Baumann v. Smith

8 Citing cases

  1. Allied Spectrum, LLC v. German Auto Ctr., Inc.

    793 S.E.2d 271 (N.C. Ct. App. 2016)

    When considering a motion for summary judgment, the trial court views the evidence in a light most favorable to the nonmoving party and resolves all inferences against the moving party. See In re Will of Jones , 362 N.C. at 573, 669 S.E.2d at 576 ; Baumann v. Smith , 298 N.C. 778, 782, 260 S.E.2d 626, 628 (1979). "Summary judgment is a somewhat 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."

  2. Kaimowitz v. Duke Law Journal

    315 S.E.2d 82 (N.C. Ct. App. 1984)   Cited 2 times
    In Kaimowitz, the plaintiff and a representative of the defendant submitted conflicting affidavits concerning the extent, if any, to which the defendant verbally assured the plaintiff, who was submitting an article for publication by defendant, that he could list the pending article on his resume as a work to be published and that the article was of publishable quality.

    Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d 375 (1978). We find the statements of our Supreme Court in Baumann v. Smith, 298 N.C. 778, 260 S.E.2d 626 (1979) dispositive of the case before us: The . . . affidavit [submitted by the defendant in support of his motion for summary judgment] did not challenge or alter the fact that the complaint alleged, and the answer denied, the existence of a contract between the parties.

  3. SAS Inst., Inc. v. World Programming Ltd.

    NO. 5:10-CV-25-FL (E.D.N.C. Sep. 8, 2015)   Cited 1 times

    "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.

  4. Jordan v. Jones

    314 N.C. 106 (N.C. 1985)   Cited 9 times
    Permitting plaintiff to bring a tort action against the Department of Transportation

    See Pittman v. Frost, 261 N.C. 349, 134 S.E.2d 687 (1964); 9 Strong's North Carolina Index 3rd 29 (1977). Summary judgment is proper when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. Baumann v. Smith, 298 N.C. 778, 260 S.E.2d 626 (1979). Although summary judgment is a useful tool in expediting the trial of cases and disposing of unfounded claims it is a drastic measure and should be used with caution, especially in a negligence case.

  5. Lavelle v. Guilford Cty. Area Ment. Ill. Auth

    115 N.C. App. 75 (N.C. Ct. App. 1994)   Cited 1 times

    The purpose of summary judgment is to eliminate formal trials where only questions of law are involved. Baumann v. Smith, 298 N.C. 778, 260 S.E.2d 626 (1979). In the instant case, plaintiff has already received the relief which she requested.

  6. Dealers Specialties v. Housing Services

    54 N.C. App. 46 (N.C. Ct. App. 1981)   Cited 1 times

    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.

  7. Brooks v. Farms Center, Inc.

    269 S.E.2d 704 (N.C. Ct. App. 1980)   Cited 2 times

    The party moving for summary judgment has the burden of establishing the lack of any triable issue of fact; his pleadings and papers must be carefully scrutinized and all inferences are to be resolved against him. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). See also Baumann v. Smith, 298 N.C. 778, 260 S.E.2d 626 (1979). Where, as here, the party with the burden of proof moves for summary judgment, a greater burden must be met. Summary judgment may be granted in favor of a party with the burden of proof, on the basis of his own affidavits (1) when there are only latent doubts as to the affiant's credibility; (2) where the opposing party has failed to introduce any materials in his favor, failed to point to specific areas of impeachment and contradiction, and failed to use G.S. 1A-1, Rule 56(f); and (3) when summary judgment is otherwise appropriate.

  8. Credit Union v. Smith

    45 N.C. App. 432 (N.C. Ct. App. 1980)   Cited 18 times
    Discussing purpose of changes to UCC, including addition of provision at issue in this case

    Summary judgment is appropriate only where the movant has shown that no material issue of fact exists and that he is entitled to judgment as a matter of law. Baumann v. Smith, 298 N.C. 778, 260 S.E.2d 626 (1979). If different material conclusions can be drawn from the evidence, summary judgment should be denied. Durham v. Vine, 40 N.C. App. 564, 253 S.E.2d 316 (1979).