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Calhoun v. Wayne Dennis Heating & Air Conditioning6/16/1998
hear the plaintiff's motion for summary judgment because the defendants had not received adequate notice of the motion. The trial court proceeded, however, to sign a "Judgment" granting the plaintiff's "motion . . . for judgment" and finding that there were "no genuine issue as to any material fact." Although not designated a summary judgment, we hold that the 8 July 1997 "Judgment" was in fact a summary judgment. Because the defendants did not have ten days notice of the hearing on the motion, see N.C.G.S. ยง 1A-1, Rule 56(c) (1990), and because there is no evidence that the defendants waived their right to the notice, see Patrick v. Williams, 102 N.C. App. 355, 367, 402 S.E.2d 452, 459 (1991) (notice can be waived), the trial court was without authority to grant summary judgment. Indeed, the trial court orally ruled that it would not hear the motion for summary judgment because timely notice had not been given to the defendants.
The "Judgment" of the trial court must, therefore, be reversed and this case remanded to the trial court. On remand, the trial court must again address the plaintiff's motion for summary judgment.
Reversed and remanded.
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