City of Elizabeth City v. LFM Enterprises, Inc. , 48 N.C. App. 408 ( 1980 )

269 S.E.2d 260 (1980) 48 N.C. App. 408

CITY OF ELIZABETH CITY, a North Carolina Municipal Corporation, Plaintiff,
v.
LFM ENTERPRISES, INC., a North Carolina Corporation; Northeastern Motors, Inc., a North Carolina Corporation; and Lucien F. Morrisette, Individually and as Stockholder, Officer and Director of LFM Enterprises, Inc., and Northeastern Motors, Inc., Defendants.

No. 801DC136.

Court of Appeals of North Carolina.

August 19, 1980.

Wilson & Ellis by J. Kenyon Wilson, Jr., M. H. Hood Ellis and David W. Boone, Elizabeth City, for plaintiff-appellee.

Twiford, Trimpi & Thompson by John G. Trimpi, Elizabeth City, for defendants-appellants.

WELLS, Judge.

To reach the heart of the matter before us, we recapitulate the events in the proceedings below:

1. 4 May 1979—plaintiff served its verified complaint on defendants.

2. 4 June 1979—defendants obtained an extension of time to file answer or other responsive pleadings until 2 July 1979.

3. 27 June 1979—defendants filed motions to dismiss for judgment on the pleadings and summary judgment.

4. 26 September 1979—plaintiff filed a request that the cause be calendared on the civil action motion calendar.

5. 4 October 1979—plaintiff moved for summary judgment.

6. 24 October 1979—defendants moved to continue the hearing on plaintiff's motion for summary judgment.

7. 29 October 1979—defendants' motion to dismiss and plaintiff's motion for summary judgment came on for hearing. Defendants' motion was denied; plaintiff's motion was granted.

Defendants, citing Village, Inc. v. Financial Corp., 27 N.C.App. 403, 219 S.E.2d 242 (1975), disc. rev. denied, 289 N.C. 302, 222 S.E.2d 695 (1976), argue that they were entitled to twenty days after the denial of their motion to dismiss in which to answer, and therefore the hearing and granting of plaintiff's motion for summary judgment was premature. We believe the case before us is controlled by Real Estate Trust v. Debnam, 299 N.C. 510, 263 S.E.2d 595 (1980). In the Debnam case, defendant moved to dismiss, did not answer, and filed no papers rebutting plaintiff's papers in support of its motion for summary judgment. The Court stated, 299 N.C. at 513, 263 S.E.2d at 598:

G.S. 1A-1, Rule 56(a) provides that a party may move for summary judgment "at any time after the expiration of 30 days from the commencement of the action." [Court's emphasis.] As the Court of Appeals held, even if defendants had filed their answer, they cannot rest on that responsive pleading when the party moving for summary judgment has prima facie established that he is entitled to it. The party opposing the motion must come forward with additional evidence in opposition to the motion. Defendants could have come forward with this evidence, e.g., in the form of affidavits, even though they had filed no answer. Summary judgment was correctly entered for the plaintiff and we affirm the Court of Appeals on this issue.

Plaintiff's papers in this case made out a prima facie case in support of its motion. Defendants obviously had knowledge of the facts and circumstances underlying the dispute and after almost a six-month interval did nothing to rebut plaintiff's facts. We hold that under these circumstances, defendants were not entitled to delay consideration of the summary judgment motion until they filed an answer and that summary judgment was not entered prematurely.

In a separate assignment of error, defendants attempt to call into question the validity of that portion of plaintiff's zoning ordinance requiring a twenty-five foot planting strip. Plaintiff's complaint shows that in a previous proceeding before the Elizabeth City Board of Adjustment, defendants sought to obtain a variance from this portion of the ordinance so as to allow them to install a ten foot strip instead. This request was denied, and defendants apparently did not seek judicial review of the action of the Board of Adjustment by way of certiorari as provided by G.S. 160A-388(e). Defendants failed to exercise the remedies available to them under the zoning ordinance and may not as a defense to the plaintiff's action for injunctive relief collaterally attack the validity of the ordinance. See, Durham County v. Addison, 262 N.C. 280, 136 S.E.2d 600 (1964); City of Hickory v. Machinery Co., 39 N.C.App. 236, 249 S.E.2d 851 (1978). All of defendants assignments of error are overruled and the judgment of the trial court is

Affirmed.

MORRIS, C. J., and VAUGHN, J., concur.