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205 N.C. App. 722

697 S.E.2d 406

Hodges v. Moore

Court of Appeals of North Carolina · decided 2010-07-20

Cited by 4 later decisions — most recently June 2019

4 state decisions

Key passage — most relied on by later courts

“and summary judgment presupposes that there are no triable issues of material fact.”

quoted by 2 later decisions, including 266 N.C. App. 84 - Sfreddo v. Hicks, 241 N.C. App. 477 - N.C. State Bar v. Scott

“A party moving for summary judgment may prevail if it meets the burden (1) of proving an essential element of the opposing party's claim is nonexistent, or (2) of showing through discovery that the opposing party cannot produce evidence to support an essential element of his or her claim. Generally this means that on undisputed aspects of the opposing evidential forecast, where there is no genuine issue of fact, the moving party is entitled to judgment as a matter of law. If the moving party meets this burden, the non-moving party must in turn either show that a genuine issue of material fact exists for trial or must provide an excuse for not doing so. If the moving party fails to meet his burden, summary judgment is improper regardless of whether the opponent responds . The goal of this procedural device is to allow penetration of an unfounded claim or defense before trial. If the moving party satisfies its burden of proof, then the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine issue for trial. The non-moving party may not rest upon the mere allegations of his pleadings. Subsection (e) of Rule 56 does not shift the burden of proof at the hearing on motion for summary judgment. The moving party still has the burden of proving that no genuine issue of material fact exists in the case. However, when the moving party by affidavit or otherwise presents materials in support of his motion, it becomes incumbent upon the opposing pa”

quoted by 1 later decision, including 266 N.C. App. 84 - Sfreddo v. Hicks

Relies on 26 N.C. App. 138 - Hyde Insurance Agency, Inc. v. Dixie Leasing Corp. · Crow v. Citicorp Acceptance Co., Inc. · 161 N.C. App. 20 - Broughton v. McClatchy Newspapers, Inc.

Good law ✅— No negative treatment on recordhow we know

Decided 2010-07-20

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STEELMAN, Judge.

¶1 The trial court did not err by refusing to enter findings of fact pursuant to Rule 52 of the Rules of Civil Procedure in an order granting defendant’s motion for summary judgment.

¶2*723 I. Factual and Procedural Background

¶3 On 18 March 2009, John Hodges (plaintiff) filed this action against David Moore (defendant). The complaint alleged that plaintiff contracted with Street Styles, Inc. to customize his Nissan Sentra motor vehicle. Plaintiff paid Street Styles, Inc. monies for the work, which was not performed. Defendant’s son was convicted in criminal court for failing to complete the work after being paid, and was ordered to pay restitution. Defendant’s son paid only $400.00 of the restitution.

¶4 This action seeks recovery of monetary damages from defendant, who was a shareholder in the corporation. Plaintiff’s complaint seeks to “pierce the corporate veil” in order to recover from defendant individually. On 15 October 2009, Judge DeRamus granted defendant’s motion for summary judgment and dismissed plaintiff’s action. Plaintiff appeals.

¶5 II. Refusal of Trial Court to Enter Findings of Fact

¶6 In his only argument on appeal, plaintiff contends that the trial court erred in failing to make findings of fact and conclusions of law after a request by plaintiff’s counsel that they be included in the order. We disagree.

¶7 Judge DeRamus’s order stated that the trial court “finds and concludes that there is no genuine issue of material fact and Defendant is entitled to judgment as a matter of law.” We hold this order to be sufficient and that the provisions of Rule 52 of the Rules of Civil Procedure do not apply to orders granting summary judgment pursuant to Rule 56.

¶8 “Rule 52(a)(2) does not apply to the decision on a summary judgment motion because, if findings of fact are necessary to resolve an issue, summary judgment is improper.” Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 33-34, 588 S.E.2d 20, 30 (2003) (quoting Mosley v. National Finance Co., 36 N.C. App. 109, 111, 243 S.E.2d 145, 147 (1978), overruled on other grounds by Crow v. Citicorp Acceptance Co., 319 N.C. 274, 279-80, 354 S.E.2d 459, 464 (1987)). “There is no necessity for findings of fact where facts are not at issue, and summary judgment presupposes that there are no triable issues of material fact.” Insurance Agency v. Leasing Corp., 26 N.C. App. 138, 142, 215 S.E.2d 162, 165 (1975).

¶9*724 The case cited by plaintiff, Agbemavor v. Keteku, 177 N.C. App. 546, 629 S.E.2d 337 (2006), specifically acknowledged the above-cited holding in Broughton, and held that it was not applicable because the trial court’s rulings appealed from were made pursuant to Rules 12(b)(2), (b)(3), and (b)(5), and not pursuant to Rule 56. Id. at 550, 629 S.E.2d at 241.

¶10 Plaintiff does not argue the' merits of the trial court’s ruling.

¶11 AFFIRMED.

Judges STEPHENS and HUNTER, JR. concur.
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