Poston v. Morgan-Schultheiss, Inc.

ARNOLD, Judge. Plaintiff argues on appeal that each defendant has failed to show that no genuine issue of material fact exists. Defendant Morgan-Schultheiss raised as its fifth defense the statute of limitations. G.S. 1-52(9) establishes a three-year statute of limitations for actions grounded in fraud or mistake, and the present action was brought more than five years after the transaction in which plaintiff conveyed her property to defendant. *323 Where it clearly appears that plaintiff’s claim is barred by the running of the statute of limitations, defendant is entitled to judgment as a matter of law, and summary judgment is appropriate. Jarrell v. Samsonite Corp., 12 N.C. App. 673, 184 S.E. 2d 376 (1971), cert. denied 280 N.C. 180, 185 S.E. 2d 704 (1972). Plaintiff points to the second clause of G.S. 1-52(9) — “the cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake” — and argues that defendant has failed to “set out facts which the plaintiff knew or should have known [presumably at the time of the conveyance on 30 July 1974] to put her on notice of fraud.” This burden is not upon defendant, however. In its affidavit in support of its motion for summary judgment, defendant, by its president, testified that the single transaction between plaintiff and defendant took place on 30 July 1974, and that more than three years have passed since that transaction. This is a sufficient forecast of evidence to entitle defendant to summary judgment. Id. Once defendant made this showing, the burden shifted to plaintiff to forecast evidence which would show that defendant was not entitled to judgment as a matter of law. Best v. Perry, 41 N.C. App. 107, 254 S.E. 2d 281 (1979). In this case, plaintiff would have needed to show that she first discovered facts about the transaction which would constitute fraud within the three years prior to the filing of this action. Since she did not respond to defendant’s motion at all, she clearly has not done so. “[OJnce the defending party forecasts evidence . . . which tends to establish his right to judgment as a matter of law, the claimant must present a forecast of the evidence . . . which will tend to support his claim for relief. ... If the claimant does not respond at that time . . . , summary judgment should be entered in favor of the defending party.” Id. at 110, 254 S.E. 2d 284. Summary judgment for defendant Morgan-Schultheiss was proper. The same reasoning applies to the summary judgment granted to defendants Bank and Morgan, and to that granted to defendant Mclnnis on plaintiff’s first cause of action. Plaintiff’s third cause of action, against defendant Mclnnis alone, fails to state a claim upon which relief can be granted. Therefore, any issue of fact which exists would not be material, see Lowe v. Murchison, 44 N.C. App. 488, 261 S.E. 2d 255 (1980), and summary *324 judgment for defendant on this cause of action also was appropriate. Summary judgment for all defendants was proper. The orders of the trial court are Affirmed. Judges Hedrick and Erwin concur.