Elmore's Feed & Seed, Inc. v. Patrick

ARNOLD, Judge. Before we decide if the summary judgment motions were properly granted here, we first answer the defendant’s contention that summary judgment cannot be granted while his motion to compel discovery was pending. G.S. 1A-1, Rule 56 does not address this question. The general rule for this situation was stated in Conover v. Newton, 297 N.C. 506, 256 S.E. 2d 216 (1979). [718] Ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so. 297 N.C. at 512, 256 S.E. 2d at 220. Although the defendant’s motion to compel discovery was pending when summary judgment was decided against him, it was not error for the trial judge to rule on the Rule 56 motions. First, the defendant was dilatory in discovery. Although the plaintiff answered his interrogatories on 7 October 1981, the plaintiff did not move to compel discovery until 12 December 1981. His motion asked for answers to only 12 of the 100 interrogatory questions. Second, the defendant has not shown that further discovery would lead to the production of relevant evidence. He knew of the plaintiffs prima facie case since the 13 August 1981 deposition of Bob Elmore, but failed to allege that he was unable to obtain essential facts so as to justify more discovery as provided in G.S. 1A-1, Rule 56(f). In addition, the defendant’s counsel admitted at the summary judgment hearing that “everything is present, Your Honor, which would require this Court to find that there is in fact a genuine dispute of varied material facts so that the summary judgment motion should not apply.” This is an admission that no further discovery was needed. Although we find that it was proper for the trial judge to reach the summary judgment question, it was error for him to grant the motions of the plaintiff and third-party defendant. There was a “genuine issue of material fact” on whether the plaintiff was negligent in not informing the defendant of the change in the feed. Summary judgment under G.S. 1A-1, Rule 56(c) is proper when there is “no genuine issue as to any material fact....” It is a “drastic remedy... [that] must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue.” Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 [719] S.E. 2d 823, 830 (1971). This remedy “does not authorize the court to decide an issue of fact. It authorizes the court to determine whether a genuine issue of fact exists.” Vassey v. Burch, 301 N.C. 68, 72, 269 S.E. 2d 137, 140 (1980) (emphasis in original). Summary judgment should be denied “[i]f different material conclusions can be drawn from the evidence.” Spector Credit Union v. Smith, 45 N.C. App. 432, 437, 263 S.E. 2d 319, 322 (1980). In Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E. 2d 897, reh’g denied, 281 N.C. 516, --- S.E. 2d --- (1972), the court defined two terms that are determinative on a summary judgment question. An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated “genuine” if it may be maintained by substantial evidence. 280 N.C. at 518, 186 S.E. 2d at 901 (emphasis added). In addition to no issue of fact being present, to grant summary judgment a court must find “that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law.” 2 McIntosh, N.C. Practice and Procedure, § 1660.5 (2d ed., Phillips Supp. 1970). See also, W. Shuford, N.C. Civil Practice and Procedure § 56-7 (2d ed. 1981). It is an accepted tenet of our jurisprudence that summary judgment is rarely proper in negligence cases like the defendant’s counterclaim in this case. “Even where there is no dispute as to the essential facts, where reasonable people could differ with respect to whether a party acted with reasonable care, it ordinarily remains the province of the jury to apply the reasonable person standard.” Moore v. Crumpton, 306 N.C. 618, 624, 295 S.E. 2d 436, 441 (1982). Our examination of the facts here leads us to conclude that summary judgment was improper. There is evidence in this case to link the defendant’s damage to a change in the feed mixture. The defendant’s herd began to develop sickness in late April or early May, 1977. This was about the same time that cottonseed was added to the feed mixture. The defendant stated that his [720] cows improved after they went off of the plaintiffs feed. Other dairy farmers who used the same feed had similar problems. Dr. Davenport made a “calculated guess” that the change in feed ingredients caused the illness. The plaintiff uses Davenport’s statement that illness from a feed change would have occurred “no later than one week after the cows first ate that feed” to argue that any feed change was not the problem. We disagree. H. B. Turner, the production manager for Ralston Purina’s Charlotte plant, stated in an affidavit that cottonseed was included in all Milk Special 20 “B” feed produced at that plant from 26 April through June, 1977. The plaintiff got feed from Purina’s Charlotte plant and delivered it to the defendant during the April-June, 1977 period. The defendant stated that the problems with his herd began in late April or early May, 1977. This is a sufficient showing of causation to survive a summary judgment motion. Because we find that there is a genuine issue of material fact in this case, we reverse the entry of summary judgment for the plaintiff and the third-party defendant and remand for a trial. Reversed. Chief Judge VAUGHN and Judge Hedrick concur.