Jerry Dan PIPKIN et ux., Marjorie L. Pipkin, Edward Lassiter et ux., Faydeen Lassiter, Randolph Lassiter et ux. and Shirley Lassiter
v.
Elsie LASSITER et vir., Paul Lassiter.
No. 778SC609.
Court of Appeals of North Carolina.
June 20, 1978.*106 Duke & Brown by John E. Duke, Goldsboro, for petitioners-appellees.
Barnes, Braswell & Haithcock by Michael A. Ellis, Goldsboro, for respondents-appellants.
MITCHELL, Judge.
Although this action is designated a special proceeding by the parties and was assigned a number in the trial court indicating it to be such, we perceive it to be a civil action in the nature of a declaratory judgment proceeding. The plaintiffs designate themselves as "petitioners" and seek a declaration of their rights in a right-of-way and injunctive relief pursuant to the terms of a judgment in a prior special proceeding (28SP22) in Wayne County. The defendants, designated as "respondents" at most pertinent points in the pleadings, assign as error the entry of judgment on the pleadings by the trial court. They contend that their answer, designated a "response" by them, raises material issues of fact and that the trial court erred in granting judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c). We agree.
A motion for judgment on the pleadings is properly allowed when all material allegations of fact are admitted in the pleadings and only questions of law remain. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974). When a party moves for judgment on the pleadings, he admits the truth of all well-pleaded facts in the pleading of the opposing party and the untruth of his own allegations insofar as they are controverted by the pleadings of the opposing party. Gammon v. Clark, 25 N.C.App. 670, 214 S.E.2d 250 (1975).
In the present case the defendants admit the citizenship of the parties and nothing else. Clearly the facts are not established by such pleadings.
The fact that the answer or "response" also contains a "third defense and counterclaim" which makes reference to "a proposed 20-foot right-of-way" which has been laid off somewhere by commissioners and also sets forth unrelated matters, in no way tends to make the facts so well settled as to permit judgment on the pleadings. Judgment on the pleadings pursuant to Rule 12(c) is not favored by the law, and the pleadings must be liberally construed in the light most favorable to the defendants as the nonmoving parties. Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974). The mere fact that a party's case may be weak and the party unlikely to prevail on the merits will not make judgment on the pleadings appropriate. Huss v. Huss, 31 N.C.App. 463, 230 S.E.2d 159 (1976).
*107 The pleadings of the parties, in their current state, raise material issues of fact. Rule 12(c) does not authorize a trial court's entry of judgment on such pleadings. Cline v. Seagle, 27 N.C.App. 200, 218 S.E.2d 480 (1975). We find that the trial court erred in entering this judgment.
For the reasons previously set forth, the judgment of the trial court must be and is
Reversed and the cause remanded.
BROCK, C. J., and HEDRICK, J., concur.