Reid v. Reid

233 S.E.2d 620, 32 N.C. App. 750, 1977 N.C. App. LEXIS 2053

• Court: Court of Appeals of North Carolina
• Decided: April 6, 1977
• Docket: No. 7625DC765
• Status: Published

Opinion

MARTIN, Judge.

The defendant has grouped her eleven assignments of error into three arguments in her brief. She first contends that the trial court erred in granting the plaintiff’s motion for summary judgment and dismissal of her counterclaim for the reason that there was a genuine issue of material fact. We agree.

We note, first of all, that the trial court went far beyond the purview of summary judgment. It appears that the court considered it to be its function to make findings of fact on conflicting evidence, to make conclusions of law, and to enter final judgment between the parties. We repeat again what we have said on numerous occasions, that, in passing upon a motion for summary judgment pursuant to G.S. 1A-1, Rule 56, it is not the purpose of the court to resolve disputed material issues of fact. Stonestreet v. Motors, Inc., 18 N.C. App. 527, 197 S.E. 2d 579 (1973); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E. 2d 147 (1971). The court does not decide facts but makes a determination as to whether there exists an issue which is germane to the action. Leasing Inc. v. Dan-Cleve Corp., 31 N.C. App. 634, 230 S.E. 2d 559 (1976); Furst v. Loftin, 29 N.C. App. 248, 224 S.E. 2d 641 (1976). Stated differently, it is no part of the court’s function to decide issues of fact upon a motion for summary judgment; rather its sole function is to determine whether there is an issue of fact to be tried. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971); Stonestreet v. Motors, Inc., supra. If findings of fact are necessary to resolve an issue as to a material fact, then summary judgment is improper. Leasing Inc. v. Dan-Cleve Corp., supra; Insurance Agency v. Leasing Corp., 26 N.C. App. 138, 215 S.E. 2d 162 (1975).

In the instant case, both parties offered disputed evidence concerning, for example, incomes and expenses. The trial court, nevertheless, made “findings of fact” as to these incomes and expenses in its final judgment. In making these findings, we feel that the court passed on the credibility of the evidence and resolved disputed issues of fact rather than merely determining whether there was a genuine issue of material fact. The court, in passing on the motion for summary judgment, therefore acted in contravention of the principles outlined above.

Even if we assume, arguendo, that the trial court did not act improperly in stating “findings of fact,” we are, nevertheless, bound to conclude, for an additional reason, that the motion for summary judgment should not have been granted. We have stated on numerous occasions that:

“Summary judgment is proper only when 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.” (Citations omitted.) Stonestreet v. Motors, Inc., supra at 530, 197 S.E. 2d at 581 (emphasis added).

In the case at bar, there existed at least one issue of fact. For example, the defendant wife offered verified pleadings, interrogatories, and an affidavit tending to show that her expenses were greater than her income and that she did not have adequate means to subsist. In response to these contentions, the plaintiff answered that he was “without sufficient knowledge or information to form a belief as to their truth.” Under the North Carolina Rules of Civil Procedure, this type of answer “has the effect of a denial.” G.S. 1A-1, Rule 8(b). Thus, there existed a genuine issue as to a material fact and, therefore, summary judgment was improper.

Reversed and remanded.

Judges Morris and Vaughn concur.