Leverich v. RODDENBERRY FARMS, INC.

321 S.E.2d 328, 253 Ga. 414, 1984 Ga. LEXIS 967

• Court: Supreme Court of Georgia
• Decided: October 11, 1984
• Docket: 41289
• Status: Published

Opinions

Clarke, Justice.

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 SE2d 915) (1984); Smith v. Conley, 152 Ga. App. 589 (263 SE2d 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. Nat. Distributing Co., 157 Ga. App. 666 (278 SE2d 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 SE2d 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.

Decided October 11, 1984. Ronnie Joe Lane, for appellants. Robert B. Langstaff, for appellee.

Judgment reversed and remanded.

All the Justices concur, except Hill, C. J., who concurs specially.