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Dixon v. Hill11/1/2005
ablishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then the non-moving party must "produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial." Id. In opposing a motion for summary judgment, the non-moving party "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." N.C.R. Civ. P. 56(e).
The trial court concluded that the Church was jointly and severally liable to plaintiffs for unfair and deceptive trade practices, fraud/constructive fraud, breach of contract, conversion, negligent misrepresentation, restitution/unjust enrichment, and punitive damages. The court then found that plaintiffs were entitled to compensatory damages in the amount of $127,992.00, which it trebled based on its conclusion that defendant had committed an unfair and deceptive trade practice.
The Church first contends that plaintiffs failed to present sufficient evidence to support summary judgment in their favor, arguing that Ms. Dixon's affidavit is not competent evidence because it was based upon information and belief. See CurrituckAssocs. Residential P'ship v. Hollowell, __ N.C. App. __, __, 612 S.E.2d 386, 389 (2005). That affidavit actually stated that Ms. Dixon "has personal knowledge of the matters stated herein, except where stated upon information and belief." When, however, the facts were actually set out in the affidavit, none of them were qualified as being "upon information and belief." Accordingly, there is no indication in the record that Ms. Dixon lacked personal knowledge with respect to the facts set forth in her affidavit.
Second, although the Church acknowledges that it did not submit any evidence in opposition to the Dixon affidavit, it contends that issues of fact still exist based on the Church's and Barber's denial of the allegations in plaintiffs' complaint and based on the denials contained in their response to plaintiffs' First Request for Admissions. The Church's answer was not verified and, therefore, the denials contained in that answer are not sufficient to defeat summary judgment. Excel Staffing Serv., Inc. v. HP Reidsville, Inc., __ N.C. App. __, __, 616 S.E.2d 349, 354 (2005) (holding that the trial court properly granted the plaintiff summary judgment when the defendant relied solely on the denial in its unverified answer).
Likewise, the Church's denials in response to plaintiffs' First Request for Admissions do not give rise to issues of fact for purposes of a motion for summary judgment. Those responses were not verified and, therefore, cannot be deemed to be an affidavit. Nor do they fall within the category of "depositions, answers to interrogatories, and admissions on file" specified in Rule 56 asmaterial that may be considered. The Church was obligated to present a forecast of evidence _ not mere allegations _ demonstrating the existence of genuine issues of material fact. See Paramount Aviation Corp. v. Agusta, 178 F.3d 132, 149 (3d Cir.) ("Although [plaintiff] denied knowledge or information about the helicopter in its responses to requests for admission, its general denial is insufficient to create a genuine issue of fact."), cert. denied, 528 U.S. 878, 145 L.Ed. 2d 158, 120 S.Ct. 188 (1999); Am. Communications Telecomms., Inc. v. Commerce North Bank, 691 S.W.2d 44, 48 (Tex. App. 1985) ("When an answering party denies or refuses to make an admission of fact [in response to a request for admissions], su
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