"In the absence of implied contract, no recovery will lie [in restitution]." Bauman v. Smith, 41 N.C. App. 223, 231 rev'd on other grounds, 298 N.C. 778 (1979). Here, plaintiff only has pleaded a breach of contract claim.
Contracts 27.1 — contract alleged and denied — summary judgment inappropriate In an action to recover for construction work on defendants' home renovation project, the trial court erred in entering summary judgment for defendants where defendants' affidavit submitted in support of their summary judgment motion did not challenge or alter the fact that the complaint alleged, and the answer denied, the existence of a contract between the parties, and defendants therefore did not meet their burden of proving that there was no genuine issue of fact. ON appeal by plaintiff from the decision of the North Carolina Court of Appeals, reported in 41 N.C. App. 223, 254 S.E.2d 627 (1979), which affirmed the judgment of Brown, J., entered at 15 May 1978 Civil Session of EDGECOMBE Superior Court granting defendants' motion for summary judgment. Frank M. Wooten, Jr., by Thomas B. Carpenter, Jr., for plaintiff appellant.
However, “more than a general statement” is required. Baumann v. Smith, 41 N.C.App. 223, 229, 254 S.E.2d 627, 631 (1979). “A mere assertion of a grievance is insufficient to state a claim upon which relief can be granted. Some degree of factual particularity is required.”
The burden is on the moving party to establish the lack of a triable issue of fact, and the motion must be considered in the light most favorable to the party opposing summary judgment. Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627, rev'd on other grounds, 298 N.C. 778, 260 S.E.2d 626 (1979). We conclude that defendant has not met this burden.
The judgment sought shall be rendered forthwith 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 a judgment as a matter of law. Upon a motion for summary judgment, the burden is on the moving party to establish the lack of a triable issue of fact. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627 (1979). The motion must be considered in a light most favorable to the party opposing summary judgment, Baumann v. Smith, supra; Peterson v. Winn-Dixie of Raleigh, Inc., 14 N.C. App. 29, 187 S.E.2d 487 (1972), and the papers of the moving party will be carefully scrutinized.