Two Things To Avoid When Opposing A Motion For Summary Judgment

There aren't any great business law proclamations in Allran v. Branch Banking & Trust Corp., 2013 NCBC 41, decided late last week, but there a couple of procedural points that might help you avoid having summary judgment entered against your client.

Be Careful Which Defendants You Decide To Dismiss, And How You Dismiss Them

Judge Murphy granted summary judgment on Plaintiff's unfair and deceptive practices act claim against Defendant BB&T. The ruling was entered pretty much because Plaintiff submarined his own case in two ways. 

First, he dismissed his claims with prejudice against BB&T's employee, Corbett.  Plaintiff's claim against BB&T rested on his allegation that Corbett had forged his initials on his financial statement and loan application leading to the defaulted loan at issue.

Be aware that a dismissal with prejudice is equivalent to a disposition on the merits, and it has res judicata effect.  Thus, because "[a] judgment on the merits in favor of the employee precludes any action against the employer where . . . the employer's liability is purely derivative."  Op. 38 (quoting Wrenn v. Maria Parham Hosp., 135 N.C. App. 672, 681, 522 S.E.2d 789, 794 (1999), the dismissal of Corbett's employer, BB&T, was appropriate.

Be careful of which Defendants you dismiss from your case, and try to avoid dismissing them with prejudice.

Don't Try To Contradict Your Own Client's Deposition Testimony

The second way in which the Plaintiff did in his case was by his own deposition testimony, in which he admitted that he had placed his initials on the documents which he had said carried his forged initials.  He attempted, after discovery closed, to avoid summary judgment by presenting affidavits designed to contradict that testimony.

Judge Murphy rejected those affidavits, holding:

‘[A] non-moving party cannot create an issue of fact to defeat summary judgment simply by filing an affidavit contradicting his prior sworn testimony[.]’   Having
acknowledged in his deposition that the initials on the Retail Loan Application and
Personal Financial Application were his, Plaintiff should not now be allowed to offer
affidavits that call his testimony into question.

Op. 35 (quoting Carter v. W. Am. Ins. Co., 190 N.C. App. 532, 539, 661 S.E.2d 264, 270 (2008).

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