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Stroup Sheet Metal Works Inc. v. Heritage Inc.

Filed: September 18, 1979.

STROUP SHEET METAL WORKS, INC.
v.
HERITAGE, INC.



Appeal by defendant from Allen, Judge (C. Walter). Judgment entered 26 September 1978 in District Court, Buncombe County. Heard in the Court of Appeals 30 August 1979.

Hedrick, Judge. Judges Vaughn and Arnold concur.

Hedrick

By assignment of error number two, defendant contends the trial court erred in granting plaintiff's motion for summary judgment.

Under Rule 56, summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. ยง 1A-1, Rule 56(c); Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). 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. The burden of establishing the lack of any triable issue of fact is on the party moving for summary judgment, and the movant's papers are carefully scrutinized while those of the opposing party are regarded with indulgence. North Carolina National Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976).

Defendant argues that summary judgment for the plaintiff was improper because the court granted summary judgment for the party with the burden of proof on the basis of that party's affidavits. Defendant contends that the affidavit relied upon by the plaintiff is that of an interested witness, and thus it raises an issue as to credibility that cannot be resolved on a Rule 56 motion. Defendant specifically argues that the statements in the affidavit that the amount charged for the work is "reasonable" present such an issue of credibility because it relates to "matters of opinion involving a substantial margin for honest error." Kidd v. Early, 289 N.C. at 366, 222 S.E.2d at 408.

In Kidd v. Early, Supra, our Supreme Court dealt at length with the issue whether summary judgment is appropriate in a case where the party with the burden of proving a material fact relies on the testimony of an interested witness to establish that fact. The Court stated:

We hold that 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 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 Rule 56(f); and (3) when summary judgment is otherwise appropriate. . . . To be entitled to summary judgment the movant must still succeed on the basis of his own materials. 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 his evidence; and that there is no standard that must be applied to the facts by the jury.

Kidd v. Early, 289 N.C. at 370, 222 S.E.2d at 410. See also Frank H. Conner Co. v. Spanish Inns Charlotte, Ltd., 294 N.C. 661, 242 S.E.2d 785 (1978).

As previously indicated, plaintiff's supporting affidavit, if true, establishes the material facts that it performed work on a heating system at a residence located at 23 Chippengreen Drive, Arden, North Carolina, at the request of the defendant; that the plaintiff charged the defendant $717.70 on an account for the work performed; that such charge was reasonable and it has not been paid. As to the credibility of the affiant, there are only latent doubts, that is, doubts which stem from the fact that he is a vice-president of the plaintiff. Defendant, however, has not produced any affidavits contradicting the statements in plaintiff's affidavit regarding the $717.70 account, has not pointed to any specific grounds for impeachment, and has not utilized Rule 56(f). Furthermore, the information in the plaintiff's supporting affidavit would necessarily have to come from a witness who was familiar with the books and records of the plaintiff, and thus it would be impossible to establish the facts necessary for plaintiff's claim by a totally disinterested witness. The affidavit is not inherently incredible, nor are the circumstances suspect. Thus, we hold that any latent doubts as to the credibility of the plaintiff's supporting affidavit do not present a bar to the granting of summary judgment in the present case.

Next the defendant argues that summary judgment for the plaintiff was inappropriate because it raised "triable issues of material fact" by its own affidavit offered in opposition to the motion. Once the plaintiff had made and supported its motion for summary judgment, under Rule 56(e), the burden was 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 answer filed by the defendant only generally denies the allegations of the complaint. The affidavit filed by the ...


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