Wall v. Flack

Court of Appeals of North Carolina

Wall v. Flack

190 S.E.2d 671, 15 N.C. App. 747, 1972 N.C. App. LEXIS 2021

CourtCourt of Appeals of North Carolina

DecidedAugust 23, 1972

Docket7229SC48

StatusPublished

Cited by1 cases

This text of 190 S.E.2d 671 (Wall v. Flack) 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.

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Wall v. Flack, 190 S.E.2d 671, 15 N.C. App. 747, 1972 N.C. App. LEXIS 2021 (N.C. Ct. App. 1972).

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Opinion

MORRIS, Judge.

The sole question presented by this appeal is whether the record discloses that the plaintiff’s claim is barred by the running of the statute of limitations. G.S. 1-52(5). If so, defendant was entitled to judgment as a matter of law and summary judgment pursuant to G.S. 1A-1, Rule 56, was appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E. 2d 878 (1971).

“ ‘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. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.’ (Citations omitted.)” Singleton v. Stewart, 280 N.C. 460, 465, 186 S.E. 2d 400 (1972).

The affidavits supporting defendant’s motion for summary judgment merely reiterate the allegation contained in her an *749 swer as to when the accident occurred, and viewing the record in the light most favorable to plaintiff, clearly show the existence of a triable issue of material fact. Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E. 2d 672 (1972). To resolve the issue of when this accident occurred would have required a “trial by affidavits” at hearing on the motion for summary judgment which is clearly impermissible. Lee v. Shor, 10 N.C. App. 231, 178 S.E. 2d 101 (1970).

The entry of summary judgment dismissing plaintiff’s action constituted error.

Reversed.

Judges Brock and Hedrick concur.

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MORRIS, Judge.

The sole question presented by this appeal is whether the record discloses that the plaintiff’s claim is barred by the running of the statute of limitations. G.S. 1-52(5). If so, defendant was entitled to judgment as a matter of law and summary judgment pursuant to G.S. 1A-1, Rule 56, was appropriate. Brantley v. Dunstan, 10 N.C. App. 706, 179 S.E. 2d 878 (1971).

“ ‘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. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded.’ (Citations omitted.)” Singleton v. Stewart, 280 N.C. 460, 465, 186 S.E. 2d 400 (1972).

The affidavits supporting defendant’s motion for summary judgment merely reiterate the allegation contained in her an *749 swer as to when the accident occurred, and viewing the record in the light most favorable to plaintiff, clearly show the existence of a triable issue of material fact. Loan Corp. v. Miller, 15 N.C. App. 745, 190 S.E. 2d 672 (1972). To resolve the issue of when this accident occurred would have required a “trial by affidavits” at hearing on the motion for summary judgment which is clearly impermissible. Lee v. Shor, 10 N.C. App. 231, 178 S.E. 2d 101 (1970).

The entry of summary judgment dismissing plaintiff’s action constituted error.

Reversed.

Judges Brock and Hedrick concur.

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190 S.E.2d 671, 15 N.C. App. 747, 1972 N.C. App. LEXIS 2021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wall-v-flack-ncctapp-1972.

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