Peace v. Peace Broadcasting Corp.

CARSON, Judge. The plaintiff maintains that the court committed error in denying the motion to strike certain portions of the defendants’ motion for summary judgment. The plaintiff filed a response to the motion for summary judgment alleging that there was a disputed issue of material fact and the defendants were consequently not entitled to summary judgment. In addition, the plaintiff moved pursuant to Rules 12(f) and 56(e) of the North Carolina Rules of Civil Procedure to strike certain portions of the affidavit of Joseph M. Whitehead. Rule 56(e) requires that supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. A considerable portion of the affidavit was, on its face, based on hearsay evidence and should have been stricken. Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971) ; Patterson v. Reid, 10 N.C. App. 22, 178 S.E. 2d 1 (1970). Furthermore, the affiant gave numerous opinions concerning the law of the Commonwealth of Virginia. There was no stipulation that the affiant was an expert, and absent such a finding by the court, [634] it was improper to allow him to give opinion evidence. Lineberger v. Insurance Co., 12 N.C. App. 135, 182 S.E. 2d 643 (1971). Furthermore, the affidavit was not sworn to before a notary or someone authorized to administer oaths. While this was apparently inadvertence on the part of the person preparing the affidavit, letters which are not under oath may not be considered as affidavits. Ogburn v. Sterchi Brothers Stores, Inc., 218 N.C. 507, 11 S.E. 2d 460 (1940) ; Short v. City of Greensboro, 15 N. C. App. 135, 189 S.E. 2d 560 (1972). Since the document itself was not admissible because of the failure to have it notarized, the attachments to it were likewise inadmissible. If the purported affidavit and its attachments were not to be considered by the trial court, there was insufficient evidence for the court to grant the motion for summary judgment. The deposition of the defendant Joseph M. Whitehead was insufficient by itself to support the summary judgment. Savings and Loan Assoc. v. Trust Co., 282 N.C. 44, 191 S.E. 2d 683 (1972) ; Page v. Sloan, 281 N.C. 697, 190 S.E. 2d 189 (1972). For these reasons the summary judgment on the third claim for relief must be vacated. Judgment vacated. Judge Hedrick concurs. Judge Britt concurs in result.