527 S.E.2d 708, 2000 N.C. App. LEXIS 326 , rev'd, 353 N.C. 252 , 540 S.E.2d 332, 2000 N.C. LEXIS 900 (2000).

Construction of Subdivision Access Roads. —

The trial court’s grant of summary judgment for defendant, implicitly finding as a matter of law that defendant could compel plaintiffs to construct access roads, was error where defendant had no authority under this section to require plaintiffs to pave, curb and gutter streets abutting their subdivision because these streets were not within plaintiffs’ subdivision, where plaintiffs were not fee simple owners of the roads deeded as a right-of-way to the State Highway Commission, and where there was no evidence that the defendants sought funds from the plaintiffs for road construction although they had that option. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497, 2000 N.C. App. LEXIS 1307 (2000).

Slip and Fall Accident. —

Summary judgment was inappropriate for defendant-store where the plaintiff, a slip-and-fall victim, presented sufficient evidence to raise an inference that the liquid detergent had been leaking for such a length of time that defendant should have known of its existence in time to have removed the danger or to have given proper warning of its presence; the plaintiff presented evidence that the liquid on which he slipped was detergent that had leaked from a container onto a shelf, down the side of the shelving structure, and onto the floor and that the liquid on the tops and sides of the shelves had already dried and become pink at the time of his fall. Furr v. K-Mart Corp., 142 N.C. App. 325, 543 S.E.2d 166, 2001 N.C. App. LEXIS 86 (2001).

Premises Liability. —

Summary judgment was improperly granted to a store, dismissing a customer’s suit to recover for injuries she sustained when she was struck by a buffer machine being operated in the store, because there were genuine issues of fact pertaining to whether the store properly warned the customer of the presence of the machine and whether the customer exercised care for her own safety. Freeman v. Food Lion, LLC, 173 N.C. App. 207, 617 S.E.2d 698, 2005 N.C. App. LEXIS 1919 (2005).

Summary judgment was properly granted to two contractors, dismissing a store customer’s suit to recover for injuries sustained when she was struck by a buffer machine being operated in the store by an employee of a floor cleaning company, because neither contractor owned or operated the store in which the customer’s injury occurred and because the customer failed to allege that the contractors were agents of the store; thus, the contractors had no duty to the customer and could not be held liable under a theory of premises liability. Freeman v. Food Lion, LLC, 173 N.C. App. 207, 617 S.E.2d 698, 2005 N.C. App. LEXIS 1919 (2005).

Negligence Action. —

Trial court erred in granting summary judgment to a retailer in a personal injury action where there was an issue of fact as to whether an employee of a floor maintenance subcontractor created a dangerous condition which caused the injured party’s fall. Robinson v. Wal-Mart Stores, Inc., 158 N.C. App. 299, 580 S.E.2d 426, 2003 N.C. App. LEXIS 1040 (2003).

Failure to Erect Traffic Sign. —

Summary judgment was inappropriate where genuine issues existed as to whether third-party defendants/Department of Transportation breached a duty by failing to have an advisory speed sign attached to the post of a “left lane closed ahead” sign and whether the signage was a proximate cause of the accident. Davis v. J.M.X., Inc., 137 N.C. App. 267, 528 S.E.2d 56, 2000 N.C. App. LEXIS 309 , aff'd, 352 N.C. 662 , 535 S.E.2d 356, 2000 N.C. LEXIS 752 (2000).

Negligently Erected Traffic Sign. —

North Carolina Industrial Commission erred in granting partial summary judgment to an injured party and in failing to remand the case to a deputy commissioner for an evidentiary hearing once the Commission determined that genuine issues of material fact remained as to whether the North Carolina Department of Transportation negligently erected a confusing stop sign at a railroad intersection. Norman v. N.C. DOT, 161 N.C. App. 211, 588 S.E.2d 42, 2003 N.C. App. LEXIS 2043 (2003), cert. denied, 358 N.C. 545 , 599 S.E.2d 404, 2004 N.C. LEXIS 813 (2004).

Permission to Drive Vehicle. —

Although driver of truck involved in accident did not have owner’s permission to drive truck and did not have a valid driver’s license, and owner’s insurance policy excluded coverage for persons using insured vehicle without reasonable belief that he or she was entitled to do so, insurance company was not entitled to summary judgment on its claim denying coverage as there was a question as to the driver’s subjective belief of being entitled to drive the vehicle. Aetna Cas. & Sur. Co. v. Nationwide Mut. Ins. Co., 95 N.C. App. 178, 381 S.E.2d 874, 1989 N.C. App. LEXIS 659 (1989), aff'd, 326 N.C. 771 , 392 S.E.2d 377, 1990 N.C. LEXIS 287 (1990).

Negligence of Fire Truck Driver. —

Summary judgment was improper in case based upon fire truck driver’s alleged negligence, where there was conflicting evidence as to whether or not the siren was on, whether or not the driver’s election of traffic lanes was prudent, and whether or not the speed at which the fire truck was travelling was excessive. Lopez v. Snowden, 96 N.C. App. 480, 386 S.E.2d 65, 1989 N.C. App. LEXIS 1032 (1989).

Suits Against Public Officials. —

Insurance policy purchased by Chatham County, North Carolina did not allow law enforcement employees to recover damages from the County, and because the County had not waived immunity from suit by law enforcement employees, the trial court properly ruled that a school resource officer (SRO) who worked for a sheriff’s department could not sue the sheriff or a chief deputy sheriff in their official capacities. However, the SRO engaged in a protected activity when he cooperated with federal agents who were investigating the sheriff, and the trial court erred when it dismissed a claim for wrongful discharge which the SRO filed against the sheriff in his individual capacity. Phillips v. Gray, 163 N.C. App. 52, 592 S.E.2d 229, 2004 N.C. App. LEXIS 248 (2004).

Fire Chief. —

Summary judgment in favor of defendant fire chief, in his official capacity, was inappropriate as the public duty doctrine is not available as a defense for a fire chief in his official capacity. Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600, 2001 N.C. App. LEXIS 227 (2001).

Wrongful Acts of Law Enforcement Officer. —

Language of the insuring agreement section of a law enforcement liability policy defined coverage for “wrongful acts” which were caused by an occurrence and arising out of the performance of an insured officer’s duties to provide law enforcement activities; since any ambiguity in the policy was to have been resolved in favor of the insured, claims based on sexual assaults committed by an insured police officer which arose out of his performance of law enforcement duties were covered under the policy, and a trial court’s summary judgment in favor of the insurance company was reversed. Young v. Great Am. Ins. Co., 162 N.C. App. 87, 590 S.E.2d 4, 2004 N.C. App. LEXIS 6 , rev'd, 359 N.C. 58 , 602 S.E.2d 673, 2004 N.C. LEXIS 1119 (2004).

Failure to Repair Garbage Truck. —

Trial court erred in granting summary judgment to municipal defendants in an action by the administrator’s of a decedent’s estate alleging gross negligence and wanton misconduct in the death of the decedent while employed by defendants; the decedent was killed when a dumpster on a garbage truck came partially detached and swung loose and pinned the decedent against the side of the garbage truck. Whitaker v. Town of Scot. Neck, 154 N.C. App. 660, 572 S.E.2d 812, 2002 N.C. App. LEXIS 1526 (2002), rev'd, 357 N.C. 552 , 597 S.E.2d 665, 2003 N.C. LEXIS 1263 (2003).

Burning Boat. —

Summary judgment in favor of defendant town was inappropriate, as the public duty doctrine no longer applies as a defense for the municipal provision of fire protection services. Willis v. Town of Beaufort, 143 N.C. App. 106, 544 S.E.2d 600, 2001 N.C. App. LEXIS 227 (2001).

Equitable Distribution. —

On appeal from summary judgment, the record did not provide basis for determination of whether defendant’s equitable distribution action would allow redress of injury complained of in her constructive trust proceeding, thus barring the constructive trust action under the doctrine of election of remedies; nonetheless, as the equitable distribution action had not been prosecuted to a final judgment, the trial court erred in entering summary judgment for the plaintiff and dismissing defendant’s counterclaim for a constructive trust. Lamb v. Lamb, 92 N.C. App. 680, 375 S.E.2d 685, 1989 N.C. App. LEXIS 59 (1989).

Resulting Trust. —

The trial court erred in granting summary judgment for the plaintiff heirs of nonpaying cotenant, where a genuine issue of material fact existed as to whether plaintiffs were entitled to a beneficial interest in property held jointly by their father and paying defendant tenants. Keistler v. Keistler, 135 N.C. App. 767, 522 S.E.2d 338, 1999 N.C. App. LEXIS 1226 (1999).

Wills. —

Where the caveators could not produce the revocatory writing, and where the decedent’s attorney could not recall writing the will, the trial court erred in granting the caveators summary judgment on the ground that the will revoked an earlier will that had excluded the caveators as beneficiaries. In re Will of McCauley, 356 N.C. 91 , 565 S.E.2d 88, 2002 N.C. LEXIS 550 (2002).

Although the evidence, when viewed in a light most favorable to the nonmoving parties, clearly indicated that the will, including the handwritten provisions, was found among the testator’s valuable papers and effects, that the handwritten notation evinced a clear intent regarding the desired disposition for the items contained in Article IV, and that those words explicitly showed that the will should be modified to eliminate Article IV, summary judgment was inappropriate because the phrase in the holographic codicil “begin[n]ing 7-7-03” was sufficiently ambiguous to create a genuine issue of material fact as to whether that provision indicated the required present testamentary intent. In re Will of Allen, 371 N.C. 665 , 821 S.E.2d 396, 2018 N.C. LEXIS 1030 (2018).

Conflict in Forecasts of Evidence as to Causation. —

In a private nuisance action, where there was a conflict in the forecasts of evidence as to causation offered by the parties’ affidavits, the question of causation was a question of fact and the court erred in granting summary judgment. Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, 1985 N.C. App. LEXIS 3614 (1985).

While it is not advisable to make findings of fact in a summary judgment proceeding, such findings do not render summary judgment invalid. Summey Outdoor Adv., Inc. v. County of Henderson, 96 N.C. App. 533, 386 S.E.2d 439, 1989 N.C. App. LEXIS 1116 (1989).

Validity of Right of First Refusal Provision as Question for Court. —

On a motion for summary judgment, whether a right of first refusal provision is valid or void is a question of law for the trial court. Pinehurst v. Regional Invs., 97 N.C. App. 114, 387 S.E.2d 222, 1990 N.C. App. LEXIS 27 (1990), aff'd, 330 N.C. 725 , 412 S.E.2d 645, 1992 N.C. LEXIS 57 (1992).

In an action for constructive fraud and constructive trust, summary judgment for defendant attorney was precluded by a genuine issue of material fact as to the existence of an attorney-client relationship at the time a referral fee arrangement was made. Booher v. Frue, 98 N.C. App. 585, 392 S.E.2d 105, 1990 N.C. App. LEXIS 435 (1990).

Intentional Infliction of Emotional Distress. —

Where plaintiff’s allegations were sufficient to establish that defendant’s behavior constituted more than insults or unflattering opinions the trial court erred in granting summary judgment in favor of defendant with regard to suit alleging intentional inflictions of emotional distress, as there were sufficient facts alleged to raise a question of whether defendant’s conduct was extreme and outrageous. Waddle v. Sparks, 100 N.C. App. 129, 394 S.E.2d 683, 1990 N.C. App. LEXIS 903 (1990), aff'd in part, rev'd, 331 N.C. 73 , 414 S.E.2d 22, 1992 N.C. LEXIS 152 (1992).

Libel and Slander. —

There was ample evidence to withstand summary judgment in the record of libel and slander case that defendant’s statement was false and made with actual malice; defendant’s firing of plaintiff within days after newspaper published a letter from plaintiff ’s mother in support of defendant’s political opponent, and the vehement character of the statement to the newspaper were some evidence of defendant’s ill-will toward plaintiff. Plaintiff also introduced evidence that he was competent at his job as assistant district attorney. Clark v. Brown, 99 N.C. App. 255, 393 S.E.2d 134, 1990 N.C. App. LEXIS 512 , writ denied, 327 N.C. 426 , 395 S.E.2d 675, 1990 N.C. LEXIS 781 (1990).

Genuine issues of material fact remained to be decided in a nurse’s claim for slander against her co-worker, where the co-worker filed a sexual harassment suit against her and there was conflicting evidence as to whether the nurse had harassed the co-worker; therefore, summary judgment was improperly granted. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Oral Guaranty. —

Trial court erred in granting the owners’ summary judgment motion as to an oral guaranty, as there were genuine issues of material fact concerning whether an oral guaranty was given and whether the main purpose rule was applicable, which would take the agreement out of the North Carolina Statute of Frauds, G.S. 22-1 . Watson Elec. Constr. Co. v. Summit Cos., LLC, 160 N.C. App. 647, 587 S.E.2d 87, 2003 N.C. App. LEXIS 1930 (2003).

Summary judgment was improper where plaintiffs forecast evidence that purchasing corporation was a “mere continuation” of the old corporation. Bryant v. Adams, 116 N.C. App. 448, 448 S.E.2d 832, 1994 N.C. App. LEXIS 1047 (1994).

Electronic Surveillance. —

Summary judgment was improperly granted on the husband’s claim that the wife illegally videotaped the husband’s in-home actions; because the husband did not establish that the videotaping included sound recordings, an issue of fact remained, as only oral communications were covered by G.S. 15A-287 . Kroh v. Kroh, 152 N.C. App. 347, 567 S.E.2d 760, 2002 N.C. App. LEXIS 915 (2002).

Where plaintiffs had reasonable notice that their agreement to charge pharmaceuticals to defendant’s open account was terminated, defendant was entitled to judgment as a matter of law; thus, the order of the trial court granting summary judgment in plaintiff’s favor was reversed. J.M. Smith Corp. v. Matthews, 123 N.C. App. 771, 474 S.E.2d 798, 1996 N.C. App. LEXIS 940 (1996).

Mitigation of Damages. —

Defendant’s affidavit presented a genuine issue of material fact as to the adequacy of plaintiff’s attempted mitigation of damages; therefore, the trial court incorrectly granted summary judgment on the issue of damages. RC Assocs. v. Regency Ventures, Inc., 111 N.C. App. 367, 432 S.E.2d 394, 1993 N.C. App. LEXIS 788 (1993).

Piercing the Corporate Veil. —

Because only one of several factors that can justify a court in piercing the corporate veil and treating a corporation as the alter ego of its officers or stockholders was established without contradiction by the materials in the record, the court correctly denied plaintiff ’s motion for summary judgment on the issue of piercing the corporate veil. Hoots v. Toms & Bazzle, 100 N.C. App. 412, 396 S.E.2d 820, 1990 N.C. App. LEXIS 1040 (1990).

In former board members’ derivative action suit against a non-profit corporation and current members of its board of directors, summary judgment in the current members’ favor was proper as G.S. 55A-7-40(a) did not include language allowing former directors to file a derivative action. Morris v. Thomas, 161 N.C. App. 680, 589 S.E.2d 419, 2003 N.C. App. LEXIS 2271 (2003).

Partnership Agreements. —

Trial court properly denied one partner’s motion for summary judgment as the other partners presented sufficient evidence of the partner’s breach of a partnership agreement, breach of fiduciary duty, constructive fraud, and unfair and deceptive trade practices to withstand the motion. Compton v. Kirby, 157 N.C. App. 1, 577 S.E.2d 905, 2003 N.C. App. LEXIS 369 (2003).

Grant of summary judgment was reversed and remanded because (1) it was unclear whether the trial court applied the newly adopted appropriate standard for judicial estoppel in determining that a partnership was judicially estopped from asserting ownership in stock based on a position taken by one of the partners in a bankruptcy proceeding; and (2) the trial court needed to address whether there was privity between the partner and the partnership. Whitacre P'ship v. BioSignia, Inc., 358 N.C. 1 , 591 S.E.2d 870, 2004 N.C. LEXIS 16 (2004).

Contributory Negligence of Paper Mill Operator. —

Genuine issues of fact, precluding summary judgment, existed as to whether a paper mill owner was contributorily negligent in operating a continuous digester system which the owner alleged had been improperly designed and installed by the system’s manufacturer. Federal Paper Bd. Co. v. Kamyr, Inc., 101 N.C. App. 329, 399 S.E.2d 411, 1991 N.C. App. LEXIS 11 (1991).

Action for Attorney’s Fees. —

Where there was a genuine issue of material fact as to whether a nurse anesthetist’s attorney fees were actually and necessarily incurred in connection with any threatened action seeking to hold her liable, summary judgment was not proper. Gregorino v. Charlotte-Mecklenburg Hosp. Auth., 121 N.C. App. 593, 468 S.E.2d 432, 1996 N.C. App. LEXIS 120 (1996).

Summary judgment was inappropriate where there were genuine issues of material fact with respect to plaintiff’s claim for attorney’s fees, specifically, the forecast of evidence produced by both parties did not establish whether plaintiff complied with the statutory notice requirement in G.S. 6-21.2(5) . Davis Lake Community Ass'n v. Feldmann, 138 N.C. App. 292, 530 S.E.2d 865, 2000 N.C. App. LEXIS 598 (2000).

Trial court erred in entering summary judgment in favor of ex-wife defendant on her cross-claim against ex-husband defendant for indemnity for plaintiffs’s attorneys’ fees in an underlying equitable distribution matter and for the expenses of litigation where genuine issues existed as to whether the ex-wife breached an agreement by failing to cooperate in the culmination of a settlement and whether she was solely liable for the contingency fee contract fees. Robinson, Bradshaw & Hinson, P.A. v. Smith, 139 N.C. App. 1, 532 S.E.2d 815, 2000 N.C. App. LEXIS 812 (2000).

For additional case in which summary judgment was held improper, see Wilkes County Vocational Workshop, Inc. v. United Sleep Prods., Inc., 321 N.C. 735 , 365 S.E.2d 292, 1988 N.C. LEXIS 236 (1988).

On State Constitutional Claims Not Included in Complaint. —

It was improper for the trial court to include a reference to plaintiff/bus driver’s state constitutional claims in its order granting summary judgment in favor of defendant/police officer where her amended complaint alleged North Carolina constitutional claims against the defendant/city through the police officer in his official capacity, not against him in his individual capacity. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601, 2000 N.C. App. LEXIS 1258 (2000).

False Arrest and Excessive Force. —

Summary judgment was improper on the plaintiff/bus driver’s claims of false arrest and excessive force where, although the defendant/police officer exited her bus and did not take her into custody, his “application of physical force,” coupled with his proclamation that she was under arrest, and her allegations that her exit was blocked, raise at least a genuine issue of material fact as to whether plaintiff was “arrested” for purposes of the Fourth Amendment. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601, 2000 N.C. App. LEXIS 1258 (2000).

Probable Cause. —

The defendant/police officer who stated that the plaintiff/bus driver was under arrest for violating G.S. 20-90(11) (now repealed) could later justify that arrest by reference to G.S. 20-114.1 because the offenses were sufficiently related; nevertheless, summary judgment was still not proper where he may have lacked probably cause to arrest her, even under this section; the facts tended to show that plaintiff was approached by an “angry,” “out of control” man wearing shorts, a plain t-shirt, and boots who “flashed something” at her “quickly;” asserted he was both a truck driver and a police officer; boarded her bus; ordered her to move her bus; grabbed her arm, unfastened her seatbelt, and told her she was under arrest; then exited her bus without writing her a citation or formally taking her into custody; furthermore, at no point did plaintiff acknowledge his status as a police officer nor was she even looking in his direction when he attempted to show her his badge at the window of the bus. Glenn-Robinson v. Acker, 140 N.C. App. 606, 538 S.E.2d 601, 2000 N.C. App. LEXIS 1258 (2000).

Assault, Battery and Negligence. —

Summary judgement was inappropriate for defendant-nephew who shoved and injured plaintiff-uncle where the record plainly reflected that defendant (through his attorney) approached plaintiff during the criminal suit stating that he did not intend the injurious act against plaintiff while, in the civil suit, defendant argued that he did intend the actions against plaintiff. Keech v. Hendricks, 141 N.C. App. 649, 540 S.E.2d 71, 2000 N.C. App. LEXIS 1399 (2000).

Assault and Battery. —

Summary judgment was not warranted on the basis that plaintiff’s suit was barred by the G.S. 1-54 statute of limitations for assault and battery where a genuine issue of material fact existed as to whether defendant intended to injure the plaintiff when he backed his vehicle into plaintiff’s truck on the highway. Britt v. Hayes, 142 N.C. App. 190, 541 S.E.2d 761, 2001 N.C. App. LEXIS 31 (2001).

Operation of a Coliseum. —

The defendant was not entitled to summary judgment on the basis of governmental immunity where, when viewed in the light most favorable to plaintiffs, the evidence demonstrates that defendant’s operation of a coliseum was a commercial enterprise and the operation of the Coliseum was a proprietary function. Pierson v. Cumberland County Civic Ctr. Comm'n, 141 N.C. App. 628, 540 S.E.2d 810, 2000 N.C. App. LEXIS 1394 (2000).

Claims Involving Multiple Defendants. —

In an action which an investor filed against an accountant, who worked for the investor’s former wife’s corporation, alleging that the accountant led him to believe the corporation was profitable so he would sign personal guarantees in favor of a bank that loaned the corporation money, the appellate court reversed the trial court’s judgment in favor of the accountant because there were questions of fact about whether a settlement the investor negotiated in a separate action against his former wife fully compensated the investor for his losses such that he was no longer entitled to recover damages from the accountant. Kogut v. Rosenfeld, 157 N.C. App. 487, 579 S.E.2d 400, 2003 N.C. App. LEXIS 741 (2003).

Employment. —

Trial court erred in granting an aggrieved employee summary judgment on a claim that G.S. 126-34.02 was unconstitutional as applied to him where he was an employee of the North Carolina Department of Public Safety, that agency was expressly exempt from the administrative hearing provisions of the APA, but the plain language of G.S. 126-5(h) provided the employee with a statutory right to a hearing before the Office of Administrative Hearings as to whether he was subject to the APA, and that right allowed him to address whether his exempt designation was proper via a contested case. Vincoli v. State, 250 N.C. App. 269, 792 S.E.2d 813, 2016 N.C. App. LEXIS 1102 (2016).

Breach of Contract Claim in Employment Case. —

Motion for partial summary judgment was properly denied in a breach of contract case because an at-will employee was permitted to bring a breach of contract action against an employer and its surety for deciding to terminate the employee in violation of public policy; the employee could have also brought a tort action for wrongful discharge if the employer had waived sovereign immunity. Hill v. Medford, 158 N.C. App. 618, 582 S.E.2d 325, 2003 N.C. App. LEXIS 1225 , rev'd, 357 N.C. 650 , 588 S.E.2d 467, 2003 N.C. LEXIS 1412 (2003).

Unsafe Employment Conditions. —

Trial court did not err in denying the owner and operator’s motions for summary judgment and directed verdict regarding the case of the worker who fell while working at their facility; since the owners controlled the facility they owed the employee a duty to see to it that the place where she fell was safe for passage, they did not show that she was contributorily negligent, and they did not show that the water on which she fell was an “open and obvious” condition that she should have discovered and avoided. Nelson v. Novant Health Triad Region, 159 N.C. App. 440, 583 S.E.2d 415, 2003 N.C. App. LEXIS 1492 (2003).

Validity of Separation Agreement. —

Because the allegations in plaintiff’s verified complaint challenged the validity of the separation agreement on grounds of lack of mental capacity, duress, and unconscionability, and defendant denied those allegations in his first verified responsive pleading and moved to dismiss plaintiff’s complaint by asserting the affirmative defenses that the separation agreement resolved the parties’ marital estate and waived their statutory rights to seek equitable distribution (ED) and spousal support, those pleadings raised genuine issues about the validity of the separation agreement, and defendant was not entitled to judgment as a matter of law on the ground that plaintiff’s ED and spousal support claims were waived in the separation agreement. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649, 2018 N.C. App. LEXIS 297 (2018).

IV.Burden on Motion for Summary Judgment

Movant Must Establish Lack of a Triable Issue. —

The burden is on the moving party to establish the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Haithco*ck v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Moore v. Bryson, 11 N.C. App. 260, 181 S.E.2d 113, 1971 N.C. App. LEXIS 1502 (1971); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Lineberger v. Colonial Life & Accident Ins. Co., 12 N.C. App. 135, 182 S.E.2d 643, 1971 N.C. App. LEXIS 1302 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); Hinson v. Jefferson, 20 N.C. App. 204, 200 S.E.2d 812, 1973 N.C. App. LEXIS 1517 (1973); Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Shook Bldrs. Supply Co. v. Eastern Assocs., 24 N.C. App. 533, 211 S.E.2d 472, 1975 N.C. App. LEXIS 2422 (1975); Freeman v. Sturdivant Dev. Co., 25 N.C. App. 56, 212 S.E.2d 190, 1975 N.C. App. LEXIS 2168 (1975); Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976); Cameron-Brown Capital Corp. v. Spencer, 31 N.C. App. 499, 229 S.E.2d 711, 1976 N.C. App. LEXIS 2025 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1240 (1977); Five Star Enters., Inc. v. Russell, 34 N.C. App. 275, 237 S.E.2d 859, 1977 N.C. App. LEXIS 1654 (1977); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Moye v. Thrifty Gas Co., 40 N.C. App. 310, 252 S.E.2d 837, 1979 N.C. App. LEXIS 2251 , cert. denied, 297 N.C. 611 , 257 S.E.2d 219, 1979 N.C. LEXIS 1503 (1979); Lula Conrad Hoots Mem. Hosp. v. Hoots, 40 N.C. App. 595, 253 S.E.2d 330, 1979 N.C. App. LEXIS 2291 , cert. denied, 297 N.C. 609 , 257 S.E.2d 218, 1979 N.C. LEXIS 1495 (1979); Smith v. Currie, 40 N.C. App. 739, 253 S.E.2d 645, 1979 N.C. App. LEXIS 2327 , cert. denied, 297 N.C. 612 , 257 S.E.2d 219, 1979 N.C. LEXIS 1509 (1979); English v. Holden Beach Realty Corp., 41 N.C. App. 1, 254 S.E.2d 223, 1979 N.C. App. LEXIS 2386 , cert. denied, 297 N.C. 609 , 257 S.E.2d 217, 1979 N.C. LEXIS 1493 (1979); Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627, 1979 N.C. App. LEXIS 2438 , rev'd, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981); Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207 , 274 S.E.2d 206, 1981 N.C. LEXIS 1044 (1981); Stanback v. Stanback, 53 N.C. App. 243, 280 S.E.2d 498, 1981 N.C. App. LEXIS 2576 (1981); Moore v. Crumpton, 306 N.C. 618 , 295 S.E.2d 436, 1982 N.C. LEXIS 1550 (1982); Sharpe v. Quality Educ., Inc., 59 N.C. App. 304, 296 S.E.2d 661, 1982 N.C. App. LEXIS 3113 (1982); Seay v. Allstate Ins. Co., 59 N.C. App. 220, 296 S.E.2d 30, 1982 N.C. App. LEXIS 3075 (1982); Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, 1984 N.C. App. LEXIS 3607 (1984), rev'd, 313 N.C. 320 , 327 S.E.2d 878, 1985 N.C. LEXIS 1536 (1985); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985); Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643, 1985 N.C. App. LEXIS 3639 (1985); Sanyo Elec., Inc. v. Albright Distrib. Co., 76 N.C. App. 115, 331 S.E.2d 738, 1985 N.C. App. LEXIS 3814 (1985); Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475, 1985 N.C. App. LEXIS 4022 (1985), aff'd, 316 N.C. 546 , 342 S.E.2d 522, 1986 N.C. LEXIS 2146 (1986); Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985); Hatfield v. Jefferson Std. Life Ins. Co., 85 N.C. App. 438, 355 S.E.2d 199, 1987 N.C. App. LEXIS 2616 (1987); Hall v. Post, 85 N.C. App. 610, 355 S.E.2d 819, 1987 N.C. App. LEXIS 2646 (1987), rev'd, 323 N.C. 259 , 372 S.E.2d 711, 1988 N.C. LEXIS 611 (1988); Higgins v. Higgins, 86 N.C. App. 513, 358 S.E.2d 553, 1987 N.C. App. LEXIS 2736 (1987), aff'd, 321 N.C. 482 , 364 S.E.2d 426, 1988 N.C. LEXIS 106 (1988); Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987); White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988); Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

The party moving for summary judgment has the burden of showing that there is no genuine issue as to any material fact. Miller v. Snipes, 12 N.C. App. 342, 183 S.E.2d 270, 1971 N.C. App. LEXIS 1356 , cert. denied, 279 N.C. 619 , 184 S.E.2d 883, 1971 N.C. LEXIS 901 (1971); Liberty Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E.2d 672, 1972 N.C. App. LEXIS 2020 (1972); Brawley v. Heymann, 16 N.C. App. 125, 191 S.E.2d 366, 1972 N.C. App. LEXIS 1653 , cert. denied, 282 N.C. 425 , 192 S.E.2d 835, 1972 N.C. LEXIS 976 (1972); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571, 1975 N.C. App. LEXIS 2261 (1975); Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978); Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984); Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985); Uzzell v. Integon Life Ins. Corp., 78 N.C. App. 458, 337 S.E.2d 639, 1985 N.C. App. LEXIS 4285 (1985), cert. denied, 317 N.C. 341 , 346 S.E.2d 149, 1986 N.C. LEXIS 2342 (1986).

When the party bringing the cause of action moves for summary judgment, he must establish that all of the facts on all of the essential elements of his claim are in his favor and that there is no genuine issue of material fact with respect to any one of the essential elements of his claim. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

In order to bear its burden of showing that it was entitled to summary judgment, a defendant is required to present a forecast of the evidence which is available at trial and which shows that there is no material issue of fact concerning an essential element of the plaintiff’s claim and that such element could not be proved by the plaintiff through the presentation of substantial evidence. Jenkins v. Stewart & Everett Theatres, Inc., 41 N.C. App. 262, 254 S.E.2d 776, 1979 N.C. App. LEXIS 2439 , cert. denied, 297 N.C. 698 , 259 S.E.2d 295, 1979 N.C. LEXIS 1535 (1979).

A defendant must show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the plaintiff’s claim for relief and that the plaintiff cannot prove the existence of that element. Blue Ridge Sportcycle Co. v. Schroader, 60 N.C. App. 578, 299 S.E.2d 303, 1983 N.C. App. LEXIS 2499 (1983).

A defendant is entitled to summary judgment only when he can produce a forecast of evidence, which when viewed most favorably to plaintiff would, if offered by plaintiff at trial, without more, compel a directed verdict in defendant’s favor, or if defendant can show through discovery that plaintiff cannot support his claim. Coats v. Jones, 63 N.C. App. 151, 303 S.E.2d 655, 1983 N.C. App. LEXIS 3029 , aff'd, 309 N.C. 815 , 309 S.E.2d 253, 1983 N.C. LEXIS 1468 (1983).

The moving party has the burden of establishing that there is no genuine issue as to any material fact, entitling him to judgment as a matter of law. This motion requires the movant and the opponent to produce a forecast of the evidence he will present at trial. Normile v. Miller, 63 N.C. App. 689, 306 S.E.2d 147, 1983 N.C. App. LEXIS 3195 (1983), modified, 313 N.C. 98 , 326 S.E.2d 11, 1985 N.C. LEXIS 1521 (1985).

The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact. His papers are meticulously scrutinized and all inferences are resolved against him. Joel T. Cheatham, Inc. v. Hall, 64 N.C. App. 678, 308 S.E.2d 457, 1983 N.C. App. LEXIS 3355 (1983); Boyce v. Meade, 71 N.C. App. 592, 322 S.E.2d 605, 1984 N.C. App. LEXIS 3902 (1984).

The party moving for summary judgment ultimately has the burden of establishing the lack of any triable issue of fact. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985).

The party moving for summary judgment has the burden of clearly establishing a lack of any triable issue of fact by the record proper before the court. Jennings Communications Corp. v. PCG of Golden Strand, Inc., 126 N.C. App. 637, 486 S.E.2d 229, 1997 N.C. App. LEXIS 610 (1997).

The moving party has the burden of clearly establishing the lack of any triable issue of fact; his papers are carefully scrutinized while those of the nonmoving party are indulgently regarded. Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407, 1985 N.C. App. LEXIS 3542 (1985); Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985).

The party moving for summary judgment has the burden of showing the lack of any genuine issue of material fact. If the movant is also the party bringing the action, he must establish his claim beyond any genuine dispute with respect to any material fact. Lambe-Young, Inc. v. Austin, 75 N.C. App. 569, 331 S.E.2d 293, 1985 N.C. App. LEXIS 3673 (1985).

A party moving for summary judgment must establish that there is no genuine issue of material fact or that it has a complete defense as a matter of law. Walker v. Westinghouse Elec. Corp., 77 N.C. App. 253, 335 S.E.2d 79, 1985 N.C. App. LEXIS 4104 (1985).

As the movants for summary judgment, plaintiffs had the burden of clearly establishing by the record presented to the court that there was no triable issue of fact in regard to defendants’ counterclaim. Rose v. Lang, 85 N.C. App. 690, 355 S.E.2d 795, 1987 N.C. App. LEXIS 2651 (1987).

Insurance and securities broker was properly granted summary judgment on investors’ vicarious liability claims against the broker because, assuming arguendo that an agent and a subagent committed torts in selling investments to the investors, the investors could not show that the broker was vicariously liable for the torts as the agent and subagent were independent contractors of the broker, and the investors knew that the agent and the subagent were not acting as agents of the broker. Estate of Redding v. Welborn, 170 N.C. App. 324, 612 S.E.2d 664, 2005 N.C. App. LEXIS 1001 (2005).

By the Record Before the Court. —

The party moving for summary judgment has the burden of clearly establishing the lack of any triable issue of fact by the record properly before the court. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Wall v. Flack, 15 N.C. App. 747, 190 S.E.2d 671, 1972 N.C. App. LEXIS 2021 (1972); Houck v. Overcash, 282 N.C. 623 , 193 S.E.2d 905, 1973 N.C. LEXIS 1134 (1973); Kiser v. Snyder, 17 N.C. App. 445, 194 S.E.2d 638, 1973 N.C. App. LEXIS 1380 , cert. denied, 283 N.C. 257 , 195 S.E.2d 689, 1973 N.C. LEXIS 943 (1973); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Reavis v. Campbell, 27 N.C. App. 231, 218 S.E.2d 873, 1975 N.C. App. LEXIS 1804 (1975); Furst v. Loftin, 29 N.C. App. 248, 224 S.E.2d 641, 1976 N.C. App. LEXIS 2454 (1976); Executive Leasing Assocs. v. Rowland, 30 N.C. App. 590, 227 S.E.2d 642, 1976 N.C. App. LEXIS 2309 (1976); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978); Robinson v. Duszynski, 36 N.C. App. 103, 243 S.E.2d 148, 1978 N.C. App. LEXIS 2412 (1978); Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247 , 266 S.E.2d 610, 1980 N.C. LEXIS 1069 (1980); Branch Banking & Trust Co. v. Creasy, 301 N.C. 44 , 269 S.E.2d 117, 1980 N.C. LEXIS 1142 (1980); co*ckerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980); Heritage Communities of N.C. Inc. v. Powers, Inc., 49 N.C. App. 656, 272 S.E.2d 399, 1980 N.C. App. LEXIS 3441 (1980); Miller v. Triangle Volkswagen, Inc., 55 N.C. App. 593, 286 S.E.2d 608, 1982 N.C. App. LEXIS 2252 (1982).

And Must Show Entitlement to Judgment. —

The moving party must clearly establish that there is no triable issue of fact and that it is entitled to judgment as a matter of law. Edwards v. Akion, 52 N.C. App. 688, 279 S.E.2d 894, 1981 N.C. App. LEXIS 2542 , aff'd, 304 N.C. 585 , 284 S.E.2d 518, 1981 N.C. LEXIS 1370 (1981); Derrick v. Ray, 61 N.C. App. 218, 300 S.E.2d 721, 1983 N.C. App. LEXIS 2652 (1983).

Every party moving for summary judgment has the burden of proving that it is entitled to judgment in its favor. Olney Paint Co. v. Zalewski, 29 N.C. App. 149, 223 S.E.2d 573, 1976 N.C. App. LEXIS 2398 (1976).

A party moving for summary judgment must show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Oestreicher v. American Nat’l Stores, Inc., 290 N.C. 118 , 225 S.E.2d 797 (1976); Hicks v. Old Republic Life Ins. Co., 29 N.C. App. 561, 225 S.E.2d 164 (1976); Stancill v. City of Washington, 29 N.C. App. 707, 225 S.E.2d 834 (1976); Boone v. Fuller, 30 N.C. App. 107, 226 S.E.2d 191 (1976); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54 (1980); Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705 (1980); Southern Nat’l Bank v. B & E Constr. Co., 46 N.C. App. 736, 266 S.E.2d 1 (1980); General Greene Inv. Co. v. Greene, 48 N.C. App. 29, 268 S.E.2d 810, cert. denied, 301 N.C. 235 , 283 S.E.2d 132 (1980); Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 269 S.E.2d 191 (1980); O’Neal v. Kellett, 55 N.C. App. 225, 284 S.E.2d 707 (1981); Ind-Com Elec. Co. v. First Union Nat’l Bank, 58 N.C. App. 215, 293 S.E.2d 215 (1982); Kaimowitz v. Duke L.J., 68 N.C. App. 463, 315 S.E.2d 82 (1984); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506 (1985); Bjornsson v. Mize, 75 N.C. App. 289, 330 S.E.2d 520, cert. denied, 314 N.C. 537 , 335 S.E.2d 13 (1985); Branch Banking & Trust Co. v. Kenyon Inv. Corp., 76 N.C. App. 1, 332 S.E.2d 186; Pardue v. Northwestern Bank, 77 N.C. App. 834, 336 S.E.2d 456 (1985); Surrette v. Duke Power Co., 78 N.C. App. 647, 338 S.E.2d 129 (1986). In accord with third paragraph in bound volume. See Lyles v. City of Charlotte, 120 N.C. App. 96, 461 S.E.2d 347, 1995 N.C. App. LEXIS 698 (1995), rev'd, 344 N.C. 676 , 477 S.E.2d 150, 1996 N.C. LEXIS 523 (1996).

Once movant establishes that there is no genuine issue of material fact, he must further prove that he is entitled to judgment as a matter of law. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976).

Because the burden is on the moving party to establish the lack of a triable issue of fact, the motion may only be granted where he shows that he is entitled to a judgment as a matter of law. Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972).

Movant for summary judgment must make it perfectly clear that he was entitled to judgment as a matter of law. Shook Bldrs. Supply Co. v. Eastern Assocs., 24 N.C. App. 533, 211 S.E.2d 472, 1975 N.C. App. LEXIS 2422 (1975); Lambert v. Duke Power Co., 32 N.C. App. 169, 231 S.E.2d 31, 1977 N.C. App. LEXIS 1877 , cert. denied, 292 N.C. 265 , 233 S.E.2d 392, 1977 N.C. LEXIS 1069 (1977).

In order to prevail on a summary judgment motion, defendant must carry the burden of establishing the lack of a genuine issue as to any material fact and entitlement to judgment as a matter of law. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980); Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982).

Regardless of Who Has Burden of Proof at Trial. —

Irrespective of who has the burden of proof at trial upon issues raised by the pleadings, upon a motion for summary judgment the burden is upon the party moving therefor to establish that there is no genuine issue of fact remaining for determination and that he is entitled to judgment as a matter of law. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289, 1974 N.C. App. LEXIS 1963 (1974); Keith v. S.S. Kresge Co., 29 N.C. App. 579, 225 S.E.2d 135, 1976 N.C. App. LEXIS 2571 (1976).

The burden is on the party moving for summary judgment to show that there is no genuine issue of material fact, regardless of who will have the burden of proof on the issue at trial. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976).

The burden to show that there is no genuine issue of material fact rests on the party moving for summary judgment, whether he or his opponent would at trial have the burden of proof on the issue concerned, and rests on him whether he is by it required to show the existence or nonexistence of facts. Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289, 1974 N.C. App. LEXIS 1963 (1974).

The movant must meet his burden of proof even when he does not have the burden of proof at trial. Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974).

When the party with the burden of proof moves for summary judgment, he must show that there are no genuine issues of fact, that there are no gaps in his proof, that no inferences inconsistent with his recovery arise from the evidence, and that there is no standard that must be applied to the facts by the jury. The party with the burden of proof who moves for summary judgment supported only by his own affidavits will ordinarily not be able to meet these requirements and thus will not be entitled to summary judgment. Parks Chevrolet, Inc. v. Watkins, 74 N.C. App. 719, 329 S.E.2d 728, 1985 N.C. App. LEXIS 3563 (1985).

If a defendant moves for summary judgment, he assumes the burden of producing evidence of the necessary certitude which negatives plaintiff’s claim. The burden of proof is reversed from what it would be if the case were at the trial stage. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

A defendant who moves for summary judgment assumes the burden of positively and clearly showing that there is no genuine issue as to any material fact and that he or she is entitled to judgment as a matter of law. A defendant may meet this burden by (1) proving that an essential element of the plaintiff’s case is nonexistent; or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim; or (3) showing that the plaintiff cannot surmount an affirmative defense which would bar the claim. Once the defendant satisfies his or her burden of proof, the burden shifts to the plaintiff to present a forecast of evidence which shows that a genuine issue of fact exists, or to provide an excuse for not so doing. Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242, 1985 N.C. App. LEXIS 3577 (1985), rev'd, 317 N.C. 321 , 345 S.E.2d 201, 1986 N.C. LEXIS 2791 (1986).

A defendant who moves for summary judgment may meet his burden by showing either that (1) an essential element of plaintiff’s claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim. Lyles v. City of Charlotte, 120 N.C. App. 96, 461 S.E.2d 347, 1995 N.C. App. LEXIS 698 (1995), rev'd, 344 N.C. 676 , 477 S.E.2d 150, 1996 N.C. LEXIS 523 (1996).

Party moving for summary judgment must establish the lack of any triable issue of material fact by proving that an essential element of the opposing party’s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim; the burden then shifts to the nonmoving party to produce a forecast of evidence demonstrating that the nonmoving party will be able to make out at least a prima facie case at trial. Smith-Price v. Charter Behavioral Health Sys., 164 N.C. App. 349, 595 S.E.2d 778, 2004 N.C. App. LEXIS 816 (2004).

Movant Must Negative Opponent’s Claim in Its Entirety. —

The party moving for summary judgment carries the burden of producing evidence of the necessary certitude to negative plaintiff’s claim in its entirety and thereby demonstrate a lack of genuine issues of material fact. Caldwell v. Deese, 26 N.C. App. 435, 216 S.E.2d 452, 1975 N.C. App. LEXIS 2070 , rev'd, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975).

And Establish Own Claim Beyond Dispute. —

The moving party must establish his claim beyond any genuine dispute with respect to any of the material facts. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

Movant Shifted Burden by Showing Opponent Lacked Standing. —

Because defendant met its summary judgment burden by showing that there was no genuine issue of material fact due to lack of standing, the burden shifted to plaintiff. Landfall Group Against Paid Transferability v. Landfall Club, Inc., 117 N.C. App. 270, 450 S.E.2d 513, 1994 N.C. App. LEXIS 1208 (1994).

Burden of Proof on Movant. —

The burden on the party moving for summary judgment may be carried by proving that an essential element of the opposing party’s claim is nonexistent. Executive Leasing Assocs. v. Rowland, 30 N.C. App. 590, 227 S.E.2d 642, 1976 N.C. App. LEXIS 2309 (1976).

When the party without the burden of proof on the substantive claim or defense moves for summary judgment he is entitled to it if he can meet the burden of proving that any one or more of the essential elements of the opposing party’s claim or defense is nonexistent. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

A defendant-movant must produce evidence of the necessary certitude which negatives any one or more of the essential elements of plaintiff’s claim. Edwards v. Northwestern Bank, 39 N.C. App. 261, 250 S.E.2d 651, 1979 N.C. App. LEXIS 2501 (1979).

In order to prevail, a movant must establish the absence of any material issue of fact. One way he can meet this burden is by showing the nonexistence of an essential element of the plaintiff’s claim for relief. Southerland v. Kapp, 59 N.C. App. 94, 295 S.E.2d 602, 1982 N.C. App. LEXIS 2854 (1982).

The party moving for summary judgment meets its burden by proving that an essential element of the opposing party’s claim is non-existent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of the claim. Estate of Mullis v. Monroe Oil Co., 349 N.C. 196 , 505 S.E.2d 131, 1998 N.C. LEXIS 592 (1998).

Showing That Opponent Cannot Produce Evidence to Support Its Claim Satisfies Burden. —

The movant can satisfy his burden either by proving that an essential element of the opposing party’s claim is nonexistent or by showing, through discovery, that the opposing party cannot produce evidence to support an essential element of its claim. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Harris v. Barham, 35 N.C. App. 13, 239 S.E.2d 717, 1978 N.C. App. LEXIS 2854 (1978); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Roumillat v. Simplistic Enters., 331 N.C. 57 , 414 S.E.2d 339, 1992 N.C. LEXIS 149 (1992); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980); co*ckerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980); Spivey v. White Motor Corp., 46 N.C. App. 313, 264 S.E.2d 772, 1980 N.C. App. LEXIS 2824 (1980); Gregory v. Perdue, Inc., 47 N.C. App. 655, 267 S.E.2d 584, 1980 N.C. App. LEXIS 3163 (1980); Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399, 1980 N.C. App. LEXIS 3402 (1980), cert. denied, 276 S.E.2d 283, 1981 N.C. LEXIS 1559 (N.C. 1981); Gelder & Assocs. v. Huggins, 52 N.C. App. 336, 278 S.E.2d 295, 1981 N.C. App. LEXIS 2441 (1981); Tyson v. North Carolina Nat'l Bank, 53 N.C. App. 189, 280 S.E.2d 478, 1981 N.C. App. LEXIS 2571 (1981), modified, 305 N.C. 136 , 286 S.E.2d 561, 1982 N.C. LEXIS 1250 (1982); Asheville Contracting Co. v. City of Wilson, 62 N.C. App. 329, 303 S.E.2d 365, 1983 N.C. App. LEXIS 2929 (1983); Byrd Motor Lines v. Dunlop Tire & Rubber Corp., 63 N.C. App. 292, 304 S.E.2d 773, 1983 N.C. App. LEXIS 3050 (1983); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988); Evans v. Appert, 91 N.C. App. 362, 372 S.E.2d 94, 1988 N.C. App. LEXIS 878 (1988).

A party moving for summary judgment may prevail if it meets the burden (1) of proving that an essential element of the opposing party’s claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852, 1982 N.C. App. LEXIS 2679 (1982); 53 N.C. App. 492, 281 S.E.2d 86 (1981); Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Olney Paint Co. v. Zalewski, 29 N.C. App. 149, 223 S.E.2d 573, 1976 N.C. App. LEXIS 2398 (1976); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978).

To succeed in a summary judgment motion, the movant has the burden of showing, based on pleadings, depositions, answers, admissions, and affidavits, there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Defendant may meet this burden by showing either (1) an essential element of the nonmovant’s claim is nonexistent, (2) the nonmovant cannot produce evidence to support an essential element of his claim, (3) or the nonmovant cannot surmount an affirmative defense which would bar his claim. Taylor v. Ashburn, 112 N.C. App. 604, 436 S.E.2d 276, 1993 N.C. App. LEXIS 1195 (1993), cert. denied, 336 N.C. 77 , 445 S.E.2d 46, 1994 N.C. LEXIS 192 (1994).

The party seeking summary judgment must establish the absence of any triable issue; this burden may be met by (1) proving the nonexistence of an essential element of the opposing party’s claim, (2) establishing through discovery that the opponent cannot produce evidence supporting an essential element, or (3) showing that the opposing party cannot overcome an affirmative defense that would bar the claim. N.C. Farm Bureau Mut. Ins. Co. v. Allen, 146 N.C. App. 539, 553 S.E.2d 420, 2001 N.C. App. LEXIS 988 (2001).

Or to Surmount an Affirmative Defense. —

A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407, 1985 N.C. App. LEXIS 3542 (1985); Walker v. Durham Life Ins. Co., 90 N.C. App. 191, 368 S.E.2d 43, 1988 N.C. App. LEXIS 448 (1988).

Defendant may meet its burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim or cannot surmount an affirmative defense which would bar the claim. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Sanyo Elec., Inc. v. Albright Distrib. Co., 76 N.C. App. 115, 331 S.E.2d 738, 1985 N.C. App. LEXIS 3814 (1985); Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

Denials In Unverified Answer Insufficient To Withstand Motion For Summary Judgment. —

As defendant’s answer to the complaint was not verified, the denials contained in that answer were insufficient to defeat plaintiffs’ motion for summary judgment. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

Question of when the burden will shift to the opposing party may depend on the type of proof utilized by the moving party. Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

Failure to Respond Not Always Fatal. —

Not every failure of the opposing party to respond to a motion for summary judgment will require the entry of summary judgment. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Under some circ*mstances the trial judge may properly deny the motion for summary judgment even when the nonmoving party fails to offer competent counter-affidavits or other evidence. Baumann v. Smith, 298 N.C. 778 , 260 S.E.2d 626, 1979 N.C. LEXIS 1419 (1979).

Granting of summary judgment where the adverse party does not respond to the motion “by affidavits or as otherwise provided in this rule” is proper only “if appropriate” under all of the circ*mstances of the case. Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, 1971 N.C. App. LEXIS 1504 , cert. denied, 279 N.C. 395 , 183 S.E.2d 243, 1971 N.C. LEXIS 825 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971).

On a motion for summary judgment the moving party has the burden of establishing that there is no genuine issue as to any material fact. Once the moving party has met its burden, the opposing party may not rest on the mere allegations or denials of his pleading. Instead, the opposing party must set forth specific facts showing that there is a genuine issue for trial, either by affidavits or as otherwise provided in this rule. If the opposing party is unable to present the necessary opposing material he may seek the protection of section (f) of this rule, which gives the trial court the discretion to refuse the motion for judgment or order a continuance. Gillis v. Whitley's Disct. Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661, 1984 N.C. App. LEXIS 3643 (1984).

Mere failure of the nonmoving party to respond with opposing affidavits or depositions does not automatically mean that summary judgment is appropriate. The moving party must still succeed on the strength of its evidence, and when that evidence contains material contradictions or leaves questions of credibility unanswered the movant has failed to satisfy its burden. Perry v. Ayco*ck, 68 N.C. App. 705, 315 S.E.2d 791, 1984 N.C. App. LEXIS 3426 (1984).

The mere failure of the nonmoving party to respond with opposing affidavits or depositions does not automatically mean that summary judgment is appropriate, and the moving party must still succeed on the strength of its evidence. Cellu Prods. Co. v. G.T.E. Prods. Corp., 81 N.C. App. 474, 344 S.E.2d 566, 1986 N.C. App. LEXIS 2321 (1986).

If movant fails to carry his burden of proof, the opposing party does not have to respond and summary judgment is not proper regardless of whether he responds or not. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980); Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985).

If the moving party fails in his showing, summary judgment is not proper regardless of whether the opponent responds. Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Brown v. Fulford, 311 N.C. 205 , 316 S.E.2d 220, 1984 N.C. LEXIS 1711 (1984).

On motion for summary judgment, movant has the burden of showing the absence of a genuine issue as to any material fact. When movant fails to carry this burden, summary judgment should be denied, even though no opposing evidence is presented. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

If the movant’s forecast of evidence which he has available for presentation at trial fails to establish that there is no genuine issue of fact remaining for determination, summary judgment is not proper, whether or not the opponent responds. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972).

Until defendant-movant meets his initial burden, the opposing party, even though he may bear the burden of proof at trial, need not respond with evidence showing further support for his claim and a grant of summary judgment in defendant’s favor is improper. Edwards v. Northwestern Bank, 39 N.C. App. 261, 250 S.E.2d 651, 1979 N.C. App. LEXIS 2501 (1979).

Motion for summary judgment should ordinarily be denied even though the opposing party makes no response, if: (1) the movant’s supporting evidence is self-contradictory or circ*mstantially suspicious or the credibility of a witness is inherently suspect either because he is interested in the outcome of the case and the facts are peculiarly within his knowledge or because he has testified as to matters of opinion involving a substantial margin for honest error, (2) there are significant gaps in the movant’s evidence or it is circ*mstantial and reasonably allows inferences inconsistent with the existence of an essential element, or (3) although all the evidentiary or historical facts are established, reasonable minds may still differ over their application to some principle such as the prudent man standard for negligence cases. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978).

Nonmovant does not have burden of coming forward until movant produces evidence of the necessary certitude which negatives the claim of the party opposing the motion against it in its entirety. Whitley v. Cubberly, 24 N.C. App. 204, 210 S.E.2d 289, 1974 N.C. App. LEXIS 1963 (1974); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571, 1975 N.C. App. LEXIS 2261 (1975); Mace v. Bryant Constr. Corp., 48 N.C. App. 297, 269 S.E.2d 191, 1980 N.C. App. LEXIS 3245 (1980).

The burden rests on the movant to make a conclusive showing; until then, the nonmovant has no burden to produce evidence. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

If the moving party satisfies its burden of proof, then the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. The nonmoving party may not rest upon the mere allegations of his pleadings. Taylor v. Greensboro News Co., 57 N.C. App. 426, 291 S.E.2d 852, 1982 N.C. App. LEXIS 2679 (1982); 316 N.C. 374 , 342 S.E.2d 889 (1986); White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

Once the movant for summary judgment demonstrates that no material issues of fact exist, the burden shifts to the nonmovant to set forth specific facts showing that genuine issues of fact remain for trial. Orient Point Assocs. v. Plemmons, 68 N.C. App. 472, 315 S.E.2d 366, 1984 N.C. App. LEXIS 3303 (1984); Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986); Walker v. Durham Life Ins. Co., 90 N.C. App. 191, 368 S.E.2d 43, 1988 N.C. App. LEXIS 448 (1988); Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 368 S.E.2d 391, 1988 N.C. App. LEXIS 539 (1988), aff'd, 325 N.C. 202 , 381 S.E.2d 698, 1989 N.C. LEXIS 375 (1989).

When a party moves for summary judgment on a claim and properly supports all the essentials of that claim with evidence, it falls to the opposing party to present contradictory evidence or to show by facts that the movant’s evidence is insufficient or unreliable. And when the opposing party fails to do that and it plainly appears from the pleadings and evidence presented that the movant is entitled to recover on the claim, summary judgment is proper. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

The moving party has the burden of showing that no material issues of fact exist. In rebuttal, the nonmovant must then set forth specific facts showing that genuine issues of fact remain for trial. Southeastern Asphalt & Concrete Co. v. American Defender Life Ins. Co., 69 N.C. App. 185, 316 S.E.2d 311, 1984 N.C. App. LEXIS 3394 (1984).

If the movant’s burden is carried, the burden is on the opposing party to show that there is a question of material fact that can only be resolved by proceeding to trial. Branch Banking & Trust Co. v. Kenyon Inv. Corp., 76 N.C. App. 1, 332 S.E.2d 186, 1985 N.C. App. LEXIS 3720 (1985).

The burden is upon the party moving for summary judgment to show that there is no genuine issue of law. If the movant meets this burden, the burden then shifts to the nonmovant to set forth specific facts showing that there is a genuine issue of material fact for trial. BM & W of Fayetteville, Inc. v. Barnes, 75 N.C. App. 600, 331 S.E.2d 308, 1985 N.C. App. LEXIS 3667 (1985).

Once the moving party has submitted materials in support of the motion the burden shifts to the opposing party to produce evidence establishing that the motion should not be granted. Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

When Nonmovant Must Come Forward with Forecast of Evidence. —

On a motion for summary judgment, it is only when the movant’s evidence, considered alone, is sufficient to establish his right to judgment as a matter of law that the nonmovant must come forward with a forecast of his own evidence. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979).

When movant presents an argument or defense supported by facts which would entitle him to judgment as a matter of law, the party opposing the motion must present a forecast of the evidence which will be available for presentation at trial and which will tend to support his claim for relief. Cone v. Cone, 50 N.C. App. 343, 274 S.E.2d 341, 1981 N.C. App. LEXIS 2119 , cert. denied, 302 N.C. 629 , 280 S.E.2d 440, 1981 N.C. LEXIS 1243 (1981).

If the moving party forecasts such evidence as would require a directed verdict for the movant at trial, the party opposing the motion must file papers which forecast evidence which would prevent a directed verdict at trial in order to prevent summary judgment in favor of the movant. Buck v. Tweetsie R.R., 44 N.C. App. 588, 261 S.E.2d 517, 1980 N.C. App. LEXIS 2492 (1980).

Until defendant has forecast evidence tending to establish his right to judgment as a matter of law, claimant is not required to present any evidence to support his claim for relief. However, once defendant forecasts evidence which will be available to him at trial and which tends to establish his right to judgment as a matter of law, claimant must present a forecast of the evidence which will be available for presentation at trial and which will tend to support his claim for relief. If claimant does not respond at that time with a forecast of evidence which will be available at trial to show that defendant is not entitled to judgment as a matter of law, summary judgment should be entered in favor of defendant. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979).

If the party moving for summary judgment successfully carries its burden of proof of showing that there is no genuine issue as to any material fact, the opposing party, by affidavits or otherwise, as provided by this rule, must set forth specific facts showing that there is a genuine issue for trial. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

In addition to no issue of fact being present, to grant summary judgment a court must find “that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law.” Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983).

Once a defendant has properly pleaded the statute of limitations, the burden is then placed upon the plaintiff to offer a forecast of evidence showing that the action was instituted within the permissible period after the accrual of the cause of action. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

When the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

Once plaintiff has made and supported its motion for summary judgment, under section (e) of this rule, the burden is then on the defendant to introduce evidence in opposition to the motion setting forth specific facts showing that there is a genuine issue for trial. The defendant then must come forward with a forecast of his own evidence. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

When defendant has adduced evidence negating an essential element of plaintiff’s proof, plaintiff must at a minimum come forward with competent evidence that raises a genuine issue of material fact on that element. White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

By making a motion for summary judgment, a defendant may force a plaintiff to produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial. Boudreau v. Baughman, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

Court of appeals erred in reversing an order granting summary judgment in favor of a bank in its action to collect a deficiency because the borrowers failed to forecast substantial competent evidence sufficient to create a genuine issue of material fact as to the foreclosed property’s “true value”; merely reciting the statutory language or asserting an unsubstantiated opinion regarding the foreclosed property’s value is insufficient. United Cmty. Bank (Ga.) v. Wolfe, 369 N.C. 555 , 799 S.E.2d 269, 2017 N.C. LEXIS 280 (2017).

Where the moving party offers facts and the opposing party offers mere allegations, there is no genuine issue as to a material fact. Moore v. Fieldcrest Mills, Inc., 36 N.C. App. 350, 244 S.E.2d 208, 1978 N.C. App. LEXIS 2480 (1978), aff'd, 296 N.C. 467 , 251 S.E.2d 419, 1979 N.C. LEXIS 1186 (1979).

Unsupported allegations in pleadings are insufficient to create a genuine issue as to a material fact where the moving adverse party supports his motion by allowable evidentiary matter showing the facts to be contrary to that alleged in the pleadings. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Gudger v. Transitional Furn., Inc., 30 N.C. App. 387, 226 S.E.2d 835, 1976 N.C. App. LEXIS 2262 (1976).

Section (e) of this rule clearly precludes any party from prevailing against a motion for summary judgment through reliance on conclusory allegations unsupported by facts. Nasco Equip. Co. v. Mason, 291 N.C. 145 , 229 S.E.2d 278, 1976 N.C. LEXIS 941 (1976).

Hence when a motion for summary judgment is properly supported, the adverse party may not rest upon the mere allegations or denials of his pleading. Five Star Enters., Inc. v. Russell, 34 N.C. App. 275, 237 S.E.2d 859, 1977 N.C. App. LEXIS 1654 (1977).

If the 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. Haithco*ck v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971); Jarrell v. Samsonite Corp., 12 N.C. App. 673, 184 S.E.2d 376, 1971 N.C. App. LEXIS 1431 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1218 (1972); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Moore v. Galloway, 35 N.C. App. 394, 241 S.E.2d 386, 1978 N.C. App. LEXIS 2980 (1978); co*ckerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980).

Plaintiff may not rely on the bare allegations of his complaint where defendants’ motions for summary judgment are supported as provided in this rule. Peterson v. Winn-Dixie of Raleigh, Inc., 14 N.C. App. 29, 187 S.E.2d 487, 1972 N.C. App. LEXIS 2029 (1972).

Upon a motion for summary judgment the adverse party may not rest upon his complaint and wait for trial to present his evidence, if any, when the moving party has presented affidavits or other matter indicating that summary judgment is appropriate. First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 14 N.C. App. 567, 188 S.E.2d 661, 1972 N.C. App. LEXIS 2177 , rev'd, 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972).

Section (e) of this rule requires an adverse party to do more than merely rely on his pleading if the movant supports his motion by affidavit or otherwise. Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

If the party moving for summary judgment successfully carries his burden of proof, the opposing party must, by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial, and he cannot rest upon the bare allegations or denials of his pleading. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

When the party moving for summary judgment presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Wachovia Bank & Trust Co. v. Grose, 64 N.C. App. 289, 307 S.E.2d 216, 1983 N.C. App. LEXIS 3269 (1983).

Not every failure to respond to a motion for summary judgment will require the entry of summary judgment. The moving party must satisfy his burden of proving that there is no genuine issue of any material fact. However, when the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Whitley v. Coltrane, 65 N.C. App. 679, 309 S.E.2d 712, 1983 N.C. App. LEXIS 3558 (1983).

The moving party has the burden of establishing a lack of triable issues of fact but the nonmoving party may not rest upon mere allegations of his pleadings. Cashion v. Texas Gulf, Inc., 79 N.C. App. 632, 339 S.E.2d 797, 1986 N.C. App. LEXIS 2107 (1986).

The moving party, through his forecast of the evidence, has the burden of establishing a lack of triable issues of fact, but the nonmoving party may not rest upon the mere allegations of his pleadings. Johnson v. Builder's Transp., Inc., 79 N.C. App. 721, 340 S.E.2d 515, 1986 N.C. App. LEXIS 2118 (1986).

A party may not withstand a motion for summary judgment by simply relying on its pleadings; the non-moving party must set forth specific facts by affidavits or as otherwise provided by G.S. 1A-1 , N.C. R. Civ. P. 56(e), showing that there is a genuine issue of material fact for trial. The other methods for setting forth specific facts under Rule 56 are through depositions, answers to interrogatories, admissions on file, documentary materials, further affidavits, or oral testimony in some circ*mstances. If a party does not so respond, summary judgment, if appropriate, shall be entered against him. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

But Must Demonstrate Existence of a Genuine Issue. —

A party against whom the motion for summary judgment is made may not rest upon the allegations or denials of his pleadings, but must demonstrate that there is a genuine issue for trial. Coakley v. Ford Motor Co., 11 N.C. App. 636, 182 S.E.2d 260, 1971 N.C. App. LEXIS 1602 , cert. denied, 279 N.C. 393 , 183 S.E.2d 244, 1971 N.C. LEXIS 815 (1971); Pierce Concrete, Inc. v. Cannon Realty & Constr. Co., 75 N.C. App. 411, 335 S.E.2d 30 (1985).

When a movant makes out a convincing showing that genuine issues of fact are lacking, it is required that the adversary adequately demonstrate by receivable facts that a real, not formal, controversy exists, and he does not do that by mere denial or holding back evidence. Patrick v. Hurdle, 16 N.C. App. 28, 190 S.E.2d 871, 1972 N.C. App. LEXIS 1635 , cert. denied, 282 N.C. 304 , 192 S.E.2d 195, 1972 N.C. LEXIS 942 (1972).

If the moving party files papers, including testimonial affidavits, which show there is not a triable issue, the opposing party, pursuant to sections (e) and (f) of this rule, must file papers which show that there is a triable issue, or the moving party will be entitled to summary judgment. Nye v. Lipton, 50 N.C. App. 224, 273 S.E.2d 313, 1981 N.C. App. LEXIS 2101 (1980), cert. denied, 302 N.C. 630 , 280 S.E.2d 441, 1981 N.C. LEXIS 1246 (1981); Town of Atlantic Beach v. Young, 58 N.C. App. 597, 293 S.E.2d 821, 1982 N.C. App. LEXIS 2793 (1982), rev'd, 307 N.C. 422 , 298 S.E.2d 686, 1983 N.C. LEXIS 1093 (1983).

Where a party has shown that he is entitled to relief and the opposing party offers not even the slightest suggestion of a genuine issue of fact, a motion for summary judgment should be granted. Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978).

Once the moving party meets his burden, the burden is then on the opposing party to show that a genuine issue of material fact exists. If the opponent fails to forecast such evidence, then the trial court’s entry of summary judgment is proper. White v. Hunsinger, 88 N.C. App. 382, 363 S.E.2d 203, 1988 N.C. App. LEXIS 1197 (1988).

Internet company failed to demonstrate a genuine issue of material fact for trial under G.S. 1A-1 , N.C. R. Civ. P. 56(e), so the trial court did not err in granting summary judgment for a publishing company on the publishing company’s claim for possession of computer servers that were in the internet company’s possession. Fayetteville Publ. Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419, 665 S.E.2d 518, 2008 N.C. App. LEXIS 1610 (2008).

Or Provide an Excuse for Not So Showing. —

If the movant carries his burden of establishing prima facie that he is entitled to summary judgment, then his motion should be granted, unless the opposing party responds and shows either that a genuine issue of material fact exists or that he has an excuse for not so showing. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

If the moving party meets his burden of proof, the party who opposes the motion for summary judgment must either show that a genuine issue of material fact for trial does exist or provide an excuse for not so doing. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 , 271 S.E.2d 54, 1980 N.C. LEXIS 1152 (1980); Spivey v. White Motor Corp., 46 N.C. App. 313, 264 S.E.2d 772, 1980 N.C. App. LEXIS 2824 (1980); Quality Inns Int'l, Inc. v. Booth, Fish, Simpson, Harrison & Hall, 58 N.C. App. 1, 292 S.E.2d 755, 1982 N.C. App. LEXIS 2736 (1982); Bernick v. Jurden, 306 N.C. 435 , 293 S.E.2d 405, 1982 N.C. LEXIS 1448 (1982); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407, 1985 N.C. App. LEXIS 3542 (1985).

On motion for summary judgment, the burden on the moving party is to establish that there is no genuine issue as to any material fact remaining to be determined, and if the movant carries this burden by showing that an essential element of the opposing party’s claim is nonexistent, then the burden shifts to the nonmoving party to either show that a genuine issue of material fact does exist or provide an excuse for not so doing. Blue Jeans Corp. v. Pinkerton, Inc., 51 N.C. App. 137, 275 S.E.2d 209, 1981 N.C. App. LEXIS 2184 (1981).

Nonmovant Must Evince Existence of Triable Issue of Material Fact. —

The party opposing summary judgment is not entitled to have the motion denied on the mere hope that at trial he will be able to discredit the movant’s evidence; he must, at the hearing upon the motion for summary judgment, be able to evince the existence of a triable issue of material fact. Wachovia Bank & Trust Co. v. Grose, 64 N.C. App. 289, 307 S.E.2d 216, 1983 N.C. App. LEXIS 3269 (1983).

Trial court did not err by granting summary judgment in favor of the defendants because, viewing the evidence in the light most favorable to the plaintiffs, there were no issues of material fact regarding the plaintiffs’ claims. Furthermore, the plaintiffs offered only cursory legal support for the arguments but did not address how the evidence supported the elements of each of their claims. Kitchin v. Halifax County, 192 N.C. App. 559, 665 S.E.2d 760, 2008 N.C. App. LEXIS 1624 (2008).

Nonmovant Must Set Forth Specific Facts. —

This rule provides that the adverse party, when responding to a motion for summary judgment, must set forth specific facts showing that there is a genuine issue for trial. Beeson v. Moore, 31 N.C. App. 507, 229 S.E.2d 703, 1976 N.C. App. LEXIS 2027 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1239 (1977).

An adequately supported motion for summary judgment triggers the opposing party’s responsibility to come forward with facts, as distinguished from allegations, sufficient to indicate that he will be able to sustain his claim at trial. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981).

When the moving party presents an adequately supported motion, the opposing party must come forward with facts, not mere allegations, which controvert the facts set forth in the moving party’s case, or otherwise suffer a summary judgment. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978); Ballinger v. North Carolina Dep't of Revenue, 59 N.C. App. 508, 296 S.E.2d 836, 1982 N.C. App. LEXIS 3153 (1982), cert. denied, 307 N.C. 576 , 299 S.E.2d 645, 1983 N.C. LEXIS 1176 (1983).

Outdoor advertising companies appealing the revocations of their permits for certain billboards, who were opposing a motion for summary judgment, did not meet the requirement of G.S. 1A-1 , Rule 56(e) that they set forth specific facts because they made only extremely conclusory statements about their expenses to repair and improve their signs, their long-term contracts with customers wishing to rent space on the billboards, and unspecified business decisions made in reliance on the billboards being legal. Capital Outdoor, Inc. v. Tolson, 159 N.C. App. 55, 582 S.E.2d 717, 2003 N.C. App. LEXIS 1417 (2003).

By Affidavits or Otherwise. —

Once a motion for summary judgment has been made and supported as provided by this rule, the opposing party may not rest upon the mere allegations and denials of his pleadings, but must come forth, by affidavits or as otherwise provided in this rule, with specific facts showing that a genuine issue for trial exists. Brice v. Moore, 30 N.C. App. 365, 226 S.E.2d 882, 1976 N.C. App. LEXIS 2255 (1976); Cameron-Brown Capital Corp. v. Spencer, 31 N.C. App. 499, 229 S.E.2d 711, 1976 N.C. App. LEXIS 2025 (1976), cert. denied, 291 N.C. 710 , 232 S.E.2d 203, 1977 N.C. LEXIS 1240 (1977); First Citizens Bank & Trust Co. v. Holland, 51 N.C. App. 529, 277 S.E.2d 108, 1981 N.C. App. LEXIS 2270 (1981); Atkins v. Beasley, 53 N.C. App. 33, 279 S.E.2d 866, 1981 N.C. App. LEXIS 2534 (1981).

When a motion for summary judgment is made and supported as provided in this rule, the response of an adverse party, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. Brevard v. Barkley, 12 N.C. App. 665, 184 S.E.2d 370, 1971 N.C. App. LEXIS 1429 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Five Star Enters., Inc. v. Russell, 34 N.C. App. 275, 237 S.E.2d 859, 1977 N.C. App. LEXIS 1654 (1977).

If the defendant moving for summary judgment successfully carries his burden of proof, the plaintiff must, by affidavits or otherwise, set forth specific facts showing that there is a genuine issue for trial. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970); Haithco*ck v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Jarrell v. Samsonite Corp., 12 N.C. App. 673, 184 S.E.2d 376, 1971 N.C. App. LEXIS 1431 (1971), cert. denied, 280 N.C. 180 , 185 S.E.2d 704, 1972 N.C. LEXIS 1218 (1972); Caldwell v. Deese, 26 N.C. App. 435, 216 S.E.2d 452, 1975 N.C. App. LEXIS 2070 , rev'd, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975); Brooks v. Smith, 27 N.C. App. 223, 218 S.E.2d 489, 1975 N.C. App. LEXIS 1802 (1975); Bentley v. Langley, 39 N.C. App. 20, 249 S.E.2d 481, 1978 N.C. App. LEXIS 2332 (1978), cert. denied, 296 N.C. 735 , 254 S.E.2d 176, 1979 N.C. LEXIS 1428 (1979); Neihage v. Kittrell Auto Parts, Inc., 41 N.C. App. 538, 255 S.E.2d 315, 1979 N.C. App. LEXIS 2665 , cert. denied, 298 N.C. 298 , 259 S.E.2d 914, 1979 N.C. LEXIS 1593 (1979); co*ckerham v. Ward, 44 N.C. App. 615, 262 S.E.2d 651, 1980 N.C. App. LEXIS 2548 , cert. denied, 300 N.C. 195 , 269 S.E.2d 622, 1980 N.C. LEXIS 1489 (1980).

Where a defendant seeking summary judgment carries his burden of proving a lack of genuine issue of fact for trial by evidentiary presumption or otherwise, the plaintiff may not rely on his bare allegations to the contrary but must, by affidavits or otherwise, set forth specific facts showing a genuine issue of fact for trial to defeat defendants’ motion. Clifton v. Fesperman, 50 N.C. App. 178, 272 S.E.2d 624, 1980 N.C. App. LEXIS 3466 (1980).

General Denial by Nonmovant Is Insufficient. —

Once plaintiff has made and supported its motion for summary judgment, under section (e) of this rule the burden is on defendant to introduce evidence in opposition to the motion setting forth “specific facts showing that there is a genuine issue for trial.” An answer filed by defendant which only generally denies the allegations of the complaint fails to do this. Stroup Sheet Metal Works, Inc. v. Heritage, Inc., 43 N.C. App. 27, 258 S.E.2d 77, 1979 N.C. App. LEXIS 3031 (1979).

In order to resist a motion for summary judgment, it is incumbent upon the opposing party to show that he has, or will have, evidence sufficient to raise an issue of fact. This rule does not contemplate the use of affidavits merely to deny allegations in the pleadings. N.C. Monroe Constr. Co. v. Coan, 30 N.C. App. 731, 228 S.E.2d 497, 1976 N.C. App. LEXIS 2344 , cert. denied, 291 N.C. 323 , 230 S.E.2d 676, 1976 N.C. LEXIS 979 (1976).

An answer filed by defendant as nonmovant which only generally denies the allegations of the complaint fails to raise a genuine issue of fact. An affidavit which merely reaffirms the allegations of the defendant’s answer is also insufficient. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

Unverified Responses to Request for Admissions Do Not Constitute Affidavit. —

Where defendant’s responses to plaintiffs’ request for admissions were not verified, they could not be deemed to be an affidavit; and as they were not in the category of “depositions, answers to interrogatories, and admissions on file” specified in G.S. 1A-1 , Rule 56 as material that could be considered, they were insufficient to defeat plaintiffs’ motion for summary judgment. Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715, 2005 N.C. App. LEXIS 2393 (2005), cert. denied, 548 U.S. 906, 126 S. Ct. 2972, 165 L. Ed. 2d 954, 2006 U.S. LEXIS 4950 (2006).

But party opposing motion for summary judgment does not have to establish that he would prevail on the issue involved, but merely that the issue exists. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Cox v. Cox, 75 N.C. App. 354, 330 S.E.2d 506, 1985 N.C. App. LEXIS 3637 (1985); Ward v. Durham Life Ins. Co., 90 N.C. App. 286, 368 S.E.2d 391, 1988 N.C. App. LEXIS 539 (1988), aff'd, 325 N.C. 202 , 381 S.E.2d 698, 1989 N.C. LEXIS 375 (1989).

And Nonmovant Is Not Required to Make Out Prima Facie Case for Jury. —

On a motion for summary judgment, the nonmovant is not required to come forward and make a prima facie case for the jury, as he would on a motion for directed verdict at trial. He is only required to show that he has evidence to contest such evidentiary matters as the movant may have produced in support of the motion that would, standing alone, defeat the action. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Rorrer v. Cooke, 69 N.C. App. 305, 317 S.E.2d 34, 1984 N.C. App. LEXIS 3471 (1984), rev'd, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Summary judgment is a device by which a defending party may force the claimant to produce a forecast of the claimant’s evidence demonstrating that the claimant will, at trial, be able to make out at least a prima facie case, or that he will be able to surmount an affirmative defense; the claimant need not present all the evidence available in his favor, but only that necessary to rebut the defendant’s showing that an essential element of his claim is nonexistent or that he cannot surmount an affirmative defense. Dickens v. Puryear, 302 N.C. 437 , 276 S.E.2d 325, 1981 N.C. LEXIS 1073 (1981).

In a hearing on a motion for summary judgment the nonmovant, unlike a plaintiff at trial, does not have to automatically make out a prima facie case, but only has to refute any showing made that his case is fatally deficient. Riddle v. Nelson, 84 N.C. App. 656, 353 S.E.2d 866, 1987 N.C. App. LEXIS 2547 (1987).

Nor to Present Evidence as to All Elements of Claim. —

As nonmovants at a hearing on a motion for summary judgment, defendants did not have to automatically present evidence as to all the elements of their counterclaim as they would at trial; they only had to refute any showing by plaintiffs that the claim was fatally deficient. Rose v. Lang, 85 N.C. App. 690, 355 S.E.2d 795, 1987 N.C. App. LEXIS 2651 (1987).

Burden on Defendant-Movant in Cases Dependent on State of Mind. —

Defendant-movant has a particularly difficult burden to carry in a case in which plaintiff’s claim is dependent on proof that defendant acted with a particular state of mind, e.g., cases involving fraud, conspiracy, or bad faith. In such a case defendant-movant, in order to meet his initial burden on a motion for summary judgment, must at least produce more than a mere denial by affidavits that he acted with the state of mind alleged by plaintiff. His evidence in support of his motion must be of the necessary certitude to negative any one or more of the essential elements of plaintiff’s claim. Edwards v. Northwestern Bank, 39 N.C. App. 261, 250 S.E.2d 651, 1979 N.C. App. LEXIS 2501 (1979).

Defendant’s Response Held Inadequate. —

In a suit against defendant as guarantor of payment on a promissory note, where defendant filed an affidavit in opposition to plaintiff’s motion for summary judgment, but in it merely referred to the question of a material change made in the terms of the note, which issue had been raised in his answer, and did not set forth any specific facts to support his allegation of material alteration, his response to plaintiff’s motion for summary judgment was inadequate. Better Adv., Inc. v. Peace, 43 N.C. App. 534, 259 S.E.2d 359, 1979 N.C. App. LEXIS 3093 (1979), cert. denied, 299 N.C. 328 , 265 S.E.2d 393, 1980 N.C. LEXIS 999 (1980).

Where in opposition to plaintiff’s evidence, defendant’s sole and only support was verified denial upon information and belief of forgery allegations in complaint, this was not sufficient to rebut affidavits based on personal knowledge, and since no excuse was offered for defendant’s failure of proof, and the court was given no reason to believe that her position in the case would ever be stronger than it then was, judgment against her was correctly entered. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

Defendant’s affidavit, which only restated the unsupported allegations previously made by the defendant in his answer and in his answers to plaintiff’s interrogatories, was insufficient to withstand plaintiff’s motion for summary judgment. Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984).

Affiliated corporations’ general denial as to the amount owed to a services provider contained in their answer, coupled with their general denial in their affidavit that they owed the provider anything, was insufficient to raise a genuine issue of material fact as to the amount of the debt; the trial court, therefore, did not err in granting partial summary judgment in favor of the services provider on its breach of contract claim and awarding damages. Excel Staffing Serv. v. HP Reidsville, Inc., 172 N.C. App. 281, 616 S.E.2d 349, 2005 N.C. App. LEXIS 1582 (2005).

Party may succeed on summary judgment motion upon the strength of his own evidence or the weakness of the opposing party’s evidence when such a forecast of that evidence can be obtained in discovery or in response to movant’s prima facie showing on the motion. Steel Creek Dev. Corp. v. Smith, 300 N.C. 631 , 268 S.E.2d 205, 1980 N.C. LEXIS 1137 (1980).

For summary judgment to be appropriate for the party with the burden of persuasion he must still succeed on the strength of his own evidence, even though his affidavits and supporting material are not challenged as provided by sections (e) and (f) of this rule. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

V.Function of Trial Court

Court Is Not Authorized to Decide Issues of Fact. —

This rule does not authorize the court to decide an issue of fact. Caldwell v. Deese, 288 N.C. 375 , 218 S.E.2d 379, 1975 N.C. LEXIS 986 (1975).

Under section (c) of this rule the trial judge does not sit as fact finder as is true under G.S. 1A-1 , Rule 52. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976).

In ruling on a motion for summary judgment, the court should not decide issues of fact. However, summary judgments should be looked upon with favor where no genuine issue of material fact is presented. Joel T. Cheatham, Inc. v. Hall, 64 N.C. App. 678, 308 S.E.2d 457, 1983 N.C. App. LEXIS 3355 (1983).

The court is not authorized to decide an issue of fact but to determine if such an issue exists. Campbell v. Board of Educ., 76 N.C. App. 495, 333 S.E.2d 507, 1985 N.C. App. LEXIS 3908 (1985).

In ruling on a motion for summary judgment, the court does not resolve issues of fact, and must deny the motion if there is any genuine issue of material fact. Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985).

Nor to Make Findings of Facts and Conclusions of Law. —

It is not a part of the function of the court on a motion for summary judgment to make findings of fact and conclusions of law. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978); Sainz v. Sainz, 36 N.C. App. 744, 245 S.E.2d 372, 1978 N.C. App. LEXIS 2619 (1978); Marshall v. Keaveny, 38 N.C. App. 644, 248 S.E.2d 750, 1978 N.C. App. LEXIS 2301 (1978).

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. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975).

The court went far beyond the purview of summary judgment when it treated the hearing on the motion as a nonjury trial of the case on the merits, found facts on conflicting evidence, made conclusions of law, and entered final judgment between the parties. Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579, 1973 N.C. App. LEXIS 1928 (1973).

Findings of fact in a summary judgment order are ill advised because they indicate that a question of fact was presented and resolved by the trial court. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

A trial judge is not required to make findings of fact for summary judgment. Amoco Oil Co. v. Griffin, 78 N.C. App. 716, 338 S.E.2d 601, 1986 N.C. App. LEXIS 1999 (1986).

A trial judge is not required to make findings of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal. White v. Town of Emerald Isle, 82 N.C. App. 392, 346 S.E.2d 176, 1986 N.C. App. LEXIS 2443 (1986).

When the trial court granted a motion for summary judgment, it was inappropriate for the trial court to set forth findings addressing issues upon which evidence was conflicting. Upon a motion for summary judgment it was no part of the trial court’s function to decide issues of fact but solely to determine whether there was an issue of fact to be tried. Craddock v. Craddock, 188 N.C. App. 806, 656 S.E.2d 716, 2008 N.C. App. LEXIS 273 (2008).

But to Determine Whether Genuine Issues of Material Fact Exist. —

It is not the duty of the court hearing a motion for summary judgment to decide an issue of fact, but rather to determine whether a genuine issue as to any material fact exists. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970); Moore v. Bryson, 11 N.C. App. 260, 181 S.E.2d 113, 1971 N.C. App. LEXIS 1502 (1971); Clear Fir Sales Co. v. Carolina Plywood Distrib., Inc., 13 N.C. App. 429, 185 S.E.2d 737, 1972 N.C. App. LEXIS 2257 (1972); Keith v. G.D. Reddick, Inc., 15 N.C. App. 94, 189 S.E.2d 775, 1972 N.C. App. LEXIS 1830 (1972); Long v. Long, 15 N.C. App. 525, 190 S.E.2d 415, 1972 N.C. App. LEXIS 1956 (1972); Lowman v. Huffman, 15 N.C. App. 700, 190 S.E.2d 700, 1972 N.C. App. LEXIS 2008 (1972); Graham v. Northwestern Bank, 16 N.C. App. 287, 192 S.E.2d 109, 1972 N.C. App. LEXIS 1689 , cert. denied, 282 N.C. 426 , 192 S.E.2d 836, 1972 N.C. LEXIS 977 (1972); Houck v. Overcash, 282 N.C. 623 , 193 S.E.2d 905, 1973 N.C. LEXIS 1134 (1973); Stonestreet v. Compton Motors, Inc., 18 N.C. App. 527, 197 S.E.2d 579, 1973 N.C. App. LEXIS 1928 (1973); Nationwide Mut. Ins. Co. v. Chantos, 25 N.C. App. 482, 214 S.E.2d 438, 1975 N.C. App. LEXIS 2308 , cert. denied, 287 N.C. 465 , 215 S.E.2d 624, 1975 N.C. LEXIS 1140 (1975); Reavis v. Campbell, 27 N.C. App. 231, 218 S.E.2d 873, 1975 N.C. App. LEXIS 1804 (1975); Lambert v. Duke Power Co., 32 N.C. App. 169, 231 S.E.2d 31, 1977 N.C. App. LEXIS 1877 , cert. denied, 292 N.C. 265 , 233 S.E.2d 392, 1977 N.C. LEXIS 1069 (1977); Vassey v. Burch, 301 N.C. 68 , 269 S.E.2d 137, 1980 N.C. LEXIS 1145 (1980); Flippin v. Jarrell, 301 N.C. 108 , 270 S.E.2d 482, 1980 N.C. LEXIS 1160 (1980); Thompson v. Northwestern Sec. Life Ins. Co., 44 N.C. App. 668, 262 S.E.2d 397, 1980 N.C. App. LEXIS 2584 , cert. denied, 300 N.C. 202 , 269 S.E.2d 620, 1980 N.C. LEXIS 1521 (1980); Bone Int'l, Inc. v. Brooks, 51 N.C. App. 183, 275 S.E.2d 556, 1981 N.C. App. LEXIS 2210 , rev'd, 304 N.C. 371 , 283 S.E.2d 518, 1981 N.C. LEXIS 1351 (1981); Gore v. Hill, 52 N.C. App. 620, 279 S.E.2d 102, 1981 N.C. App. LEXIS 2452 (1981); Texaco, Inc. v. Creel, 57 N.C. App. 611, 292 S.E.2d 130, 1982 N.C. App. LEXIS 2694 (1982), aff'd, 310 N.C. 695 , 314 S.E.2d 506, 1984 N.C. LEXIS 1698 (1984); Shew v. Southern Fire & Cas. Co., 58 N.C. App. 637, 294 S.E.2d 233, 1982 N.C. App. LEXIS 2810 (1982), rev'd, 307 N.C. 438 , 298 S.E.2d 380, 1983 N.C. LEXIS 1096 (1983); Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Narron v. Hardee's Food Sys., 75 N.C. App. 579, 331 S.E.2d 205, 1985 N.C. App. LEXIS 3718 (1985); Lessard v. Lessard, 77 N.C. App. 97, 334 S.E.2d 475, 1985 N.C. App. LEXIS 4022 (1985), aff'd, 316 N.C. 546 , 342 S.E.2d 522, 1986 N.C. LEXIS 2146 (1986); Barnes v. Wilson Hdwe. Co., 77 N.C. App. 773, 336 S.E.2d 457, 1985 N.C. App. LEXIS 4376 (1985); Johnson v. Builder's Transp., Inc., 79 N.C. App. 721, 340 S.E.2d 515, 1986 N.C. App. LEXIS 2118 (1986).

In ruling on a motion for summary judgment, the court does not resolve issues of fact, but goes beyond the pleadings to determine whether there is a genuine issue of material fact. Zimmerman v. Hogg & Allen, 286 N.C. 24 , 209 S.E.2d 795, 1974 N.C. LEXIS 1175 (1974).

It is not the province of the court to find the facts upon a motion for summary judgment. Its province is to determine whether there are genuine issues of material fact in dispute. Eggiman v. Wake County Bd. of Educ., 22 N.C. App. 459, 206 S.E.2d 754, 1974 N.C. App. LEXIS 2357 , cert. denied, 285 N.C. 756 , 209 S.E.2d 280, 1974 N.C. LEXIS 1140 (1974).

In passing upon a motion for summary judgment, the court does not decide facts, but makes a determination as to whether an issue exists which is germane to the action. Furst v. Loftin, 29 N.C. App. 248, 224 S.E.2d 641, 1976 N.C. App. LEXIS 2454 (1976); Nytco Leasing, Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 230 S.E.2d 559, 1976 N.C. App. LEXIS 2078 (1976), cert. denied, 292 N.C. 265 , 233 S.E.2d 393, 1977 N.C. LEXIS 1070 (1977); Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, 1977 N.C. App. LEXIS 2033 , cert. denied, 292 N.C. 734 , 235 S.E.2d 788, 1977 N.C. LEXIS 1207 (1977); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620, 1977 N.C. App. LEXIS 2053 (1977).

The judge’s role in ruling on a motion for summary judgment is to determine whether any material issues of fact exist that require trial. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Stroup Sheet Metal Works, Inc. v. Heritage, Inc., 43 N.C. App. 27, 258 S.E.2d 77, 1979 N.C. App. LEXIS 3031 (1979); Reed's Jewelers, Inc. v. ADT Co., 43 N.C. App. 744, 260 S.E.2d 107, 1979 N.C. App. LEXIS 3173 (1979); DeCarlo v. Gerryco, Inc., 46 N.C. App. 15, 264 S.E.2d 370, 1980 N.C. App. LEXIS 2740 (1980); Stanback v. Stanback, 53 N.C. App. 243, 280 S.E.2d 498, 1981 N.C. App. LEXIS 2576 (1981); Land-of-Sky Regional Council v. County of Henderson, 78 N.C. App. 85, 336 S.E.2d 653, 1985 N.C. App. LEXIS 4246 (1985).

Summary judgment does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists. Sauls v. Charlotte Liberty Mut. Ins. Co., 62 N.C. App. 533, 303 S.E.2d 358, 1983 N.C. App. LEXIS 2927 (1983); Elmore's Feed & Seed, Inc. v. Patrick, 62 N.C. App. 715, 303 S.E.2d 394, 1983 N.C. App. LEXIS 2995 (1983); Justus v. Deutsch, 62 N.C. App. 711, 303 S.E.2d 571, 1983 N.C. App. LEXIS 2973 (1983).

The judge’s role is to determine from the forecast of the evidence if there is a material issue of fact that is triable. Lawson v. Lawson, 84 N.C. App. 51, 351 S.E.2d 794, 1987 N.C. App. LEXIS 2470 , rev'd, 321 N.C. 274 , 362 S.E.2d 269, 1987 N.C. LEXIS 2552 (1987).

In determining whether summary judgment is appropriate, the judge’s function is not to decide the truth of issues raised by the pleadings and other materials of record, but to determine whether any genuine issue of material fact exists that requires adjudication. Avriett v. Avriett, 88 N.C. App. 506, 363 S.E.2d 875, 1988 N.C. App. LEXIS 110 , aff'd, 322 N.C. 468 , 368 S.E.2d 377, 1988 N.C. LEXIS 240 (1988).

Appellate court’s standard to review the grant of a motion for summary judgment is whether any genuine issue of material fact exists and whether the moving party is entitled to judgment as a matter of law, in accordance with G.S. 1A-1 , N.C. R. Civ. P. 56(c). McGlynn v. Duke Univ., 165 N.C. App. 250, 598 S.E.2d 424, 2004 N.C. App. LEXIS 1151 (2004).

And Whether a Party Is Entitled to Judgment as a Matter of Law. —

Function of trial judge is to examine the materials, determine what facts are established and conclude whether there is a genuine issue as to any material fact and if a party is entitled to judgment as a matter of law. Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361, 1975 N.C. App. LEXIS 1949 (1975), aff'd, 290 N.C. 502 , 226 S.E.2d 321, 1976 N.C. LEXIS 1091 (1976).

G.S. 1A-1 , Rule 52(a)(2) does not apply to the decision on a summary judgment motion, because if findings of fact are necessary to resolve an issue summary judgment is improper. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (1980); White v. Town of Emerald Isle, 82 N.C. App. 392, 346 S.E.2d 176, 1986 N.C. App. LEXIS 2443 (1986).

Unless Hearing Is Extended into Court Trial. —

If the summary judgment hearing is a protracted hearing, in effect a trial to determine that a trial must be held, and if all the parties desire to and do turn the summary judgment into a court trial, they cannot be heard to object. In that event the court should make findings of fact and conclusions of law in accordance with G.S. 1A-1 , Rule 52. Walton v. Meir, 14 N.C. App. 183, 188 S.E.2d 56, 1972 N.C. App. LEXIS 2085 , cert. denied, 281 N.C. 515 , 189 S.E.2d 35, 1972 N.C. LEXIS 1100 (1972).

When Hearing Not Required. —

Distinction between a motion for judgment on the pleadings and a motion for summary judgment is that the latter may require an evidentiary hearing; in the situation where the trial court takes judicial notice of an established fact, such as the record of the prior proceeding, no hearing is required. QUB Studios, LLC v. Marsh, 262 N.C. App. 251, 822 S.E.2d 113, 2018 N.C. App. LEXIS 1082 (2018).

If findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975); Nytco Leasing, Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 230 S.E.2d 559, 1976 N.C. App. LEXIS 2078 (1976), cert. denied, 292 N.C. 265 , 233 S.E.2d 393, 1977 N.C. LEXIS 1070 (1977); Moore v. Galloway, 35 N.C. App. 394, 241 S.E.2d 386, 1978 N.C. App. LEXIS 2980 (1978); PMB, Inc. v. Rosenfeld, 48 N.C. App. 736, 269 S.E.2d 748, 1980 N.C. App. LEXIS 3302 (1980).

If the facts are not in dispute, there is no need to “find facts.” If there is a need to “find facts,” then summary judgment will not be appropriate if those facts are material. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978); Strickland v. Tant, 41 N.C. App. 534, 255 S.E.2d 325, 1979 N.C. App. LEXIS 2662 , cert. denied, 298 N.C. 304 , 259 S.E.2d 917, 1979 N.C. LEXIS 1619 (1979).

However, findings of fact and conclusions of law do not render a summary judgment void or voidable, and may be helpful, if the facts are not at issue and support the judgment. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978); Stone v. Conder, 46 N.C. App. 190, 264 S.E.2d 760, 1980 N.C. App. LEXIS 2821 (1980); PMB, Inc. v. Rosenfeld, 48 N.C. App. 736, 269 S.E.2d 748, 1980 N.C. App. LEXIS 3302 (1980).

Although a trial judge was not required to make and enter into the record detailed findings of fact in ruling on a motion for summary judgment, it was not error for the court to do so, where there was plenary evidence in the record to support his findings. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972).

Although trial court’s detailed findings of fact on granting summary judgment were irregular and unnecessary, nevertheless plaintiff was not prejudiced by such findings, even assuming arguendo that some of them were erroneous, where the materials before the court established without contradiction that plaintiff’s action was fatally deficient. Avriett v. Avriett, 88 N.C. App. 506, 363 S.E.2d 875, 1988 N.C. App. LEXIS 110 , aff'd, 322 N.C. 468 , 368 S.E.2d 377, 1988 N.C. LEXIS 240 (1988).

As a Summary of Undisputed Facts Justifying Entry of Judgment. —

Although findings of fact are not necessary on a motion for summary judgment, it is helpful to the parties and the courts for the trial judge to articulate a summary of the material facts which he considers are not at issue and which justify entry of judgment. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975).

The action by the trial judge in making findings of fact was without error where his stated findings were merely a summary of the material facts not at issue which he thought justified entry of judgment. Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, 1977 N.C. App. LEXIS 2033 , cert. denied, 292 N.C. 734 , 235 S.E.2d 788, 1977 N.C. LEXIS 1207 (1977).

In rare situations it can be helpful for the trial court to set out the undisputed facts which form the basis for his summary judgment. When that appears helpful or necessary, the court should let the judgment show that the facts set out therein are the undisputed facts. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E.2d 527, 1978 N.C. App. LEXIS 2961 (1978).

In ruling on a motion for summary judgment the trial judge does not make findings of fact, which are decisions upon conflicting evidence, but he may properly list the uncontroverted material facts which are the basis of his conclusions of law and judgment. Rodgerson v. Davis, 27 N.C. App. 173, 218 S.E.2d 471, 1975 N.C. App. LEXIS 1789 (1975); A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Orders granting summary judgment under this rule do not normally contain detailed findings of fact. However, if the findings of fact are actually the trial court’s summation of the undisputed facts which support the judgment, findings of fact and conclusions of law do not render a summary judgment void or voidable. Noel Williams Masonry, Inc. v. Vision Contractors, 103 N.C. App. 597, 406 S.E.2d 605, 1991 N.C. App. LEXIS 867 (1991).

Granting of a Continuance. —

Review of the record failed to reveal an abuse of discretion on the part of the trial court in denying defendants’ motion for continuance. HSI N.C. LLC v. Diversified Fire Prot. of Wilmington, Inc., 169 N.C. App. 767, 611 S.E.2d 224, 2005 N.C. App. LEXIS 805 (2005).

Consideration of Findings on Appeal. —

Findings of fact on summary judgment entered by the trial judge, insofar as they may resolve issues as to a material fact, have no effect on appeal and are irrelevant to appeal decision. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 215 S.E.2d 162, 1975 N.C. App. LEXIS 1990 (1975).

A trial judge is not required to make findings of fact and conclusions of law in determining a motion for summary judgment, and if he does make some, they are disregarded on appeal. Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145, 1978 N.C. App. LEXIS 2413 , cert. denied, 295 N.C. 467 , 246 S.E.2d 9, 1978 N.C. LEXIS 908 (1978).

VI.Evidence on Motion

A.In General

What Evidence May Be Considered on Motion for Summary Judgment. —

Evidence which may be considered under this rule includes admissions in the pleadings, depositions on file, answers to interrogatories under G.S. 1A-1 , Rule 33, admissions on file whether obtained under G.S. 1A-1 , Rule 36 or in any other way, affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Blades v. City of Raleigh, 280 N.C. 531 , 187 S.E.2d 35, 1972 N.C. LEXIS 1277 (1972); Riggins v. County of Mecklenburg, 14 N.C. App. 624, 188 S.E.2d 749, 1972 N.C. App. LEXIS 2197 (1972); Jernigan v. State Farm Mut. Auto. Ins. Co., 16 N.C. App. 46, 190 S.E.2d 866, 1972 N.C. App. LEXIS 1637 (1972).

On a motion for summary judgment the court may consider admissions in the pleadings, depositions, answers to interrogatories, affidavits, admissions on file, oral testimony, documentary materials, facts which are subject to judicial notice, such presumptions as would be available upon trial, and any other materials which would be admissible in evidence at trial. Singleton v. Stewart, 280 N.C. 460 , 186 S.E.2d 400, 1972 N.C. LEXIS 1265 (1972); Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972); Booe v. Hall, 24 N.C. App. 276, 210 S.E.2d 293, 1974 N.C. App. LEXIS 1977 (1974); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E.2d 571, 1975 N.C. App. LEXIS 2261 (1975); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

When the motion for summary judgment comes on to be heard, the court may consider the pleadings, depositions, admissions, affidavits, answers to interrogatories, oral testimony and documentary materials; and the court may also consider facts which are subject to judicial notice and any presumptions that would be available at trial. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Gebb v. Gebb, 67 N.C. App. 104, 312 S.E.2d 691, 1984 N.C. App. LEXIS 3011 (1984).

On a motion for summary judgement the court may consider affidavits, depositions, answers to interrogatories, admissions, documentary materials, facts which are subject to judicial notice and any other materials which would be admissible in evidence at trial. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

The court may consider, at the hearing on the motion for summary judgment, pleadings, affidavits which meet the requirements of section (e) of this rule, depositions, answers to interrogatories, admissions, oral testimony, documentary material, facts subject to judicial notice and such presumptions as would be available at trial. Mozingo v. North Carolina Nat'l Bank, 31 N.C. App. 157, 229 S.E.2d 57, 1976 N.C. App. LEXIS 1945 (1976), cert. denied, 291 N.C. 711 , 232 S.E.2d 204, 1977 N.C. LEXIS 1246 (1977).

This rule does not limit consideration of a motion for summary judgment to the pleadings; the court may consider depositions, answers to interrogatories, admissions on file and affidavits. Ridings v. Ridings, 55 N.C. App. 630, 286 S.E.2d 614, 1982 N.C. App. LEXIS 2250 (1982).

As a document properly served and filed in a case, the trial court was entitled to consider a memorandum in which the plaintiff withdrew one of its causes of action as a matter outside the pleading when it ruled on a motion for summary judgment. Shroyer v. County of Mecklenburg, 154 N.C. App. 163, 571 S.E.2d 849, 2002 N.C. App. LEXIS 1402 (2002).

Affidavits submitted at summary judgment must meet the requirements of G.S. 1A-1 , N.C. R. Civ. P. 56(e). Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Bank submitted verified responses to borrowers’ interrogatories and requests for admission, which evidenced transfer of a note and deed of trust, and which were also appropriate for the court’s consideration in ruling on summary judgment. In re Dispute over the Sum of $375,757.47, 240 N.C. App. 505, 771 S.E.2d 800, 2015 N.C. App. LEXIS 322 (2015).

Bank’s verified third party complaint was properly treated as an affidavit for summary judgment by the trial court because the complaint incorporated a promissory note and deed of trust, and alleged that the bank was not the holder of the note when a certificate of satisfaction was recorded, and that it was without authority to execute and record the satisfaction. In re Dispute over the Sum of $375,757.47, 240 N.C. App. 505, 771 S.E.2d 800, 2015 N.C. App. LEXIS 322 (2015).

Facts required to support summary judgment must be established by pleadings, depositions, answers to interrogatories, admissions or affidavits. Cieszko v. Clark, 92 N.C. App. 290, 374 S.E.2d 456, 1988 N.C. App. LEXIS 1047 (1988).

Verified Pleadings. —

Complaint by former county sheriff’s employees was not verified, so it could not be considered in the course of the trial court’s deliberations concerning the sheriff’s summary judgment motion. McLaughlin v. Bailey, 240 N.C. App. 159, 771 S.E.2d 570, 2015 N.C. App. LEXIS 283 (2015), aff'd, 368 N.C. 618 , 781 S.E.2d 23, 2016 N.C. LEXIS 28 (2016).

Deposition Denied Where Not Relevant to Limited Issues of Immunity of School Board. —

Where a trial court had bifurcated issues in an action by a student and her parents against a school board and other school board entities, arising from a traffic control gate having come down on the student’s car as she was departing the school, such that the initial issues on a motion for summary judgment by the school boards related to whether they had immunity and, if so, whether such immunity was waived, it was proper to deny the parents’ and student’s request to depose an individual, pursuant to subsection (f) of this rule; the deposition was sought for purposes of showing the extent of claims made and paid against the school boards, but since the boards had already provided that information through other discovery devices, no new information relevant to the limited issues was presented that justified the deposition. Ripellino v. N.C. Sch. Bds. Ass'n, 158 N.C. App. 423, 581 S.E.2d 88, 2003 N.C. App. LEXIS 1184 (2003), cert. denied, 358 N.C. 156 , 592 S.E.2d 694, 2004 N.C. LEXIS 103 (2004), cert. denied, 358 N.C. 156 , 2004 N.C. LEXIS 515 (2004).

Consideration of Deposition from Another Proceeding in Ruling on Summary Judgment. —

Trial court properly considered depositions taken in another proceeding in ruling on a city’s summary judgment motion in a landowner’s inverse condemnation and negligence action against the city, because the depositions were sworn and were at least as reliable as affidavits. Although the city did not have the opportunity to cross-examine the witnesses, the same could be said of affidavit witnesses. First Gaston Bank of N.C. v. City of Hickory, 203 N.C. App. 195, 691 S.E.2d 715, 2010 N.C. App. LEXIS 544 (2010).

A motion for summary judgment allows one party to force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. Dixie Chem. Corp. v. Edwards, 68 N.C. App. 714, 315 S.E.2d 747, 1984 N.C. App. LEXIS 3432 (1984).

Summary judgment is a device by which a defending party may force the claimant to produce a forecast of claimant’s evidence demonstrating that claimant will, at trial, be able to make out at least a prima facie case or that he will be able to surmount an affirmative defense. Snipes v. Jackson, 69 N.C. App. 64, 316 S.E.2d 657, 1984 N.C. App. LEXIS 3383 (1984).

Affidavits Must Be Served Prior to Hearing. —

Because affidavit was not served prior to the day of hearing, the trial court abused its discretion in failing to exclude it. Wells v. Consolidated Judicial Retirement Sys., 136 N.C. App. 671, 526 S.E.2d 486, 2000 N.C. App. LEXIS 162 (2000), aff'd, 354 N.C. 313 , 553 S.E.2d 877, 2001 N.C. LEXIS 1098 (2001).

Trial court did not abuse its discretion by excluding an affidavit that was submitted less than two business days before the hearing on the summary judgment motion. HSI N.C. LLC v. Diversified Fire Prot. of Wilmington, Inc., 169 N.C. App. 767, 611 S.E.2d 224, 2005 N.C. App. LEXIS 805 (2005).

But Other Evidence Need Not Be Served Prior to Hearing. —

Because this rule does not specify that forms of evidence, other than affidavits, be presented at any particular time, much less prior to the hearing, the court could not conclude that plaintiffs violated this section by presenting excerpts from a publication in opposition to the motion while the summary judgment hearing was underway. Pierson v. Cumberland County Civic Ctr. Comm'n, 141 N.C. App. 628, 540 S.E.2d 810, 2000 N.C. App. LEXIS 1394 (2000).

Affidavits, etc., Setting Forth Inadmissible Facts Not to Be Considered. —

The converse of the requirement set forth in section (e) of this rule is that affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on the motion for summary judgment. Borden, Inc. v. Brower, 17 N.C. App. 249, 193 S.E.2d 751, 1973 N.C. App. LEXIS 1332 , rev'd, 284 N.C. 54 , 199 S.E.2d 414, 1973 N.C. LEXIS 775 (1973).

Unless Unchallenged. —

Uncertified or otherwise inadmissible documents may be considered by the court if not challenged by means of a timely objection. Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978).

Affidavits Must Be Based on “Personal Knowledge.” —

Affidavits submitted by senior vice president for medical staff affairs in support of defendant/hospital’s motion for summary judgment were based on a review of facts with which he was familiar, not on the requisite “personal knowledge,” and their admission was, therefore, error. Hylton v. Koontz, 138 N.C. App. 511, 530 S.E.2d 108, 2000 N.C. App. LEXIS 629 (2000).

Supporting and opposing affidavits at summary judgment shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. G.S. 1A-1 , N.C. R. Civ. P. 56(e). The converse of this requirement is that affidavits or other material offered which set forth facts which would not be admissible in evidence should not be considered when passing on a motion for summary judgment. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Affidavit statements based on hearsay would not be admissible in evidence and should not be considered in passing on a motion for summary judgment. Patterson v. Reid, 10 N.C. App. 22, 178 S.E.2d 1, 1970 N.C. App. LEXIS 1181 (1970).

If an affidavit at summary judgment contains hearsay matters or statements not based on an affiant’s personal knowledge, a court should not consider those portions of the affidavit. Similarly, if an affidavit sets forth facts that would be inadmissible in evidence, such portions should be struck by the trial court. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Legal Conclusions are Inadmissible. —

An affiant’s legal conclusions, as opposed to facts as would be admissible in evidence, are not to be considered by a trial court on a motion for summary judgment. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Trial court correctly struck plaintiff’s affidavits supporting her motion for summary judgment where portions of each of her affidavits were inadmissible hearsay, irrelevant, or violative of the parole evidence rule, while the portions that would remain after striking the improper statements provided no support to the motion for summary judgment. Williamson v. Bullington, 139 N.C. App. 571, 534 S.E.2d 254, 2000 N.C. App. LEXIS 987 (2000), aff'd, 353 N.C. 363 , 544 S.E.2d 221, 2001 N.C. LEXIS 277 (2001).

Statements by a private investigator as to what a witness to an accident told him about the accident did not meet the requirements of G.S. 1A-1 , N.C. R. Civ. P. 56(e); therefore, these portions of the plaintiff’s affidavits were properly stricken as inadmissible hearsay, irrelevant, or violative of the parole evidence rule, and the portions of the affidavits that remained provided no support to the plaintiff at summary judgment. Furthermore, the plaintiff offered no evidence that the proffered statement possessed certain circ*mstantial guarantees of trustworthiness that would justify its admission. Therefore, the trial court properly granted summary judgment to the defendants. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

Oral Testimony Is Admissible. —

Oral testimony at a hearing on a motion for summary judgment is admissible by virtue of G.S. 1A-1 , Rule 43(e). Walton v. Meir, 14 N.C. App. 183, 188 S.E.2d 56, 1972 N.C. App. LEXIS 2085 , cert. denied, 281 N.C. 515 , 189 S.E.2d 35, 1972 N.C. LEXIS 1100 (1972).

Oral testimony on a motion for summary judgment may be admissible in proper cases under G.S. 1A-1 , Rule 43(e). Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

Oral testimony may be introduced into the record at the summary judgment hearing as long as it is not used overzealously. Propst Constr. Co. v. North Carolina Dep't of Transp., 56 N.C. App. 759, 290 S.E.2d 387, 1982 N.C. App. LEXIS 2539 , modified, 307 N.C. 124 , 296 S.E.2d 295, 1982 N.C. LEXIS 1604 (1982).

While under G.S. 1A-1 , Rule 43(e) oral testimony is permissible on a motion for summary judgment, the admission of such testimony is in the court’s discretion. Hillman v. United States Liab. Ins. Co., 59 N.C. App. 145, 296 S.E.2d 302, 1982 N.C. App. LEXIS 3078 (1982).

In limited cases, oral testimony at a hearing on a motion for summary judgment may be offered; however, a trial court is only to rely on such testimony in a supplementary capacity, to provide a small link of required evidence, but not as the main evidentiary body of the hearing. A trial court may also consider arguments of counsel as long as the arguments are not considered as facts or evidence. Strickland v. Doe, 156 N.C. App. 292, 577 S.E.2d 124, 2003 N.C. App. LEXIS 115 (2003).

But Should Be Used Only in Supplementary Capacity. —

Under G.S. 1A-1 , Rule 43(e), oral testimony offered at a hearing on a motion for summary judgment should be used only in a supplementary capacity, to provide a small link of required evidence, and not as the main evidentiary body of the hearing. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E.2d 421, 1974 N.C. App. LEXIS 1736 (1974).

Although G.S. 1A-1 , Rule 43(e) permits the court to hear oral testimony in ruling on a motion for summary judgment, this procedure should normally be utilized only if a small link of evidence is needed, and not for a long drawn out hearing to determine whether there is to be a trial. Chandler v. Cleveland Sav. & Loan Ass'n, 24 N.C. App. 455, 211 S.E.2d 484, 1975 N.C. App. LEXIS 2404 (1975).

Nonexpert opinion on ultimate issues may not be relied on to defend against summary judgment. Whether expert opinion on ultimate issues so presented may be relied on is not clear. Estrada v. Jaques, 70 N.C. App. 627, 321 S.E.2d 240, 1984 N.C. App. LEXIS 3880 (1984), limited, Osburn v. Danek Med., Inc., 135 N.C. App. 234, 520 S.E.2d 88, 1999 N.C. App. LEXIS 1045 (1999).

Unpled affirmative defenses may be heard for the first time on motion for summary judgment even though not asserted in the answer, at least where both parties are aware of the defense. Gillis v. Whitley's Disct. Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661, 1984 N.C. App. LEXIS 3643 (1984).

The nature of summary judgment procedure coupled with the generally liberal rules relating to amendment of pleadings, require that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on motion for summary judgment. C.C. Walker Grading & Hauling, Inc. v. S.R.F. Mgt. Corp., 66 N.C. App. 170, 310 S.E.2d 615, 1984 N.C. App. LEXIS 2830 , rev'd, 311 N.C. 170 , 316 S.E.2d 298, 1984 N.C. LEXIS 1733 (1984).

Arguments of Counsel. —

On a motion for summary judgment the court may consider the arguments of counsel as long as the arguments are not considered as facts or evidence. Gebb v. Gebb, 67 N.C. App. 104, 312 S.E.2d 691, 1984 N.C. App. LEXIS 3011 (1984).

Information adduced from counsel during oral arguments cannot be used to support a motion for summary judgment. Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159, 1976 N.C. App. LEXIS 2018 (1976).

A certified arbitration award and confirmation order may be considered by the trial judge in ruling on plaintiff’s motion for summary judgment on the amount of its lien in an action to enforce a mechanics’ lien, and absent any evidence to the contrary, would be sufficient to show that there is no material issue of fact as regards the amount owing plaintiff under the contract. Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978).

Court Must Consider All Evidence Before It. —

The procedure under this rule being designed to allow a preview or forecast of evidence or proof of the parties in order to determine whether a jury trial is necessary and to allow the trial court to “pierce the pleadings” to determine whether any genuine factual controversy exists, it is therefore incumbent on the trial court to consider all of the papers before it on hearing the motion in order to make an appropriate disposition of the motion. Seay v. Allstate Ins. Co., 59 N.C. App. 220, 296 S.E.2d 30, 1982 N.C. App. LEXIS 3075 (1982).

Striking of Inadmissible Evidence Because of Parole Evidence Rule. —

Where pleadings, affidavits, and deposition offered by defendant did not set forth facts that would be admissible in evidence because of the parole evidence rule, such evidence was properly stricken. Borden, Inc. v. Brower, 284 N.C. 54 , 199 S.E.2d 414, 1973 N.C. LEXIS 775 (1973); North Carolina Nat'l Bank v. Gillespie, 291 N.C. 303 , 230 S.E.2d 375, 1976 N.C. LEXIS 975 (1976).

Where the record did not show that plaintiff objected to parol evidence in the form of affidavits submitted by the defendants, the facts set out in these affidavits were competent evidence to be considered by the trial court in ruling upon motions for summary judgment. Lindsey v. North Carolina Farm Bureau Mut. Ins. Co., 103 N.C. App. 432, 405 S.E.2d 803, 1991 N.C. App. LEXIS 793 (1991).

Unopposed Evidence Supporting Motion May Not Be Sufficient. —

The evidentiary matter supporting the moving party’s motion may not be sufficient to satisfy his burden of proof, even though the opposing party fails to present any competent counteraffidavits or other materials. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972).

Acceptance of Statements in Affidavits Dependent on Credibility. —

Affidavits in a motion for summary judgment do not supply all the needed proof. The statements in the affidavits may not suffice, because their acceptance as proof depends on credibility. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

And Court Need Not Find Uncontradicted Affidavits and Proof Credible. —

The trial court is not required to assign credibility to a party’s affidavits merely because they are uncontradicted. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Movant’s uncontradicted and unimpeached proofs in support of his motion for summary judgment do not import veracity merely because they are uncontradicted by the opposing party. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Courts are slow to grant summary judgment when movant presents his own affidavit concerning facts peculiarly within his knowledge. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary judgment may not be granted in favor of the party having the burden of proof when his right to recover depends upon credibility of his witnesses. Shearin v. National Indem. Co., 27 N.C. App. 88, 218 S.E.2d 207, 1975 N.C. App. LEXIS 1761 (1975).

When Motion May Be Granted on Basis of Party’s Own Affidavits. —

Summary judgment may be granted for a party with the burden of proof on the basis of his own affidavits: (1) When there are only latent doubts as to affiant’s credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize section (f) of this rule; and (3) when summary judgment is otherwise appropriate. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976); Taylor v. City of Raleigh, 290 N.C. 608 , 227 S.E.2d 576, 1976 N.C. LEXIS 1123 (1976); Wachovia Bank & Trust Co. v. Peace Broadcasting Corp., 32 N.C. App. 655, 233 S.E.2d 687, 1977 N.C. App. LEXIS 2033 , cert. denied, 292 N.C. 734 , 235 S.E.2d 788, 1977 N.C. LEXIS 1207 (1977); Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661 , 242 S.E.2d 785, 1978 N.C. LEXIS 1295 (1978); Carson v. Sutton, 35 N.C. App. 720, 242 S.E.2d 535, 1978 N.C. App. LEXIS 3067 (1978); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979); Courtney v. Courtney, 40 N.C. App. 291, 253 S.E.2d 2, 1979 N.C. App. LEXIS 2253 (1979); Lula Conrad Hoots Mem. Hosp. v. Hoots, 40 N.C. App. 595, 253 S.E.2d 330, 1979 N.C. App. LEXIS 2291 , cert. denied, 297 N.C. 609 , 257 S.E.2d 218, 1979 N.C. LEXIS 1495 (1979); Stroup Sheet Metal Works, Inc. v. Heritage, Inc., 43 N.C. App. 27, 258 S.E.2d 77, 1979 N.C. App. LEXIS 3031 (1979); Brooks v. Mount Airy Rainbow Farms Center, Inc., 48 N.C. App. 726, 269 S.E.2d 704, 1980 N.C. App. LEXIS 3320 (1980).

Summary judgment may be proper even where based in part upon the affidavits of the movant and his witnesses where there are only latent doubts as to the credibility of the affiants. North Carolina State Bd. of Registration v. IBM Corp., 31 N.C. App. 599, 230 S.E.2d 552, 1976 N.C. App. LEXIS 2074 (1976).

Effect of Prior Judicial Admissions by Party. —

Vehicular passenger’s prior testimony in two lawsuits, in which the passenger stated that the driver of another vehicle was at fault for an auto accident, unequivocally and unambiguously repudiated the allegations in the passenger’s complaint and affidavit against the driver of the vehicle in which the passenger was riding. Therefore, the passenger’s prior statements constituted judicial admissions by which the passenger was bound. Hash v. Estate of Henley, 190 N.C. App. 645, 661 S.E.2d 52, 2008 N.C. App. LEXIS 1229 (2008).

Reliance on Uncontradicted Affidavit as to Nonexistence of Genuine Issue. —

Party with the burden of proof may be entitled to summary judgment where he relies on the uncontradicted affidavit of a witness to establish that a genuine issue does not exist as to a material fact. If the circ*mstances show, however, that a material issue exists, the motion should be denied. Lacy J. Miller Mach. Co. v. Miller, 58 N.C. App. 300, 293 S.E.2d 622, 1982 N.C. App. LEXIS 2767 (1982).

Court should not resolve an issue of credibility or conduct a “trial by affidavits” at a hearing on a motion for summary judgment, especially in cases where knowledge of the fact is largely under the control of the movants. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

A “trial by affidavits” at a hearing on a motion for summary judgment is clearly impermissible. Wall v. Flack, 15 N.C. App. 747, 190 S.E.2d 671, 1972 N.C. App. LEXIS 2021 (1972).

The trial court, upon motion for summary judgment under this rule, should not undertake to resolve an issue of credibility. Commercial Credit Corp. v. McCorkle, 19 N.C. App. 397, 198 S.E.2d 736, 1973 N.C. App. LEXIS 1666 (1973).

If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); City of Thomasville v. Lease-Afex, Inc., 300 N.C. 651 , 268 S.E.2d 190, 1980 N.C. LEXIS 1130 (1980).

Credibility Not to Be Determined by Paper Affirmations or Denials. —

Absent an unequivocal waiver of a trial on oral testimony, credibility ought not, when witnesses are available, be determined by mere paper affirmations or denials that inherently lack the important element of witness’ demeanor. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

Credibility of Testimony of Interested Witnesses to Be Submitted to Jury. —

The fact that a witness is interested in the result of the suit has been held to be sufficient to require the credibility of his testimony to be submitted to the jury. Lee v. Shor, 10 N.C. App. 231, 178 S.E.2d 101, 1970 N.C. App. LEXIS 1242 (1970).

Where plaintiffs’ interest necessarily raises a question of the credibility of their testimony in support of their motion for summary judgment, and their testimony cannot, under any circ*mstances, be accorded credibility as a matter of law, summary judgment would be inappropriate. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Party may not defeat summary judgment by presenting deposition testimony which contradicts prior judicial admissions of his pleadings. Rollins v. Junior Miller Roofing Co., 55 N.C. App. 158, 284 S.E.2d 697, 1981 N.C. App. LEXIS 2992 (1981).

Testimony contained in an affidavit of nonmovant which contradicts his prior sworn testimony may not be used by him to defeat a summary judgment motion where the only issue of fact raised by the affidavit is the credibility of the affiant. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979).

Prima Facie Evidence of Negligent Supervision. —

Plaintiff’s forecast of evidence was sufficient to demonstrate that she could make out a prima facie case of negligent supervision. Rouse v. Pitt County Mem. Hosp., 116 N.C. App. 241, 447 S.E.2d 505, 1994 N.C. App. LEXIS 905 (1994), aff'd, 343 N.C. 186 , 470 S.E.2d 44, 1996 N.C. LEXIS 266 (1996).

If different material conclusions can be drawn from the evidence, summary judgment should be denied, even though the evidence is uncontradicted. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316, 1979 N.C. App. LEXIS 2303 (1979); Spector United Employees Credit Union v. Smith, 45 N.C. App. 432, 263 S.E.2d 319, 1980 N.C. App. LEXIS 2650 (1980).

Where the evidence of the party to be awarded summary judgment is self-contradictory or allows reasonable inferences inconsistent with conclusions necessary to entitle that party to summary judgment, the trial court should not enter summary judgment and should allow the case to proceed to trial. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment should be denied if different material conclusions can be drawn from the evidence. Godwin Sprayers, Inc. v. Utica Mut. Ins. Co., 59 N.C. App. 497, 296 S.E.2d 843, 1982 N.C. App. LEXIS 3155 (1982); Carlton v. Carlton, 74 N.C. App. 690, 329 S.E.2d 682, 1985 N.C. App. LEXIS 3572 (1985); Warren v. Rosso & Mastracco, Inc., 78 N.C. App. 163, 336 S.E.2d 699, 1985 N.C. App. LEXIS 4260 (1985); Herbert v. Browning-Ferris Indus. of S. Atl., Inc., 90 N.C. App. 339, 368 S.E.2d 416, 1988 N.C. App. LEXIS 555 (1988).

As Where Moving Papers Affirmatively Disclose a Material Controversy. —

Where the moving papers affirmatively disclose that the nature of the controversy presents a good faith and actual, as distinguished from formal, dispute on one or more material issues, summary judgment cannot be used. Page v. Sloan, 281 N.C. 697 , 190 S.E.2d 189, 1972 N.C. LEXIS 1162 (1972); Pitts v. Village Inn Pizza, Inc., 296 N.C. 81 , 249 S.E.2d 375, 1978 N.C. LEXIS 1162 (1978).

Motion for summary judgment must be denied if the opposing party submits material which casts doubts upon the existence of a material fact or upon the credibility of a material witness, or if such doubts are raised by movant’s own evidentiary material. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Summary judgment is appropriate when movant shows through discovery that the opposing party cannot produce evidence to support an essential element of his claim. Dellinger v. Belk, 34 N.C. App. 488, 238 S.E.2d 788, 1977 N.C. App. LEXIS 1725 (1977), cert. denied, 294 N.C. 182 , 241 S.E.2d 517, 1978 N.C. LEXIS 1198 (1978).

When an insured sued an insurer for negotiating his life insurance premium payment and then refunding that payment and stating that coverage had never existed, and the insured moved for summary judgment, the insurer’s affidavit under G.S. 1A-1 , N.C. R. Civ. P. 56(f) that discovery was incomplete did not preclude the trial court from granting summary judgment because nothing sought by the insurer in its pending discovery requests bore on the questions of its waiver of the “good health” provision of the policy, whether the insurer completed an accord and satisfaction by negotiating the insurer’s refund check, or whether the insurer had committed unfair and deceptive practices. Cullen v. Valley Forge Life Ins. Co., 161 N.C. App. 570, 589 S.E.2d 423, 2003 N.C. App. LEXIS 2273 (2003).

Lack of Cause of Action or Defense Supports Grant of Judgment. —

Where the pleadings or proof disclose that no cause of action or defense exists, summary judgment may be granted. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Nat Harrison Assocs. v. North Carolina State Ports Auth., 280 N.C. 251 , 185 S.E.2d 793, 1972 N.C. LEXIS 1225 (1972); Norfolk & W. Ry. v. Werner Indus., Inc., 286 N.C. 89 , 209 S.E.2d 734, 1974 N.C. LEXIS 1181 (1974); Barrett v. Phillips, 29 N.C. App. 220, 223 S.E.2d 918, 1976 N.C. App. LEXIS 2446 (1976).

Where the pleadings or proof disclose that no cause of action exists, summary judgment may be granted. Davenport v. Davenport, 25 N.C. App. 621, 214 S.E.2d 294, 1975 N.C. App. LEXIS 2341 (1975); Williams v. Congdon, 43 N.C. App. 53, 257 S.E.2d 677, 1979 N.C. App. LEXIS 3023 (1979); Rockingham Square Shopping Center, Inc. v. Town of Madison, 45 N.C. App. 249, 262 S.E.2d 705, 1980 N.C. App. LEXIS 2619 (1980).

Summary judgment is appropriately entered if the movant establishes that an essential part or element of the opposing party’s claim is nonexistent. Rorrer v. Cooke, 313 N.C. 338 , 329 S.E.2d 355, 1985 N.C. LEXIS 1543 (1985).

Where the pleadings or proof of the plaintiff disclose that no claim exists, summary judgment for defendant is proper. Colonial Bldg. Co. v. Justice, 83 N.C. App. 643, 351 S.E.2d 140, 1986 N.C. App. LEXIS 2744 (1986).

When the only issues to be decided are issues of law, summary judgment is proper. Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979); Brawley v. Brawley, 87 N.C. App. 545, 361 S.E.2d 759, 1987 N.C. App. LEXIS 3274 (1987).

And Presence of Difficult Questions of Law Is No Barrier. —

Where there is no genuine issue as to the facts, the presence of important or difficult questions of law is no barrier to the granting of summary judgment. Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727, 1978 N.C. App. LEXIS 2330 (1978), aff'd, 297 N.C. 696 , 256 S.E.2d 688, 1979 N.C. LEXIS 1267 (1979).

Summary judgment is appropriate where there is no genuine issue of material fact and the case presents only questions of law. This is true even if the questions of law are complex. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

Movant Entitled to Summary Judgment Where Directed Verdict Would Be Required. —

If the materials before the court at the summary judgment hearing would require a directed verdict for defendants at trial, defendants are entitled to summary judgment. Whitaker v. Blackburn, 47 N.C. App. 144, 266 S.E.2d 763, 1980 N.C. App. LEXIS 2995 (1980).

If a verdict would be directed for the movant on the evidence presented at the hearing on the motion for summary judgment, the motion for summary judgment may properly be granted. Dendy v. Watkins, 288 N.C. 447 , 219 S.E.2d 214, 1975 N.C. LEXIS 1010 (1975); Haskins v. Carolina Power & Light Co., 47 N.C. App. 664, 267 S.E.2d 587, 1980 N.C. App. LEXIS 3164 (1980).

On motion for summary judgment, the test is whether the moving party presents materials which would require a directed verdict in his favor if offered as evidence at trial. Haithco*ck v. Chimney Rock Co., 10 N.C. App. 696, 179 S.E.2d 865, 1971 N.C. App. LEXIS 1700 (1971); Coakley v. Ford Motor Co., 11 N.C. App. 636, 182 S.E.2d 260, 1971 N.C. App. LEXIS 1602 , cert. denied, 279 N.C. 393 , 183 S.E.2d 244, 1971 N.C. LEXIS 815 (1971); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Fitzgerald v. Wolf, 40 N.C. App. 197, 252 S.E.2d 523, 1979 N.C. App. LEXIS 2596 (1979).

Unless Nonmovant Shows a Triable Issue of Fact. —

Where a motion for summary judgment is supported by proof which would require a directed verdict in his favor at trial, movant is entitled to summary judgment, unless the opposing party comes forward to show a triable issue of material fact. In re Will of Edgerton, 29 N.C. App. 60, 223 S.E.2d 524, 1976 N.C. App. LEXIS 2377 , cert. denied, 290 N.C. 308 , 225 S.E.2d 832, 1976 N.C. LEXIS 1062 (1976); Old S. Life Ins. Co. v. Bank of N.C. 36 N.C. App. 18, 244 S.E.2d 264, 1978 N.C. App. LEXIS 2401 (1978); Watson v. Watson, 49 N.C. App. 58, 270 S.E.2d 542, 1980 N.C. App. LEXIS 3360 (1980).

The opposing party is not entitled to have the motion for summary judgment denied on the mere hope that at trial he will be able to discredit movant’s evidence; he must, at the hearing, be able to point out to the court something indicating the existence of a triable issue of material fact. Kidd v. Early, 289 N.C. 343 , 222 S.E.2d 392, 1976 N.C. LEXIS 1290 (1976).

Or Shows Unavailability of Affidavits. —

If the party moving for summary judgment by affidavit or otherwise presents materials which would require a directed verdict in his favor if presented at trial, he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him or comes forward with affidavits or other materials that show there is a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); First Fed. Sav. & Loan Ass'n v. Branch Banking & Trust Co., 14 N.C. App. 567, 188 S.E.2d 661, 1972 N.C. App. LEXIS 2177 , rev'd, 282 N.C. 44 , 191 S.E.2d 683, 1972 N.C. LEXIS 885 (1972); Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, 1972 N.C. App. LEXIS 2125 , cert. denied, 281 N.C. 623 , 190 S.E.2d 466, 1972 N.C. LEXIS 1129 (1972); Brooks v. Smith, 27 N.C. App. 223, 218 S.E.2d 489, 1975 N.C. App. LEXIS 1802 (1975).

If plaintiff’s claim is barred by the statute of limitations, defendant is entitled to judgment as a matter of law and summary judgment is appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E.2d 878, 1971 N.C. App. LEXIS 1703 (1971); Poston v. Morgan-Schultheiss, Inc., 46 N.C. App. 321, 265 S.E.2d 615, 1980 N.C. App. LEXIS 2816 (1980).

Ordinarily, the question of whether a cause of action is barred by the statute of limitations is a mixed question of law and fact. However, when the bar is properly pleaded and the facts are admitted or are not in conflict, the question of whether the action is barred becomes one of law, and summary judgment is appropriate. Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488 , 329 S.E.2d 350, 1985 N.C. LEXIS 1555 (1985).

The statute of limitations, if properly pled, and if all the facts with reference thereto are admitted or established, may act as an affirmative defense, barring plaintiff’s claims and entitling defendants to summary judgment as a matter of law. Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560, 1987 N.C. App. LEXIS 2745 (1987); Rowan County Bd. of Educ. v. United States Gypsum Co., 87 N.C. App. 106, 359 S.E.2d 814, 1987 N.C. App. LEXIS 3072 (1987).

When the statute of limitations is properly pleaded and the facts of the case are not in dispute, resolution of the question becomes a matter of law, and summary judgment may be appropriate. Marshburn v. Associated Indem. Corp., 84 N.C. App. 365, 353 S.E.2d 123, 1987 N.C. App. LEXIS 2508 (1987); Boundreau v. Baughman, 86 N.C. App. 165, 356 S.E.2d 907, 1987 N.C. App. LEXIS 2680 (1987), aff'd in part and rev'd in part, 322 N.C. 331 , 368 S.E.2d 849, 1988 N.C. LEXIS 366 (1988).

The failure of the defendant to plead res judicata is not a bar to that issue being raised at hearing on summary judgment. County of Rutherford ex rel. Child Support Enforcement Agency ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 394 S.E.2d 263, 1990 N.C. App. LEXIS 818 (1990).

When defendant establishes a complete defense to plaintiff’s claim, he is entitled to the quick and final disposition of that claim which summary judgment provides. Ballinger v. North Carolina Dep't of Revenue, 59 N.C. App. 508, 296 S.E.2d 836, 1982 N.C. App. LEXIS 3153 (1982), cert. denied, 307 N.C. 576 , 299 S.E.2d 645, 1983 N.C. LEXIS 1176 (1983).

The court may grant summary judgment if the movant conclusively establishes every element of its claim or conclusively establishes a complete defense or legal bar to the nonmovant’s claim. VEPCO v. Tillett, 80 N.C. App. 383, 343 S.E.2d 188, 1986 N.C. App. LEXIS 2212 , cert. denied, 317 N.C. 715 , 347 S.E.2d 457, 1986 N.C. LEXIS 2452 (1986).

A defending party is entitled to summary judgment if he can show that no claim for relief exists or that the claimant cannot overcome an affirmative defense to the claim. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61, 1986 N.C. App. LEXIS 2162 (1986).

A defending party is entitled to summary judgment if it can establish that no claim for relief exists or that the claimant cannot overcome an affirmative defense or legal bar to the claim. Wilder v. Hobson, 101 N.C. App. 199, 398 S.E.2d 625, 1990 N.C. App. LEXIS 1209 (1990).

Motive, like intent or other states of mind, is rarely susceptible to direct proof and almost always depends on inferences drawn from circ*mstantial evidence. Consequently, summary judgment should rarely be granted in cases in which it is at issue. Burrow v. Westinghouse Elec. Corp., 88 N.C. App. 347, 363 S.E.2d 215, 1988 N.C. App. LEXIS 31 (1988).

Constitutional Arguments Susceptible to Summary Judgment. —

Since the general rule is that the constitutionality of a statute is to be determined merely from an examination of the statute itself and of only those matters of which the court may take judicial notice, plaintiff ’s constitutional arguments presented a question of law and were properly susceptible to summary judgment. Baugh v. Woodard, 56 N.C. App. 180, 287 S.E.2d 412, 1982 N.C. App. LEXIS 2346 (1982).

Summary judgment is not a proper remedy for failure to join a necessary party. Dildy v. Southeastern Fire Ins. Co., 13 N.C. App. 66, 185 S.E.2d 272, 1971 N.C. App. LEXIS 1158 (1971).

Summary judgment procedure is available to both plaintiff and defendant. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E.2d 425, 1970 N.C. App. LEXIS 1425 (1970); Kessing v. National Mtg. Corp., 278 N.C. 523 , 180 S.E.2d 823, 1971 N.C. LEXIS 1010 (1971); Clear Fir Sales Co. v. Carolina Plywood Distrib., Inc., 13 N.C. App. 429, 185 S.E.2d 737, 1972 N.C. App. LEXIS 2257 (1972); McNair v. Boyette, 282 N.C. 230 , 192 S.E.2d 457, 1972 N.C. LEXIS 930 (1972).

A defending party may show as a matter of law that he is entitled to summary judgment in his favor by showing that there is no genuine issue of material fact concerning an essential element of the claimant’s claim for relief and that the claimant cannot prove the existence of that element. Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281, 1979 N.C. App. LEXIS 2389 (1979); Ramsey v. Rudd, 49 N.C. App. 670, 272 S.E.2d 162, 1980 N.C. App. LEXIS 3437 (1980).

If defendants clearly establish that there is no genuine issue as to the nonexistence of material facts which are necessary as an essential element of any cause of action against them, then they are entitled to summary judgment on that action. Clodfelter v. Bates, 44 N.C. App. 107, 260 S.E.2d 672, 1979 N.C. App. LEXIS 3182 (1979), cert. denied, 299 N.C. 329 , 265 S.E.2d 394, 1980 N.C. LEXIS 1004 (1980).

A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim. Little v. National Servs. Indus., Inc., 79 N.C. App. 688, 340 S.E.2d 510, 1986 N.C. App. LEXIS 2114 (1986).

Party Need Not Move for Judgment in Order to Be Entitled to It. —

Section (c) of this rule does not require that a party move for summary judgment in order to be entitled to it. Greenway v. North Carolina Farm Bureau Mut. Ins. Co., 35 N.C. App. 308, 241 S.E.2d 339, 1978 N.C. App. LEXIS 2963 (1978); McNair Constr. Co. v. Fogle Bros. Co., 64 N.C. App. 282, 307 S.E.2d 200, 1983 N.C. App. LEXIS 3264 (1983).

Summary judgment may be granted in favor of a nonmoving party in proper cases. A-S-P Assocs. v. City of Raleigh, 38 N.C. App. 271, 247 S.E.2d 800, 1978 N.C. App. LEXIS 2167 (1978), rev'd, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Summary judgment in favor of the nonmovant is appropriate when the evidence presented demonstrates that no material issues of fact are in dispute, and the nonmovant is entitled to entry of judgment as a matter of law. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

In an appropriate case, summary judgment may be rendered against the moving party. Candid Camera Video World, Inc. v. Mathews, 76 N.C. App. 634, 334 S.E.2d 94, 1985 N.C. App. LEXIS 3931 (1985).

After Movant Is Given Opportunity to Show Existence of a Genuine Issue. —

Summary judgment for the nonmoving party should be granted only when the moving party has been given adequate opportunity to show in opposition that there is a genuine issue of fact to be resolved. A-S-P Assocs. v. City of Raleigh, 298 N.C. 207 , 258 S.E.2d 444, 1979 N.C. LEXIS 1362 (1979).

Granting of Summary Judgment by Judge on Own Motion. —

The granting of summary judgment or judgment on the pleadings by the trial judge on his own motion is a practice not to be commended, and is clearly erroneous where there is a factual question to be answered. Crews v. Taylor, 21 N.C. App. 296, 204 S.E.2d 193, 1974 N.C. App. LEXIS 1784 (1974).

Rarely is it proper to enter summary judgment in favor of the party having the burden of proof. Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350, 1984 N.C. App. LEXIS 3400 (1984).

Summary judgment may be granted for a party with the burden of proof on his own affidavits (1) when there are only latent doubts as to the affiant’s credibility; (2) when the opposing party has failed to introduce any materials supporting his opposition, failed to point to specific areas of impeachment and contradiction, and failed to utilize section (f) of this rule; and (3) when summary judgment is otherwise appropriate. Almond Grading Co. v. Shaver, 74 N.C. App. 576, 329 S.E.2d 417, 1985 N.C. App. LEXIS 3517 (1985); Valdese Gen. Hosp. v. Burns, 79 N.C. App. 163, 339 S.E.2d 23, 1986 N.C. App. LEXIS 2052 (1986).

Plaintiff’s bare assertions in unverified complaint, which were denied by defendant, held insufficient to support entry of summary judgment for plaintiff. Smith v. Rushing Constr. Co., 84 N.C. App. 692, 353 S.E.2d 692, 1987 N.C. App. LEXIS 2540 (1987).

Where plaintiff made a motion for summary judgment, which was denied, and later plaintiff filed a second motion for summary judgment involving the same issue as presented by the initial motion, the trial court erred by granting plaintiff’s second motion for summary judgment. Taylorsville Fed. Savs. & Loan Ass'n v. Keen, 110 N.C. App. 784, 431 S.E.2d 484, 1993 N.C. App. LEXIS 691 (1993).

Appellate Conclusion Improper. —

Where Court of Appeals majority opinion included a paragraph that concluded that a balancing of the equities favored denial of relief to plaintiff, such a conclusion was improper at the summary judgment stage. Roberts v. Madison County Realtors Ass'n, 344 N.C. 394 , 474 S.E.2d 783, 1996 N.C. LEXIS 485 (1996).

Not All Parts of Distributer’s Affidavits and Complaint Were Based on Personal Knowledge. —

Despite a distributor’s claims that his manufacturer’s export agent, who lived in Great Britain, had tortiously interfered with the distributor-manufacturer relationship, in that the agent hired the distributor’s salesman with the intention of establishing his own distributorship, a trial court did not err in ruling that under the Due Process Clause, no personal jurisdiction existed over the manager. The personal knowledge requirement for documents and affidavits, as contained in G.S. 1A-1 , N.C. R. Civ. P. 56(e), applied to motions to dismiss under G.S. 1A-1 , N.C. R. Civ. P. 12(b)(2), not all parts of the distributor’s affidavits and complaint were based on personal knowledge, and only those parts based on personal knowledge, which were insufficient to show personal jurisdiction, could be considered. Deer Corp. v. Carter, 177 N.C. App. 314, 629 S.E.2d 159, 2006 N.C. App. LEXIS 968 (2006).

Affidavit Statements Based on Hearsay Would Not be Admissible. —

Trial court erred in granting summary judgment to an employer because the statements in the affidavits made by three affiants to establish an employee’s on-call pay rate, and in the exhibits submitted in support of their affidavits, were hearsay under G.S. 8C-1 , N.C. R. Evid. 801(c) and were inadmissible under G.S. 1A-1 , N.C. R. Civ. P. 56(e) to prove the employee’s on-call pay rate. Further, none of the affidavits addressed the foundational requirements for the admission of evidence through a business record, and thus did not present personal knowledge setting forth facts admissible in evidence under G.S. 8C-1 , N.C. R. Evid. 803(6). Gilreath v. N.C. HHS, 177 N.C. App. 499, 629 S.E.2d 293, 2006 N.C. App. LEXIS 1077 , cert. denied, 360 N.C. 576 , 635 S.E.2d 595, 2006 N.C. LEXIS 925 (2006), aff'd, 361 N.C. 109 , 637 S.E.2d 537, 2006 N.C. LEXIS 1295 (2006).

Deposition Testimony Contradicting Affidavit. —

Summary judgment for defendants in a medical negligence action was affirmed; plaintiffs’ expert witness affidavit could not be considered to establish any material facts in support of proximate cause because it was contradicted by the expert’s deposition testimony that whether particular acts caused particular injuries could not be determined. Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299, 704 S.E.2d 540, 2011 N.C. App. LEXIS 66 (2011).

Inadmissible Averments in Affidavit Properly Disregarded. —

Decedent’s estate’s contention that the trial court erred by allegedly considering an affidavit because it contained statements made by a decedent and her deceased sister was without merit since to the extent the challenged affidavit contained averments that would violate N.C. R. Evid. 601(c) if admitted as evidence at a later trial, the appellate court assumed the trial court properly disregarded them. Forbis v. Neal, 361 N.C. 519 , 649 S.E.2d 382, 2007 N.C. LEXIS 813 (2007).

Striking of Affidavits and Deposition. —

Testimony contained in four affidavits and a deposition submitted by the decedent’s son regarding the intent of the decedent to disinherit one of the other beneficiaries in a will was properly stricken under G.S. 1A-1 because the declarations in the affidavits were incompetent to establish the decedent’s intent and were inadmissible for that purpose. Hammer v. Hammer, 179 N.C. App. 408, 633 S.E.2d 878, 2006 N.C. App. LEXIS 1906 (2006).