Hodges v. Johnson

Court of Appeals of North Carolina

Hodges v. Johnson

206 S.E.2d 318, 22 N.C. App. 308, 1974 N.C. App. LEXIS 2310

CourtCourt of Appeals of North Carolina

DecidedJuly 3, 1974

DocketNo. 7411DC289

StatusPublished

This text of 206 S.E.2d 318 (Hodges v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hodges v. Johnson, 206 S.E.2d 318, 22 N.C. App. 308, 1974 N.C. App. LEXIS 2310 (N.C. Ct. App. 1974).

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Opinion

MORRIS, Judge.

Plaintiff takes the position that the entering of summary judgment effectively denied him the new trial we awarded him on his first appeal. This position is well taken.

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. Peaseley v. Coke Co., 12 N.C. App. 226, 182 S.E. 2d 810 (1971), cert. denied 279 N.C. 512 (1971). In ruling on such a motion, the trial court should not undertake to resolve any issues of credibility. Credit Corp. v. McCorkle, 19 N.C. App. 397, 198 S.E. 2d 736 (1973).

[310]*310The pleadings before the court on the motions for summary judgment make no mention of the date on which plaintiff as administrator of the estate of Maude J. Hodges filed the final account. It is apparent that an issue of fact exists relative to the running of the statute of limitations. It is equally apparent that there exists a genuine issue of material fact relative to the ownership of the property in question. The trial court erred in granting summary judgment inasmuch as defendants failed to establish through their pleadings the absence of a genuine issue of material fact. Furthermore, the trial court was in error in basing his award of summary judgment on the testimony in the first trial. We held on plaintiff’s first appeal that he was entitled to a new trial because there was no finding by the trial court as to when the cause of action accrued. It is not now sufficient for the trial court to enter summary judgment based upon testimony given at the first trial.

New trial.

Judges Hedrick and Baley concur.

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MORRIS, Judge.

Plaintiff takes the position that the entering of summary judgment effectively denied him the new trial we awarded him on his first appeal. This position is well taken.

Summary judgment may be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with 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. Peaseley v. Coke Co., 12 N.C. App. 226, 182 S.E. 2d 810 (1971), cert. denied 279 N.C. 512 (1971). In ruling on such a motion, the trial court should not undertake to resolve any issues of credibility. Credit Corp. v. McCorkle, 19 N.C. App. 397, 198 S.E. 2d 736 (1973).

[310]*310The pleadings before the court on the motions for summary judgment make no mention of the date on which plaintiff as administrator of the estate of Maude J. Hodges filed the final account. It is apparent that an issue of fact exists relative to the running of the statute of limitations. It is equally apparent that there exists a genuine issue of material fact relative to the ownership of the property in question. The trial court erred in granting summary judgment inasmuch as defendants failed to establish through their pleadings the absence of a genuine issue of material fact. Furthermore, the trial court was in error in basing his award of summary judgment on the testimony in the first trial. We held on plaintiff’s first appeal that he was entitled to a new trial because there was no finding by the trial court as to when the cause of action accrued. It is not now sufficient for the trial court to enter summary judgment based upon testimony given at the first trial.

New trial.

Judges Hedrick and Baley concur.

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Bluebook (online)

206 S.E.2d 318, 22 N.C. App. 308, 1974 N.C. App. LEXIS 2310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hodges-v-johnson-ncctapp-1974.

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