Justus v. Deutsch , 62 N.C. App. 711 ( 1983 )

303 S.E.2d 571 (1983)

Larry Thomas JUSTUS
v.
Robert J. DEUTSCH, Attorney-in-fact for Nancy Revis Justus Mason, Nancy Revis Justus Mason, and Randolph C. Romeo, Trustee.

No. 8229SC560.

Court of Appeals of North Carolina.

June 21, 1983.

James C. Coleman, Hendersonville, for plaintiff-appellant.

Prince, Youngblood, Massagee & Creekman by Boyd B. Massagee, Jr., Hendersonville, for defendants-appellees.

ARNOLD, Judge.

Because we find that there are no genuine issues of fact to be resolved in this case, we affirm entry of summary judgment for the defendants and denial of a like motion by the plaintiff. To understand our holding, a review of when this remedy should be used is helpful.

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 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 (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).

The defendants argue that the plaintiff was in default because he did not pay the real property taxes that were due on the encumbered property. They also contend that all requests for release deeds from the plaintiff were met before the due date of the note.

The plaintiff contends that the defendants incorrectly declared the note payable before its due date. He argues, by implication, that if he had been given release deeds for the encumbered property, he could have met his obligation under the settlement agreement.

The record before us supports our decision. First, all release deeds that the plaintiff requested were executed by the defendants prior to the due date of the note. In his answer to the defendants' interrogatories on 29 December 1980, the plaintiff attached "copies of all release deeds" (emphasis added). Although in another answer the plaintiff stated that "based on information and belief" there were other release deeds offered to the defendants, that mere allegation is not sufficient to overcome the entry of summary judgment.

Second, the plaintiff was in default under the deed of trust for not paying the 1979 real property taxes. G.S. 105-360 provides that real property taxes are due in September of the fiscal year in which they were levied. Although the deed of trust was not printed in the record on appeal, we accept the admission on oral argument by both counsel that failure to pay real property taxes is default that allows the defendant Mason to institute foreclosure proceedings.

Third, the terms of the agreement require the defendant Mason to release the encumbered property "at the time of sale." Delivery of offer to purchase forms is not sufficient to meet this requirement.

In addition, five of the six offers to purchase in the record required seller financing by the plaintiff. This would be a breach of the settlement agreement, which provides that any net proceeds from the sale of encumbered property must first be used to pay the debt to the Bank of North Carolina and then applied to the $90,000 debt to Mason. The net proceeds would not be available in a sale in which the plaintiff was financing part of the purchase price.

Finally, the plaintiff argues that because the agreement was executed under seal that the defendants' counterclaim cannot be allowed on a failure of consideration theory. It is true that a contract under seal in North Carolina imports consideration to support that contract. See, e.g., Mobil Oil Corp. v. Wolfe, 297 N.C. 36, 252 S.E.2d 809 (1979). But the defendants were properly given summary judgment because the plaintiff's default was a breach of the agreement which entitled the defendants to a grant of their motion.

For these reasons, we affirm the trial judge's grant of the defendants' summary judgment motion and denial of the plaintiff's summary judgment motion.

Affirmed.

VAUGHN, C.J., and HEDRICK, J., concur.