Following the filing of his complaint on February 22, 1977, appellant repeatedly sought discovery which defendants successfully avoided until August 1, 1977, when a hearing was held upon a motion for summary judgment and motion to dismiss filed July 25, 1977, by appellees. In an order dated September 1, 1977, the trial court granted the motion to dismiss the complaint and denied appellant's motion for sanctions for failing to respond to numerous subpoenas to take deposition and deliver records of the association for inspection. No transcript of this hearing is before this court and no brief has been filed by appellees. Appellant appeals from the "Decree" entered on September 1, 1977, and also appeals from the denial of his motions to set aside and for new trial entered November 15, 1977.
1. This record shows the court considered documentary evidence outside the verified pleadings which was not excluded by the trial court. We, therefore, consider the ruling of the trial court as one for summary judgment. Code Ann. 81A-112 (c).
2. A review of the pleadings, affidavits and documents in this record shows that there are genuine issues of material fact and that summary judgment was improperly granted.