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Whitman v. Forbes

Filed: February 16, 1982.


Appeal by plaintiff from Lane, Judge. Judgment entered 5 February 1981 in Superior Court, Lee County. Heard in the Court of Appeals 19 November 1981.

Becton, Judge. Judge Clark and Judge Whichard concur.


Issues Relating To Defendants Forbes

The plaintiff presents two arguments on this appeal relating to defendants Forbes. First, she argues that the court erred in refusing to allow her to call two witnesses to give supplemental oral testimony in opposition to defendants' motion for summary judgment. Second, she argues that the court erred in granting summary judgment for the defendants because genuine issues of material fact existed on plaintiff's constructive trust and unfair and deceptive trade practice claims. Because we agree that summary judgment should not have been granted, it is unnecessary to reach the first argument.

Procedural And Factual History

The plaintiff tendered evidence, affidavits and products of discovery, which would have shown the following. Plaintiff, a 64-year-old widow, obtained title to her home, the property in dispute here, after her husband died. She has a history of mental illness dating back several years prior to the date of the sale of her house in 1977. This illness or condition was described in affidavits from lay persons, her attorney, and a rehabilitation

therapist at a mental health center. Evidence was presented showing that the plaintiff had been committed to Dorothea Dix Hospital and that the Hospital had placed a lien on her property for payment of the indebtedness.

The plaintiff was unable to manage her affairs because of her mental condition. As a result, she became delinquent on a note owed to First Federal Savings and Loan Association of Sanford and she was behind in tax payments on the property. Because of her delinquency on the note, the Savings & Loan Association began foreclosure proceedings. Plaintiff was represented by an attorney at the statutory hearing before the Clerk of Superior Court. A public sale was set for 2 May 1977.

After the hearing, and before the date of the sale, plaintiff met with defendant Harvey Forbes (Forbes), a real estate broker, in an attempt to have her house sold. She consulted Forbes because they were members of the same church. Forbes appraised the plaintiff's house at $37,000. Other lay persons valued the property between $33,000 and $40,000. On 29 April 1977, the last business day before the foreclosure sale, the plaintiff conveyed the house to Forbes and his wife Joan Forbes for consideration of $19,332.65, such consideration included the assumption by Forbes of a loan in the amount of $16,332.65 and additional consideration of $3,000.00. Prior to the conveyance, Forbes conducted, or had conducted, a title search on the property. The check for $3,000.00 was drawn on Forbes' business account, not on his joint checking account with his wife. Further, all rentals collected from the property, some $10,250.00, have been paid to the Forbes business account.

In addition, plaintiff's evidence would show that there was no complete closing statement. Instead, there is a disbursement list. It is not signed by the parties or the attorney, and it omits the purchase price.

The defendants denied the plaintiff's allegations and attempted to show, through affidavits and records, that the plaintiff was mentally competent to execute the deed on 29 April 1977, that the fair market value of the house was closer to $18,000.00, and that Forbes did not know that plaintiff was a member of his church. Additionally, defendants maintained that any defects in

the "closing statement" were cured by the fact that plaintiff's attorney was paid to prepare the deed.

Summary Judgment


"Summary judgment is a drastic remedy and there must be a cautious observance of its requirements in order that no person might be deprived of a trial on a genuine disputed factual issue." Miller v. Snipes, 12 N.C. App. 342, 347, 183 S.E.2d 270, 273 (1971), cert. denied 279 N.C. 619, 184 S.E.2d 883 (1971). "[T]he party moving for summary judgment has the burden of positively and clearly showing that there is no genuine issue as to any material fact and any doubt as to whether such an issue exists must be resolved in the favor of the party opposing the motion." Id. at 344, 183 S.E.2d at 272.

The threshold inquiry in reviewing the propriety of the entry of summary judgment concerns whether genuine issues of material fact are raised by the pleadings and papers filed in conjunction with the motion. The burden is upon the party moving for summary judgment to show, in order to be entitled to judgment, that no such questions of fact remain to be resolved. [Citations omitted.] The movant's papers must be carefully scrutinized, while those of the opposing party are to be indulgently regarded. [Citations omitted.]

Bank v. Belk, 41 N.C. App. 328, 337, 255 S.E.2d 430, 436 (1979), disc. review denied 298 N.C. 293, 259 S.E.2d 299 (1979).

Rule 56(e) provides that parties may file affidavits in support of or in opposition to motions for summary judgment. In relevant part, it states that "[t]he court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits." G.S. 1A-1, Rule 56(e). Further,

[e]vidence which may be considered [upon motion for summary judgment] includes admissions in the pleadings, depositions on file, answers to Rule 33 interrogatories, admissions on file whether obtained under Rule 36 or in any other way, affidavits, and any other material which would be ...

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