Wednesday, September 02, 2009, 9:37 AM

Court of Appeals Discusses the Use of Pleadings and Discovery in Support of Summary Judgment

In Asheville Sports Properties v. The City of Asheville, the plaintiff brought suit to recover funds spent on repairing damage that occurred when two sink holes developed on its property. The plaintiff contended that the city was liable for the repair costs because the City had a duty to maintain and repair the pipes.

In the course of affirming the trial court's decision to grant summary judgment for the City, Court of Appeals provided guidance to the bench and bar on what materials a trial court may properly consider when deciding a motion for summary judgment. The Court of Appeals held that in order to rely upon statements contained in a verified pleading, the pleading must demonstrate that the individual verifying the pleading had personal knowledge of the facts contained in the allegations and that the individual is competent to testify to those facts. Statements contained in a verified pleading that are made "upon information and belief" should not be considered by the trial court in deciding a motion for summary judgment.

Additionally, the Court of Appeals also held that a party may not rely upon its own unsworn responses to requests for production of documents to support a motion for summary judgment.

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