Leverich v. Roddenberry Farms, Inc., 41289
| Decision Date | 11 October 1984 |
| Docket Number | No. 41289,41289 |
| Citation | 321 S.E.2d 328,253 Ga. 414 |
| Parties | LEVERICH et al. v. RODDENBERRY FARMS, INC. |
| Court | Georgia Supreme Court |
Ronnie Joe Lane, Donalsonville, for William Leverich et al.
Robert B. Langstaff, Albany, for Roddenberry Farms, Inc.
Appellee Roddenberry Farms, Inc., made extensive improvements to its farm in Seminole County during a period between 1972 and 1975. Appellants filed suit in 1981 seeking to enjoin what they contend is a continuing nuisance caused by water, fertilizer and chemicals running onto their property. On October 10, 1983, Roddenberry Farms moved for summary judgment arguing that laches barred appellants' claim for injunction. The motion was heard on October 17, 1983. The court ruled in March, 1984, granting summary judgment to Roddenberry Farms. In June, after the appeal had been filed, the court, noting that it had not allowed the statutory thirty days' notice prior to the summary judgment hearing, signed an order nunc pro tunc allowing thirty days from October 17, 1983 for submission of supplementary materials.
We reverse. A motion for summary judgment must be served at least 30 days before the time fixed for the hearing. OCGA § 9-11-56(c). Appellants were entitled to the notice prescribed by the statute. Wallis v. Trustees, Sugar Hill United Methodist Church, 252 Ga. 51, 310 S.E.2d 915 (1984); Smith v. Conley, 152 Ga.App. 589, 263 S.E.2d 453 (1979). We do not view this as one of those cases where summary judgment is so clearly mandated that appellants can show no harm in the court's failure to follow the proper procedure. Premium Distributing Co. v. National Distributing Co., 157 Ga.App. 666, 278 S.E.2d 468 (1981).
The nunc pro tunc order does not cure the lack of notice of hearing and opportunity to respond because the case was already on appeal when the order was entered. We hold that appellant must have thirty days' notice of hearing and opportunity to respond. Therefore, this case is remanded for further proceedings consistent with this opinion.
We do not favor motions for summary judgment in injunction cases. King v. Ingram, 250 Ga. 887, 302 S.E.2d 105 (1983). In this case judicial economy would have been better served had the court taken the occasion to consider the injunction on the merits in the first instance. This is so because the issue of the presence of a question of material fact would have been removed by the factfinder's ruling. The appeal could then have proceeded upon the merits.
Judgment reversed and remanded.
All the Justices concur,...
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...that appellant[ ] can show no harm in the [trial] court's failure to follow the proper procedure.” Leverich v. Roddenberry Farms, Inc., 253 Ga. 414, 414, 321 S.E.2d 328 (1984). See also Stallings v. Synovus Bank, 326 Ga.App. 572, 572–573, 757 S.E.2d 187 (2014) (explaining that an order gran......
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...filed, see OCGA § 9-11-56(c); USCR 6.2, thereby depriving appellants of their right to respond. See generally Leverich v. Roddenberry Farms, 253 Ga. 414, 321 S.E.2d 328 (1984). While we note that the entry of summary judgment without allowing the full 30 days to respond is not always revers......