Gelder & Associates, Inc. v. Huggins

HILL, Judge. The party moving for summary judgment, defendant in this case, has the burden of “ ‘clearly establishing the lack of any triable issue of fact by the record properly before the court.’ ” Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 470, 251 S.E. 2d 419 (1979). Movant may carry his burden ‘by proving that an essential element of the opposing party’s claim is nonexistent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing.’ (Citation omitted.) Id. at p. 470. Two things are apparent after reading the authority cited above. First, the court will not decide an issue of fact when a motion for summary judgment is made. Second, before an opponent can be required to give a forecast of evidence, the movant must give a forecast which, when considered alone, is sufficient to compel a verdict or finding in his favor on the claim or defense. Id. at p. 470. By applying the principles stated above, we now determine the propriety of the trial court’s grant of summary judgment in defendant’s favor. Two inquiries must be made. Did C. J. Huggins, as an individual, owe plaintiff the amount due on the paving contract? This is the question of fact that would have to be determined in the affirmative in order for plaintiff to prevail on his cause of action. In her motion for summary judgment, defendant asserts that the complaint shows on its face that the obligation, if any, was that of Huggins Realty Company and not that of C. J. Huggins. In a supporting document, defendant shows that Huggins Real Estate Service Company is an active North Carolina corporation in good standing. This is not the kind of forecast which is sufficient to show there is no issue of fact, thus compelling a finding in [339] defendant’s favor, or compel plaintiff-opponent to make a forecast. The complaint clearly states that Huggins owed the debt, even if the attached invoice is addressed to Huggins Realty. Assuming arguendo that defendant-movants’ forecast was sufficient, we believe that plaintiff successfully opposed summary judgment in defendant’s favor with his forecast of evidence. Plaintiff established by affidavit that its president dealt at all times with C. J. Huggins individually and that at no time was the president informed there was any corporation whatsoever. By further affidavit, plaintiff showed that despite the fact that its invoice was addressed to Huggins Realty Company, no corporation by that name existed at any relevant time. Regarding plaintiff-opponent’s papers indulgently, as we must, we find that whether C. J. Huggins contracted individually with plaintiff is a triable issue of fact. Does the complaint show on its face that plaintiffs claim for relief is barred by G.S. 1-52(1) or any other applicable statute of limitations? The alleged claim against C. J. Huggins arose on 30 June 1976, some time before his death, and was viable at his death. See G.S. 1-52(1). G.S. 1-22 provides in pertinent part that: If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced against his personal representative or collector after the expiration of that time; provided, the action is brought or notice of the claim upon which the action is based is presented to the personal representative or collector within the time specified for the presentation of claims in G.S. 28A-19-3 . . . G.S. 28A-19-3 provides: (a) All claims . . . founded on contract, . . . which are not presented to the personal representative or collector pursuant to G.S. 28A-19-1 by the date specified in the general notice to creditors as provided for in G.S. 28A-14-1 are forever barred against the estate . . .. [340] * * * (c) No claim shall be barred by the statute of limitations which was not barred thereby at the time of the decedent’s death, if the claim is presented within the period provided by subsection (a) hereof. G.S. 28A-19-16 provides: If a claim is presented to and rejected by the personal representative or collector, . . . the claimant must, within three months, after due notice in writing of such rejection, or after some part of the claim becomes due, commence an action for the recovery thereof, or be forever barred from maintaining an action thereon. Plaintiffs claim clearly falls within the provisions of the foregoing statutes. It was not barred at the date of death of C. J. Huggins. Notice was given within six months after qualification of the executrix. The suit was begun within three months after notice of rejection in writing. The motion granting summary judgment is reversed, and this cause is remanded to the superior court for proceedings consistent with this opinion. Reversed and remanded. Chief Judge MORRIS and Judge MARTIN (Harry C.) concur.