Alpine Village, Inc. v. Lomas & Nettleton Financial Corporation

219 S.E.2d 242 (1975)

27 N.C. App. 403

ALPINE VILLAGE, INC. v. LOMAS & NETTLETON FINANCIAL CORPORATION.

No. 7512DC424.

Court of Appeals of North Carolina.

November 5, 1975.

Smith & Geimer by Kenneth A. Glusman, Fayetteville, for plaintiff-appellee.

Pope, Reid & Lewis by Marland C. Reid, Fayetteville, for defendant-appellant.

*243 HEDRICK, Judge.

Although the record indicates that defendant excepted to the order denying its 12(b)(6) motion, defendant has failed to bring forward and argue this exception in its brief. It is, therefore, deemed abandoned. Moreover, it is clear that the complaint does state a claim upon which relief can be granted.

Defendant assigns as error the entry of summary judgment for plaintiff. Since G.S. 1A-1, Rule 56(a) provides that claimant may file a motion for summary judgment at any time thirty days after the commencement of the action and G.S. 1A-1, Rule 6(b) provides that the time within which to file responsive pleadings may be extended for thirty days, summary judgment for claimant, under some circumstances, might be appropriate before the responsive pleading has been filed or even before the time to file responsive pleadings has expired.

In the present case, defendant filed no answer; but it had twenty days after it received notice that its 12(b)(6) motion had been denied within which to file an answer. G.S. 1A-1, Rule 12(a)(1). The affidavit filed by defendant in opposition to plaintiff's motion for summary judgment denied the material allegations of plaintiff's complaint; but this affidavit was rejected and not considered by the court because it was not in the form prescribed by Rule 56(e). We note the court's ruling in this regard was correct.

If the rejected affidavit had been filed as an answer, it would have raised genuine issues of material fact and summary judgment for plaintiff obviously would have been inappropriate. Since the defendant had not waived its right to file an answer and the defendant had even moved that the hearing on plaintiff's motion for summary judgment be continued, and the trial court could not anticipate what defendant's answer would be if it did in fact file an answer, summary judgment for plaintiff under the circumstances of this case was premature. Because of the unusual posture of the case at the time summary judgment was entered for plaintiff, we need not consider the legal effect of the affidavit filed by plaintiff in support of its motion for summary judgment. See Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971); Shearin v. National Indem. Co., N.C.App., 218 S.E.2d 207 (filed 1 October 1975).

For the reasons stated the judgment appealed from is vacated and the cause remanded to the district court for further proceedings.

Vacated and remanded.

MORRIS and ARNOLD, JJ., concur.