Knotville Volunteer Fire Department, Inc. v. Wilkes County & Broadway Fire Department, Inc.

ARNOLD, Judge. Defendant Broadway Fire Department, Inc. contends that the trial court erred in denying its motion for summary judgment and in granting plaintiffs motion for summary judgment. We disagree. In reviewing an order of summary judgment it must be determined that there is no genuine issue of material fact and that judgment was appropriate as a matter of law. G.S. 1A-1, Rule 56; Oliver v. Roberts, 49 N.C. App. 311, 271 S.E. 2d 399 (1980), cert. denied (1981, N.C.), 276 S.E. 2d 283 (1981). In the present case, there were no material issues of fact in dispute. All that remained was a resolution of the law involved. We hold that the trial court correctly concluded that the disputed area was a part of the Knot-ville Fire District. The referendum which created the Knotville Fire District contained a very exact and detailed description of the district. Also filed with the referendum was a map of Wilkes County on which the new district supposedly had been outlined, but this map excluded the disputed portion from the hand-drawn boundaries. It is, however, the precise wording of the referendum that controls, not the accompanying map. After a district has been created, the only ways to alter the established boundaries are listed in G.S. 69-25.11. None of the statutory procedures were followed here. The area of the Knot-ville Fire District remains the same as when it was established by referendum in 1975. Shortly after the Knotville Fire District was created, the Wilkes County Board of Commissioners entered into a contract with the Knotville Fire Department in which the latter was to provide fire protection for the Knotville Fire District until the year 2008. Defendant attempts to attack this contract, but G.S. 69-25.5 specifically allows county commissioners to contract with [601] an incorporated nonprofit volunteer fire department to provide fire protection. The contract between Wilkes County and the Knotville Fire Department is valid and binding. The trial court correctly concluded that the action of the Wilkes County Board of Commissioners on 18 June 1985 which authorized the Broadway Fire Department to serve the disputed area was a violation of the contract with the Knotville Fire Department. The trial court appropriately granted plaintiffs motion for summary judgment. Defendant also contends that the trial court erred in considering a publication from the Institute of Government in Chapel Hill, entitled Fire Protection Law in North Carolina, and in consulting with its author Ben F. Loeb, Jr. before rendering judgment. We disagree. The trial court was perfectly within its limits to research the applicable statutes and current case law by consulting with Mr. Loeb, an expert in the field of fire protection law. Defendant’s contention is without merit. We are also unpersuaded by defendant’s final contention that the equitable defense of laches prevents plaintiff from bringing this action because the Knotville Fire Department waited approximately ten years from the creation of the district before filing to seek payment of the special fire taxes being levied and collected by Wilkes County in the disputed area. The defense of laches may be available to a defendant if the plaintiff has delayed in bringing the action for an unreasonable amount of time and the defendant has been prejudiced thereby. Capps v. City of Raleigh, 35 N.C. App. 290, 241 S.E. 2d 527 (1978). Laches is available only when the defendant has been prejudiced by the delay. McRorie v. Query, 32 N.C. App. 311, 232 S.E. 2d 312, disc. rev. denied, 292 N.C. 641, 235 S.E. 2d 62 (1977). Assuming arguendo that there was an unreasonable delay in the instant case, defendant has made no showing that it was in any way prejudiced by such inaction. In fact, the Broadway Fire Department has done nothing but benefit from any delay because it has been receiving the special fire taxes for the disputed area during that time. Defendant’s contention is totally without merit. [602] Affirmed. Judges Martin and Greene concur.