Conover v. Newton, 112

• Decision Date: 12 July 1979
• Docket Number: No. 112,112
• Parties: CONOVER, v. NEWTON. Birch A. ALLMAN et al. v. The CITY OF NEWTON. In re ANNEXATION ORDINANCE BY the CITY OF CONOVER.
• Court: North Carolina Supreme Court

Page 216

256 S.E.2d 216

297 N.C. 506

CONOVER, v. NEWTON.

Birch A. ALLMAN et al. v. The CITY OF NEWTON.

In re ANNEXATION ORDINANCE BY the CITY OF CONOVER.

No. 112.

Supreme Court of North Carolina.

July 12, 1979.

Corne & Pitts by Larry W. Pitts, Newton, for appellant-petitioners.

Williams, Pannell & Lovekin by Martin C. Pannell, Newton; Patton, Starnes & Thompson by Thomas H. Starnes, Morganton, and Lake & Nelson by Broxie J. Nelson, Raleigh, for appellee-City of Conover.

Isenhour & Long by David L. Isenhour, Newton, for appellees-Allman, et al.

BROCK, Justice.

Appellant-Newton first raises a series of procedural assignments of error, which it is contended require this Court to reverse the superior court's orders in Allman v. Newton and Conover v. Newton. These assignments of error although made on independent grounds are closely related in nature and will be considered together.

First, appellant-Newton contends that the trial court committed prejudicial error by proceeding to hear the plaintiffs' converted motion for judgment on the pleadings in Allman v. Newton in that Newton was not given the requisite notice of such hearing. Second, appellant-Newton contends that the trial court committed prejudicial error by proceeding to hear the converted motion for judgment on the pleadings in Allman v. Newton and the motion for partial summary judgment in Conover v. Newton because there were discovery proceedings, initiated by Newton, pending in both cases at the time the court heard the motions. Third, appellant-Newton contends that the grant of summary judgment in Conover v. Newton should be reversed because it was entered on grounds other than those raised in Conover's written motion.

A motion for judgment on the pleadings in Allman v. Newton was filed on 27 July 1978, setting 31 July 1978 as the date for a hearing on it. At the hearing on 31 July 1978 the motion was converted to a motion for summary judgment pursuant to N.C.R.Civ.P. 12(c) when the court proceeded to consider matters outside the pleadings, I. e., the testimony of plaintiffs in the case. Rule 12(c) provides that when a motion for judgment on the pleadings is converted to a Rule 56 motion for summary judgment "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Assuming that the conversion of a Rule 12(c) motion for judgment on the pleadings into a Rule 56 motion for summary judgment brings into effect the ten day procedural notice requirement of Rule 56(c), See Long v. Coble, 11 N.C.App. 624, 182 S.E.2d 234, Cert. denied 279 N.C. 395, 183 S.E.2d 246 (1971) and 5 Wright & Miller, Federal Practice and Procedure, § 1371, p. 704 and § 1366, p. 683 n. 72 (citing cases interpreting the similar language in Fed.R.Civ.P. 12(b)(6)), we do not think the court's failure in this instance to allow such constitutes reversible error.

It is apparent from the record in these three cases that all of the evidence obtainable by way of the discovery procedures initiated by appellant-Newton was fully developed at the hearing on the motions. In Allman v. Newton the sole attempt at discovery intended to lead to the production of evidence for the purpose of opposing a motion for either judgment on the pleadings or a motion for summary judgment was a set of interrogatories directed to plaintiffs in the case. At the hearing on the converted motion for judgment on the pleadings, all plaintiffs, with the exception of Anna Wyatt Isenhour, testified and were extensively cross-examined about their initial decision to sign the petition for voluntary annexation by Newton and their subsequent decision to withdraw. The record reveals, furthermore, that there was no factual controversy to be decided. ¹

The questions presented by the converted motion in Allman v. Newton were clearly defined questions of law. Did the plaintiffs have the right to withdraw their signatures, and, if so, what was the effect on the Newton annexation ordinance? The law as it related to these questions was ably argued by counsel for both plaintiffs and defendant. We do not think appellant-Newton was, therefore, prejudiced by the lack of ten days notice of the hearing on plaintiffs' motion. See Oppenheimer v. Morton Hotel Corp., 324 F.2d 766 (6th Cir. 1963); LeFevre v. Reliable Paint Supply Co., 152 Misc. 594, 273 N.Y.S. 903 (1934); 10 Wright & Miller, supra, § 2719, p. 452.

Appellant-Newton's second procedural contention is also without merit. Ordinarily it is error for a court to hear and rule on a motion for summary judgment when discovery procedures, which might lead to the production of evidence relevant to the motion, are still pending and the party seeking discovery has not been dilatory in doing so. Bane v. Spencer, 393 F.2d 108 (1st Cir. 1968), Cert. denied 400 U.S. 866 91 S.Ct. 108, 27 L.Ed.2d 105 (1970); Joyner v. Hospital, 38 N.C.App. 720, 248 S.E.2d 881 (1978); 10 Wright & Miller, supra, § 2741, p. 731. But despite the fact that discovery procedures initiated by Newton were still pending at the time the court proceeded to hear the motions for summary judgment in Allman v. Newton and Conover v. Newton, we do not think that, in this instance, the court's action constitutes reversible error.

In Allman v. Newton, appellant-Newton had filed interrogatories to all plaintiffs. As noted Supra, all plaintiffs, with the exception of one, testified at the hearing and were extensively cross-examined by counsel for appellant-Newton about their decisions to withdraw from the voluntary annexation petition. The interrogatories directed to these plaintiffs by appellant-Newton appear in the record and reveal that their sole purpose was to elicit information about the plaintiffs' decisions to withdraw. Appellant-Newton's counsel ably brought out this information by cross-examining plaintiffs at the hearing, and we do not think the fact that this information came out in this fashion, rather than by way of answers to the interrogatories filed, prejudiced appellant-Newton.

In Conover v. Newton, appellant-Newton filed on 28 July 1978 a notice of intent to take depositions of various elected and appointed officials of the City of Conover. None of these individuals had been deposed at the time the court proceeded to hear and rule on Conover's motion for partial summary judgment. For the same reasons set out above, we do not feel this error prejudiced appellant-Newton. Seven of the nine individuals sought to be deposed testified at the consolidated hearing and were extensively questioned by counsel for appellant-Newton. Their testimony clearly reveals that no factual questions were presented for decision. Furthermore, the court reserved ruling on the motion until 11 August 1978 in order that appellant-Newton might file further affidavits in opposition to the motion. No such affidavits were filed until 14 August 1978. This assignment of error, for the reasons stated, is overruled.

Appellant-Newton's assignment of error to the grant of summary judgment in favor of Conover on grounds other than those raised in Conover's written motion for summary judgment is also overruled. We note first that Rule 56 does not require any grounds be stated in a motion for summary judgment. Furthermore, the issue raised by Conover's motion was whether the petition for voluntary annexation by Newton was signed by all owners of real property within the area described in it. The grant of summary judgment in favor of Conover on grounds that the withdrawals by the plaintiffs in Allman v. Newton rendered the petition insufficient was clearly within the issue raised by Conover's motion.

Having considered the procedural errors raised by appellant-Newton and finding them to be without merit, we now proceed to consider appellant-Newton's contention that there was error in the court's ruling that Newton's entire annexation ordinance was void and the grant of summary judgment for plaintiffs in Conover v. Newton and Allman v. Newton on that basis. This assignment of error is two-pronged. Appellant-Newton first contends that the court erred in ruling that the property owners had the right to withdraw from the voluntary annexation petition. Second, appellant-Newton contends that even if such ruling was correct, the court erred in holding that the entire Newton annexation ordinance was void. Appellant's contention is that a correct application of the law requires that only that part of the annexation ordinance, which includes the area that became non-contiguous to the City of Newton as a result of the withdrawals (including that property owned by those who withdrew), should be void. We find both of these contentions to be without merit.

The superior court considered its ruling that the property owners had the right to withdraw to be dispositive of the motions in both Allman v. Newton and Conover v. Newton. With this consideration we agree. G.S. § 160A-31. Annexation by Petition. (a) provides "(t)he governing board of any municipality may annex by ordinance any area contiguous to its boundaries upon presentation to the governing board of a petition signed by the owners Of all the real property located within such area. The petition Shall be signed by Each owner of real property in the area . . . ." (Emphasis added.) Thus, the statutory provision pertinent to this appeal is the requirement that the petition be signed by All of the owners of real property located within the area described in the petition submitted to the governing board of a municipality.

It is uncontroverted that six owners of real property located within the area described in this petition, who had originally signed it, withdrew at the public hearing on it, which is required by G.S. § 160A-31(c). It is also uncontroverted that the City of Newton passed an ordinance on 3 May 1978 annexing all of the area described in the petition as originally submitted, including the property of those who sought to...