Rose v. GUILFORD COUNTY, BY & THROUGH GUILFORD

298 S.E.2d 200 (1982)

A.J. ROSE and wife, Dora W. Rose v. GUILFORD COUNTY, By and Through the GUILFORD COUNTY COMMISSIONERS.

No. 8218SC116.

Court of Appeals of North Carolina.

December 21, 1982.

*202 R. Horace Swiggett, Jr., and Herman Winfree, Greensboro, for plaintiffs-appellants.

Deputy County Atty., Margaret A. Dudley, Greensboro, for defendants-appellees.

VAUGHN, Judge.

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, the motion for summary judgment was, in effect, a motion for judgment on the pleadings under G.S. 1A-1, Rule 12(c). Burton v. Kenyon, 46 N.C.App. 309, 264 S.E.2d 808 (1980). When a motion for judgment on the pleadings is made, "[t]he trial court is required to view the facts and permissible inferences in the light most favorable to the nonmoving party. All well pleaded factual allegations in the nonmoving party's pleadings are taken as true...." Ragsdale v. Kennedy, 286 N.C. 130, 137, 209 S.E.2d 494, 499 (1974). See also Town of Bladenboro v. McKeithan, 44 N.C.App. 459, 261 S.E.2d 260, appeal dismissed, 300 N.C. 202, 282 S.E.2d 228 (1980). Pleadings comply with our present concept of notice pleading if the allegations in the complaint give defendant sufficient notice of the nature and basis of plaintiffs' claim to file an answer, and the face of the complaint shows no insurmountable bar to recovery. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). The allegations in plaintiffs' complaint, taken as true, tend to show that there was no substantial change in the rezoned property, and defendants acted in an unreasonable, discriminatory, illegal, arbitrary, and capricious manner. This clearly gave defendants sufficient notice of the nature and basis of plaintiffs' claim. Although the county commissioners have the power to rezone property when reasonably necessary for public health, safety, morals or welfare, this authority is limited in that it may not be exercised arbitrarily or capriciously. This concept was explained in Allred v. City of Raleigh, 277 N.C. 530, 178 S.E.2d 432 (1971). In Allred, the corporate defendant bought a 9.26 acre tract, which was zoned R-4. The corporate defendant's request that the property be rezoned from R-4 to Shopping Center was denied. Several years later the corporate defendant twice filed applications requesting the property be rezoned to R-10, and submitted plans for high rise luxury apartments. Eventually, the city council adopted the rezoning ordinance. Plaintiffs attacked the ordinance on the ground that it exceeded and conflicted with the authority conferred by the enabling legislation. The Court discussed the relevant zoning statutes, now in G.S. 160A-381 through G.S. 160A-392, and *203 determined that one of the fundamental concepts of zoning is that "[s]uch regulations shall be made in accordance with a comprehensive plan...." G.S. 160-174 [repealed by session laws 1971, c. 698, s. 2, effective 1 January 1972, current statute is G.S. 160A-383]. The Court held the ordinance invalid and unenforceable because they found that the city council did not determine that the 9.26 acre tract and the surrounding circumstances justified rezoning the tract to R-10. Instead, the city council based its actions on its approval of the applicant's plans to build high rise luxury apartments. The Court held that disregarding the fundamental concepts of zoning may be arbitrary and capricious. "Rezoning must be effected by the exercise of legislative power rather than by special arrangements with the owner of a particular tract or parcel of land." Allred v. City of Raleigh, 277 N.C. at 545, 178 S.E.2d at 441. See also Blades v. City of Raleigh, 280 N.C. 531, 187 S.E.2d 35 (1972).

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.

WELLS and WHICHARD, JJ., concur.