#### BELLMONT MURPHREY v. HENRY WINSLOW and JAMES H. WINSLOW

No. 533A84

(Filed 2 April 1985)

On appeal by plaintiff from the decision by a divided panel of the Court of Appeals reported at 70 N.C. App. 10, 318 S.E. 2d 849 (1984), affirming summary judgment for defendants entered by Ezzell, J., at the 10 January 1983 session of District Court, EDGECOMBE County. Heard in the Supreme Court 14 March 1985.

Bridgers, Horton & Simmons, by Edward B. Simmons, for plaintiff appellant.

LeRoy, Wells, Shaw, Hornthal & Riley, by L. P. Hornthal, Jr., for defendant appellees.

PER CURIAM.

In granting summary judgment for defendants, the trial court dismissed plaintiffs complaint for a declaratory judgment and entered judgment for defendants on their counterclaim. The sole issue before this Court is the correctness of the Court of Appeals’ decision affirming the judgment on the counterclaim. For the reasons stated by Judge Webb in his dissent, the decision of the Court of Appeals as to this issue is reversed and this case is *321remanded to that court for remand to the District Court of Edgecombe County for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Justice VAUGHN did not participate in the consideration or decision of this case.