Harris v. Harris , 93 N.C. App. 67 ( 1989 )

WELLS, Judge.

Plaintiff assigns error to the trial court’s grant of summary judgment in favor of defendant. Plaintiff argues that there were “genuine issues of material fact . . . regarding the interpretation of the Property Settlement and Support Agreement,” making a grant of summary judgment to defendant improper.

Plaintiff also argues that summary judgment based on a defense of accord and satisfaction is improper because plaintiff’s actions indicate she did not accept defendant’s $285,000 payment as full payment of the debt and that therefore accord and satisfaction cannot be used as a defense. Summary judgment is appropriate where the pleadings, affidavits and other evidentiary materials before the court disclose that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56 of the North Carolina Rules of Civil Procedure (1983); Lowe v. Bradford, 305 N.C. 366, 289 S.E. 2d 363 (1982). “A defending party is entitled to summary judgment if he can show that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Little v. National Service Industries, Inc., 79 N.C. App. 688, 340 S.E. 2d 510 (1986). When a moving party establishes that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law, “. . . the burden is then on the opposing party to show that a genuine issue of material fact exists.” White v. Hunsinger, 88 N.C. App. 382, 363 S.E. 2d 203 (1988). “If the opponent fails to forecast such evidence, then the trial court’s entry of summary judgment is proper.” Id. at 383, 363 S.E. 2d at 204.

Defendant asserts in his answer and affidavit that the provisions of the consent order of 11 February 1986 concerning the division of the IRS refund bars plaintiff’s suit. The consent order and the 24 December 1986 settlement agreement, when construed together, are unambiguous and give effect to the consent order thereby showing conclusively that defendant was entitled to the $15,000 credit. Defendant’s forecast of evidence shows that the plaintiff cannot prove the existence of an essential element of her case; namely, that she is entitled to the $15,000 at issue. The burden then shifts to the plaintiff to show that a genuine issue of material fact exists. Plaintiff has failed to do this. The trial court’s entry of summary judgment in favor of defendant was proper. There is no error.

As a result of our decision above, it is unnecessary to reach defendant’s argument concerning accord and satisfaction.

Plaintiff’s remaining assignments of error deal with the order of 17 December 1987, awarding attorney’s fees to defendant’s attorneys pursuant to N.C. Gen. Stat. § 6-21.5 and N.C. Gen. Stat. § 1A-1, Rule 11 of the North Carolina Rules of Civil Procedure. Plaintiff argues that the evidence in the record does not support the trial court’s findings of fact, that these findings do not support the conclusions of law, i.e., that plaintiff’s complaint violated Rule 11 and G.S. § 6-21.5, or the award of attorney’s fees. Plaintiff contends the trial court erred in its award of attorney’s fees because her claim was not frivolous, was filed in good faith and raised a justiciable issue; therefore, it did not violate G.S. § 6-21.5 and Rule 11. We agree.

G.S. § 6-21.5 states in part:

In any civil action or special proceeding the court, upon motion of the prevailing party, may award a reasonable attorney’s fee to the prevailing party if the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party in any pleading.

Rule 11 deals with the signing and verification of pleadings and states in part:

. . . The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law . . . and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion . . . shall impose upon the person who signed it, . . . an appropriate sanction, which may include an order to pay to the other party . . . the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.

G.S. § 1A-1, Rule 11 of the North Carolina Rules of Civil Procedure (1988).

In construing G.S. § 6-21.5 this Court has stated, “The only basis for the award of attorney’s fees under Section 6-21.5 is the complete absence of a justiciable issue.” Bryant v. Short, 84 N.C. App. 285, 352 S.E. 2d 245, disc. rev. denied, 319 N.C. 458, 356 S.E. 2d 2 (1987). “ ‘Complete absence of a justiciable issue’ suggests that it must conclusively appear that such issues are absent even giving the losing party’s pleadings the indulgent treatment which they receive on motions for summary judgment or to dismiss.” Sprouse v. North River Ins. Co., 81 N.C. App. 311, 344 S.E. 2d 555, disc. rev. denied, 318 N.C. 284, 348 S.E. 2d 344 (1986).

In the present case it is clear that plaintiff’s complaint contained allegations which raised the existence of a justiciable issue as to her entitlement to the $15,000 she sought from defendant. Therefore, plaintiff’s complaint was not frivolous, was filed in good faith, and did not violate either G.S. § 6-21.5 or Rule 11.

The entry of summary judgment in favor of defendant by the trial court is affirmed. The order of 17 December 1987 awarding attorney’s fees to defendant is vacated.

Affirmed in part and vacated in part.

Judges BECTON and JOHNSON concur.