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Bell v. Martin

Filed: October 2, 1979.

MARY FRANCES BELL, PLAINTIFF
v.
BOBBY MARTIN, JR., DEFENDANT



Appeal by defendant from Saunders and Bennett, Judges. Judgment entered 28 August 1978 and order entered 3 November 1978 in District Court, Mecklenburg County. Heard in the Court of Appeals 22 August 1979.

Wells, Judge. Judges Clark and Erwin concur.

Wells

The questions raised on appeal are whether the trial court properly granted plaintiff's motion for summary judgment and

whether the trial court was without jurisdiction to hear defendant's motion for relief from judgment.

Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978); Knowles v. Coach Co., 41 N.C. App. 709, 255 S.E.2d 576 (1979). Summary judgment is available to a claimant as well as a defendant. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971).

Here the defendant failed to file any answer to plaintiff's complaint or any affidavit in opposition to plaintiff's motion pursuant to Rule 56 prior to the hearing on this motion. Under Rule 8(d), "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading." All averments of the complaint other than those as to the amount of damage will stand admitted unless the defendant answers. Fagan v. Hazzard, 29 N.C. App. 618, 225 S.E.2d 640 (1976); 2A Moore's Federal Practice para. 8.29 (2d ed. 1975).

The defendant argues that the plaintiff should properly have moved for entry of judgment by default under Rule 55 and not for summary judgment under Rule 56. We find this contention without merit. Rule 56(a) provides that summary judgment is available to a claimant anytime after the expiration of thirty days from the commencement of the action. See Village, Inc. v. Financial Corop., 27 N.C. App. 403, 219 S.E.2d 242 (1975), disc. rev. denied, 289 N.C. 302, 222 S.E.2d 695 (1976); Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80 (1972).

In the case before us it is clear that defendant, by failing to file an answer within nine months after receiving service of plaintiff's summons and complaint, waived his right to submit an answer without leave of court. Accordingly, all of the allegations of plaintiff's complaint with the exception of damages are deemed admitted under Rule 8(d). The allegations which are admitted include those that defendant is the father of plaintiff's illegitimate child, that defendant is a responsible parent within the meaning of G.S. 110-139, and that defendant is able-bodied and capable of supporting a minor child.

Defendant questions the credibility and quality of plaintiff's evidence and urges us to hold that summary judgment is improper under the peculiar requirement of G.S. 49-14(b) that a plaintiff must prove paternity of the defendant beyond a reasonable doubt. Defendant has presented a strong argument on this point, but under the limits of this case the argument cannot succeed. Since defendant failed to deny the basic, essential allegation of paternity set out in the complaint the fact stands admitted and the trial court was therefore under no obligation to travel any farther along the evidentiary trail.

Defendant cites Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976) in support of his contention that summary judgment was inappropriate in the present case. In Kidd, the Supreme Court set forth guidelines for determining the circumstances under which summary judgment may be granted to the party with the burden of proof even when the opposing party fails to submit affidavits or other evidence in support of its position. The defendant in Kidd did file an answer which denied the allegations contained in plaintiff's complaint and this denial, although general, was sufficient to place in issue all of plaintiff's allegations not admitted. The Court concluded that once placed in issue, under certain circumstances, some allegations would not by their nature be susceptible to summary administration whether or not the party opposing the motion for summary judgment supported its denial of claimant's allegations with additional evidence. In the case at bar, since the defendant did not timely deny any of the allegations in plaintiff's complaint, none of these allegations, with the exception of the amount of damages, was in issue. These allegations remain admitted and not in issue throughout the course of the lawsuit. Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168 (1972).

The defendant further maintains that entry of summary judgment against him deprived him of his right to a trial by jury. Defendant's failure to timely file a demand for trial by jury resulted in his having waived any right to a jury trial on the only issue left unadmitted by his failure to answer -- damages. G.S. 1A-1, Rule 38(d); Sykes v. Belk, 278 N.C. 106, 179 S.E.2d 439 (1971); Fagan v. Hazzard, 29 N.C. App. 618, 225 S.E.2d 640 (1976). Bastardy ...


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