An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1232
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Filed: 15 July 2003


v .                             Granville County
                                No. OO CVS 1385

    Appeal by plaintiffs from judgment entered 25 March 2002 by Judge Evelyn W. Hill in Granville County Superior Court. Heard in the Court of Appeals 11 June 2003.

    Wallace W. Bradsher, Jr., for plaintiff-appellants.

    Bailey & Dixon, L.L.P., by Gary S. Parsons and Jennifer D. Maldonado, for defendant-appellees.

    MARTIN, Judge.

    Plaintiffs Virginia and Norman Streib appeal from the entry of summary judgment in favor of defendants Mr. and Mrs. Billy Hocutt. The materials before the trial court tended to show: On 18 December 1997, Billy Hocutt (“defendant”) was leading his mules, each weighing 1,200 to 1,400 pounds, from his pasture to the barn when one spooked, startled the other, and both mules broke away from him. Giving chase, he stopped and asked his wife to follow with the car. They found the mules approximately one quarter of a mile away from the pasture, walking on Highway 96. As defendant attempted to capture his mules, Virginia Streib (“plaintiff”) drove over a small rise north of the mules. One mule collided withplaintiff's car and was killed; plaintiff sustained back and neck fractures. Plaintiffs appeal.


    By three assignments of error, plaintiffs argue (1) summary judgment was improper because there were genuine issues of material fact existing; (2) counsel properly moved for a voluntary dismissal without prejudice before summary judgment was entered; (3) the summary judgment hearing was unfair, impartial and the judgment was prejudicial to the fair administration of justice. We reject their arguments.
    By their first assignment of error, plaintiffs contend there were sufficient genuine issues of material fact before the trial court to defeat defendant's motion for summary judgment. “The standard with respect to summary judgment is well-established.” Sullivan v. Mebane Packaging Group, Inc., ___ N.C. App. ___, ___, ___ S.E.2d. ___, ___ (COA02-762, 20 May 2003). Where “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,” summary judgment is proper. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). Construing “[t]he evidence and all reasonable inferences which may be drawn from it” in favor of the opposing party, the moving party bears the burden of showing that an essential element of the opposing party's claim is either non-existent or evidence is not available tosupport it. Meares v. Jernigan, 138 N.C. App. 318, 320, 530 S.E.2d 883, 885 (2000).
    Negligence requires evidence beyond allegations and mere speculation, Roumillat v. Simplistic Enterprises, 331 N.C. 57, 414 S.E.2d 339 (1992), and although summary judgment is rarely appropriate in negligence cases, it may be granted if there are no genuine issues of material fact and the plaintiff fails to show one of the elements of negligence. Lavelle v. Schultz, 120 N.C. App. 857, 859-60, 463 S.E.2d 567, 569 (1995), disc. review denied, 342 N.C. 656, 467 S.E.2d 715 (1996). The plaintiff can overcome a motion for summary judgment by establishing a prima facie case of negligence showing the defendant's failure to exercise proper care, this failure proximately caused plaintiff's injury, and the injury was foreseeable to a reasonable person. Id. Based on our review of the record, plaintiff has failed to show these elements.
    Plaintiffs allege defendant failed in his duty as the mules' owner and caretaker “to exercise ordinary care and the foresight of a prudent person in keeping them in restraint.” Gardner v. Black, 217 N.C. 573, 576, 9 S.E.2d 10, 11 (1940). In Gardner, the Court held that the defendant could not be found negligent since the plaintiff did not show that defendant continued to let his mules roam once aware of their escape. Id. at 577, 9 S.E.2d at 12. See also, Herndon v. Allen, 253 N.C. 271, 273-74, 116 S.E.2d 728, 730- 31 (1960) (defendant not negligent even when his ill mule escaped and search was not resumed for six hours); Shaw v. Joyce, 249 N.C. 415, 416, 106 S.E.2d 459, 460 (1959) (negligence when defendantknew mule escaped three times shortly before the collision); Kelly v. Willis, 238 N.C. 637, 640, 78 S.E.2d 711, 713 (1953) (negligence where defendant knew mule “wandered unattended, uncontrolled, and unrestrained” four times in the previous two weeks).
    Here, the evidence tended to show that defendant exercised proper care, pursuing his animals immediately after their escape, and he was not negligent in their restraint. Additionally, plaintiff offered no evidence as to the mules' escape being the proximate cause of her injury; in our review of the record and deposition testimony all we discover are plaintiff's allegations that defendants should be responsible because the mules were on “the highway where animals should not be.” Further, there was testimony indicating the mules' actions were not foreseeable, they regularly came when called and had never escaped before. Plaintiffs arguments consist only of speculation that defendant Billy Hocutt had somehow been negligent in the manner in which he led the mules to the barn and other allegations concerning his credibility. These arguments are insufficient to show the existence of a genuine issue of material fact. Plaintiffs offer no arguments concerning Mrs. Hocutt's negligence. Accordingly, we overrule this assignment of error.
    Plaintiffs next assign error to the trial court's refusal to allow them to submit to a voluntary dismissal without prejudice. Plaintiffs urge us to expand Wesley v. Bland, 92 N.C. App. 513, 374 S.E.2d 475 (1988), which upheld a plaintiff's oral request for voluntary dismissal immediately prior to the commencement of hisargument on the defendant's motion for summary judgment. The Wesley court carefully noted that the plaintiff had not presented any argument in defense of the motion. In the underlying case, the following exchange occurred after plaintiffs' counsel began his argument:
        THE COURT: Well, Counselor, you have to have evidence of negligence, not speculation . . . . If we could all come into court on speculation of negligence, we wouldn't have to prove negligence.

        MR. BRADSHER: I understand, Your Honor.
        THE COURT: And it seems very clear to the Court that your negligence in this case is based on the fact the mule was loose.

        MR. BRADSHER: No, Your Honor.

        THE COURT: Well, if you will wind up your argument, I will keep my mouth shut until you are finished. I see that I am making no progress, so just go ahead and finish your argument and we will just move right on with that.

        MR. BRADSHER: Your Honor, at this point the plaintiff will take a voluntary dismissal without prejudice.

        THE COURT: I don't think so, sir. We are here in the middle of a summary judgment hearing and we are going to finish the summary judgment hearing.

    Unlike Wesley, defendants attempt to take a voluntary dismissal came after plaintiff had argued in response to the motion and could be “deemed to have 'rested [their] case' for the purpose of summary judgment.” Wesley, 92 N.C. App. at 515, 374 S.E.2d at 477 (citation omitted). Plaintiffs argued in open court, the trial court questioned their evidence, and in response they sought to take a voluntary dismissal. Allowing plaintiffs to take avoluntary dismissal without prejudice after the trial court revealed the weakness of their argument makes “'a mockery of summary judgment proceedings,'” id. at 515, 374 S.E.2d at 476 (citation omitted), and defeats their role in conserving judicial resources by preventing litigation “where only questions of law remain and where an unmistakable weakness in a party's claim or defense exists.” Liberty Mutual Insurance Co. v. Pennington, 356 N.C. 571, 579, 573 S.E.2d 118, 123 (2002).
    Finally, plaintiffs maintain the trial court's hearing was prejudicial to the fair administration of justice. Plaintiffs urge us to apply the “abuse of discretion standard” from Blackmon v. Bumgardner, 135 N.C. App. 125, 519 S.E.2d 335 (1999). In Blackmon, this Court reviewed the denial of attorney's fees and explained that if the trial court's ruling is arbitrary or “'manifestly unsupported by reason,'” then there was an abuse of discretion and noted that “the trial court should consider all the circumstances of the case” when exercising its discretion. Id. at 130, 519 S.E.2d at 338 (citation omitted). Blackmon is inapplicable to the present case because the trial court determined, as a matter of law, that there were no genuine issues of material fact before granting summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2003). We have sustained its legal ruling. For the forgoing reasons, the judgment of the trial court is affirmed.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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