Smith v. Currie

253 S.E.2d 645 (1979)

40 N.C. App. 739

F. Ray SMITH, III and wife, Anne S. Smith v. Donald Patrick CURRIE.

No. 7821SC555.

Court of Appeals of North Carolina.

April 17, 1979.

*646 Alexander & Hinshaw by Robert D. Kinshaw, Winston-Salem, for plaintiffs-appellants.

Hall & Liner by Roy G. Hall, Jr., Winston-Salem, for defendant-appellee.

HEDRICK, Judge.

The plaintiffs assign as error the court's entry of summary judgment in favor of the defendant. Under Rule 56(c), summary judgment shall be entered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law." G.S. § 1A-1, Rule 56(c); Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). The burden of establishing the lack of any triable issue of fact is on the party moving for summary judgment, and the movant's papers are carefully scrutinized while those of the opposing party are regarded with indulgence. North Carolina *647 National Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976). When the party moving for summary judgment supports his motion as provided in this rule, the party opposing the motion

may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

G.S. § 1A-1, Rule 56(e); Kidd v. Early, supra; Cameron-Brown Capital Corp. v. Spencer, 31 N.C.App. 499, 229 S.E.2d 711 (1976).

In North Carolina a subject to financing clause, such as the one contained in the "Offer to Purchase Agreement" in the present case, includes the implied promise that the purchaser will act in good faith and made a reasonable effort to secure the financing. Mezzanotte v. Freeland, 20 N.C.App. 11, 200 S.E.2d 410 (1973), cert. denied, 284 N.C. 616, 201 S.E.2d 689 (1974). Thus, the issue for resolution on the motion for summary judgment is whether the defendant, as movant, has met his burden of showing that he acted in good faith and made reasonable efforts in his unsuccessful attempt to obtain financing and consequently that there is no genuine issue as to any material fact and he is entitled to judgment as a matter of law.

We are of the opinion that the defendant has failed to meet his burden. The nature of the issue involved in the present case, whether the defendant acted in good faith and made reasonable efforts to obtain a loan, is such that summary judgment is ordinarily not a proper vehicle for its resolution. Generally, summary judgment is inappropriate "when issues such as motive, intent, and other subjective feelings and reactions are material," 6 Moore's Federal Practice ¶ 56.17 [41.-1], at 930 (1978), or when the evidence presented "is subject to conflicting interpretations, or reasonable men might differ as to its significance." 10 Wright & Miller, Federal Practice and Procedure: Civil § 2725, at 515 (1973). Whether a purchaser made reasonable efforts to obtain financing has been held to be a question that should be submitted to the trier of fact where "fair-minded men might differ as to the conclusion to be drawn" from the evidence submitted on a summary judgment motion. Betnar v. Rose, 259 Ark. 820, 829, 536 S.W.2d 719, 724 (1976). Whether the defendant in the present case made reasonable efforts in a good faith attempt to obtain financing is precisely the type of question that depends for its resolution on a consideration of the subjective intentions and motivation of the actor. Such an inquiry necessarily involves conflicting interpretations of the perceived events, and even where all the surrounding facts and circumstances are known, reasonable minds may still differ over their application to the legal principle involved. It is only in the most exceptional case that the movant would be entitled to summary judgment when the issue, as here, concerns the reasonableness of his actions. Thus, because of the nature of the issue in this case, summary judgment for the defendant was inappropriate.

Reversed and remanded.

VAUGHN and CARLTON, JJ., concur.