Raintree Homeowners Ass'n, Inc. v. Raintree Corp.

• Decision Date: 21 June 1983
• Docket Number: No. 8226SC821,8226SC821
• Citation: 303 S.E.2d 579,62 N.C.App. 668
• Parties: RAINTREE HOMEOWNERS ASSOCIATION, INC., and Larry L. Falcone, individually, and on behalf of other persons similarly situated v. RAINTREE CORP., a corporation.
• Court: North Carolina Court of Appeals

Page 579

303 S.E.2d 579

62 N.C.App. 668

RAINTREE HOMEOWNERS ASSOCIATION, INC., and Larry L. Falcone individually, and on behalf of other persons similarly situated v. RAINTREE CORP., a corporation.

No. 8226SC821.

Court of Appeals of North Carolina.

June 21, 1983.

Weaver & Bennett by F. Lee Weaver, Matthews, for plaintiffs, appellants.

Kennedy, Covington, Lobdell & Hickman by Edgar Love, III, Charlotte, for defendant, appellee.

HEDRICK, Judge.

Plaintiffs first ask us to consider whether it was error for the trial court to permit the filing of affidavits supporting defendant's motion for summary judgment.

Plaintiffs point out that the trial court's order, "That defendant's motion to dismiss and for summary judgment as to the complaint be granted and that the complaint and each claim thereunder be dismissed" is unclear as to whether it is based on the pleadings alone or whether matters outside the pleadings were considered. Because the trial court allowed the filing of the affidavits without limiting their use, plaintiffs contend that defendant's 12(b)(6) motion was thereby converted to one for summary judgment, Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979), and asks us to consider the propriety of the trial court's action in that context.

Plaintiffs argue that it was error for the trial court to consider, in connection with the summary judgment motion, the affidavits filed with the court on 30 April 1982, and the supplemental affidavit filed on 3 May 1982 on the grounds that they were not timely. In support of their argument, plaintiffs refer us to the North Carolina Rules of Civil Procedure, specifically Rule 6 as it applies to Rule 56 regarding the submission of affidavits in support of a motion for summary judgment. Plaintiffs argue that Rule 6(d) requires that supporting affidavits be served with the motion unless the filing period has been enlarged by the court. Since the court in this case had not enlarged the filing period, plaintiffs argue, defendant was required to submit its supporting affidavits with its motion for summary judgment.

Plaintiffs cite us to the case of Insurance Co. v. Chantos, 21 N.C.App. 129, 130, 203 S.E.2d 421, 423 (1974), wherein this Court held that "Rule 6(d) applies to affidavits in support of a Rule 56 motion for summary judgment."

We do not question the holding in Chantos, but find that case to be clearly distinguishable from the one before us. There, the court was concerned with the timeliness of affidavits filed in support of a motion for summary judgment. Here, we are concerned with two motions, one for dismissal under Rule 12(b)(6) and one for summary judgment under Rule 56.

Plaintiffs properly objected to the defendant's filing of affidavits after the summary judgment motion was filed and, if summary judgment were the only motion under consideration by the court, the affidavits should have been excluded by the court. However, the court also had before it defendant's 12(b)(6) motion to dismiss. Plaintiffs correctly contend that the court's implicit consideration of defendant's affidavits in connection with the 12(b)(6) motion converts that motion to one for summary judgment. N.C.Gen.Stat. § 1A-1, Rule 12(b). Rule 12(b) also says that, in such a case, "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." Id. It is significant that the rule provides a "reasonable opportunity" rather than requiring that the presentation of materials be in accordance with Rule 56.

In a previous case with this defendant as plaintiff, this Court held that the notice required by Rule 12(b) in situations where, as here, a 12(b)(6) motion is being treated as a motion for summary judgment is procedural rather than constitutional. Raintree Corp. v. Rowe, 38 N.C.App. 664, 248 S.E.2d 904 (1978). As such, the proper action for counsel to take is to request a continuance or additional time to produce evidence. Id. Objections to timeliness are therefore not germane in such situations and the trial court has discretion, provided the opposing party has a "reasonable opportunity" to present pertinent material, to take and consider affidavits in support of a converted 12(b)(6) motion. By participating in the hearing and failing to request a continuance or additional time to produce evidence, a party waives his right to this procedural notice. Id., see also Story v. Story, 27 N.C.App. 349, 219 S.E.2d 245 (1975).

In the present case, plaintiffs' objections to the affidavits filed 28 April 1982 and 3 May 1982 concern the timeliness of their filing. Under the circumstances of this case, such objections are not appropriate. Plaintiffs did not request a continuance or additional time to produce evidence. Plaintiffs having participated in the hearing on the motion for summary judgment, without such objection or request for continuance, thereby waived any right to procedural notice with respect to the hearing. It was not an abuse of discretion for the trial court to consider defendant's affidavits and grant defendant's motion for summary judgment. The affidavits were properly before the court and plaintiffs' contention is without merit.

We move now to a consideration of whether the trial court's grant of summary judgment for defendant was proper.

(A) In their first claim, plaintiffs ask the court to find that the Membership Agreement, submitted with plaintiffs' complaint as Exhibit A, requires defendant to provide thirty days...