60 N.C. App. 170 | N.C. Ct. App. | 1982
Plaintiffs’ first argument is that the trial court erred in ruling that plaintiffs’ affidavits, which were filed on the day of the summary judgment hearing, were inadmissible. We do not agree. G.S. 1A-1, Rule 56(c) provides, in part: “The adverse party prior to the day of hearing may serve opposing affidavits.” This rule was explained in Nationwide Mutual Insurance Company v. Chantos, 21 N.C. App. 129, 203 S.E. 2d 421 (1974):
It is clear that opposing affidavits are to be served prior to the day of the hearing. It follows that the clear intent of the legislature is that supporting affidavits should be filed and served sufficiently in advance of the hearing to permit opposing affidavits to be filed prior to the day of the hearing.
Nationwide Insurance Company v. Chantos, 21 N.C. App. at 130, 203 S.E. 2d at 423. Accord, Rockingham Square Shopping Center, Inc. v. Integon Life Insurance Corp., 52 N.C. App. 633, 279 S.E. 2d 918, review denied, 304 N.C. 196, 285 S.E. 2d 101 (1981).
Plaintiffs’ second argument is that the trial court erred in granting summary judgment for defendant because there is a genuine issue of fact. We agree.
Summary judgment should be rendered “if 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.” G.S. 1A-1, Rule 56(c). Since the trial judge only considered the pleadings in making his determination,
In this case, plaintiffs’ allegations indicate that the surrounding circumstances and location of the property has not changed, and the rezoning was arbitrary and capricious. Since the pleadings give defendants sufficient notice of the nature and basis of plaintiffs’ claim to enable them to answer, and there is no insurmountable bar to recovery on the face of the complaint, the judgment on the pleadings should be reversed.
Reversed.