N.C. Gen. Stat. § 1A-1

Rule 56(e) permits an affidavit phrased in the passive voice when its contents reasonably show that the affiant had personal knowledge of the facts stated.

Bird v. Bird · filed 2008-10-07Rule 56(e)

Based on Cunningham's averments that she is a private investigator who was hired to investigate Cooper and Plaintiff, it is reasonable to assume that Cunningham was the observer referenced in her averments. We conclude that her affidavit "can be interpreted so as to comply" with Rule 56(e).

Rule 56(e) allows a party opposing summary judgment to use an affidavit setting out specific facts that show a genuine issue for trial.

Fiel v. Weil · filed 2008-10-07Rule 56(e)

Although defendants offered only Weil's affidavit, a response to a motion for summary judgment need only set forth specific facts by affidavit showing that there is a genuine issue of material fact.

Rule 56(a) permits affidavits on a motion for summary judgment; filing one does not itself entitle the opposing party to cross-examine the affiant.

Citibank (South Dakota), NA v. Bowen · filed 2008-12-16Rule 56(a)

The use of affidavits on a motion for summary judgment is permitted under N.C. Gen. Stat. § 1A-1, Rule 56(a) (2007). Defendant is not entitled to cross-examine the custodian of records simply because she filed a sworn statement in the case.

Rule 56(e) requires an affidavit opposing summary judgment to have a basis in personal knowledge; mere denials do not establish a genuine issue of fact.

Dixon v. Hill · filed 2009-01-06Rule 56(e)

In addition to the fact that these affidavits contain no basis to support an inference that they are based on Hill's personal knowledge, which is required by Rule 56(e), as we explained in Dixon I, a party cannot survive a motion for summary judgment by merely denying or refusing to admit certain facts.

Rule 56(c) permits a court to consider an affidavit filed on the hearing date with earlier summary judgment motions.

LaVALLEY v. LaVALLEY · filed 2009-12-22Rule 56(c)

Moreover, under Rule 56(c), we are entitled to consider the affidavit defendant filed 18 February 2008 in conjunction with the motions for summary judgment filed 17 May 2004 and 4 February 2005.

Rule 56(e) permits consideration of a summary judgment affidavit phrased in the passive voice when its context reasonably shows that the affiant had personal knowledge.

Bird v. Bird · filed 2010-01-29Rule 56(e)

We disagree and hold that the trial court was permitted to consider the Cunningham Affidavit under the specific facts of this case. As an initial matter, Cunningham’s statement that she “was retained to investigate Michael Scott Cooper and Deborah Hampton Bird to determine whether they cohabited” raises a reasonable inference that everything in her affidavit is based on her personal knowledge as an investigator.

A contradictory affidavit cannot defeat summary judgment when its conflict with the affiant’s deposition creates only a credibility issue, rather than a genuine issue of material fact.

Cousart v. Charlotte-Mecklenburg Hospital Authority · filed 2011-01-18Rule 56(c)

The conflicts between Dr. Allen’s deposition and affidavits, particularly the second one filed to survive summary judgment, leave the trial court with only a credibility issue, not a genuine issue of material fact.

Rule 56(e) requires documents offered in opposition to summary judgment to be admissible; unauthenticated documents cannot be considered.

Rankin v. Food Lion · filed 2011-03-01Rule 56(e)

A careful examination of the documents upon which Plaintiff bases her challenges to the trial court’s order demonstrates that they fail to meet the admissibility requirement of N.C. Gen. Stat. § 1A-1, Rule 56(e). Although Plaintiff characterizes these documents as “undisputed evidence of record” and argues that they establish that Defendant Delhaize America, Inc., is “Food Lion’s legal owner,” she failed to properly authenticate these documents at the time that she submitted them in opposition to Defendants’ request for summary judgment.

An affiant’s position in an organization may support an inference of personal knowledge and competence to testify in a summary judgment affidavit.

Charlotte-Mecklenburg Hospital Authority v. Talford · filed 2012-06-14Rule 56(e)

Nonetheless, because of the affiants’ positions in plaintiff’s organization, we may infer that they have the requisite personal knowledge of those matters and would be competent to give the testimony contained in their affidavits.

A properly submitted affidavit may raise an issue for consideration on summary judgment under Rule 56(c).

Suntrust Bank v. C & D Custom Homes, LLC · filed 2012-11-06Rule 56(c)

Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2011). ... This affidavit was properly before the trial court and is sufficient to raise the issue of the effectiveness of the POA.

Rule 56(e) requires a summary judgment affidavit to rest on personal knowledge; an affidavit discussing meeting minutes without alleging the affiant attended the meetings does not establish that knowledge.

Waterway Drive Property Owners' Ass'n v. Town of Cedar Point · filed 2012-12-18Rule 56(e)

“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.” N.C. Gen. Stat. § 1A-1, Rule 56(e)(2011). ... However, the affidavit does not allege personal knowledge of the county commissioner minutes, as it fails to allege that the affiant was present at these meetings.

Rule 56(e) requires summary judgment affidavits to state admissible facts based on personal knowledge; general allegations repeated from a pleading do not establish a genuine factual dispute.

White v. Northwest Property Group-Hendersonville 1, LLC · filed 2013-03-05Rule 56(e)

“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.” N.C. Gen. Stat. § 1A-1, Rule 56(e) (2009). None of Mr. White’s relevant averments set forth any more specific facts than the general allegations of the complaint.

Rule 56(c) permits a court to exclude a late summary judgment affidavit when the party makes no showing of excusable neglect.

Carter v. Clements Walker Pllc · filed 2014-01-10Rule 56(c)

Although the court could accept late affidavits or evidence with a showing of excusable neglect, there has been no demonstration or effort to demonstrate excusable neglect here.

On summary judgment, the court does not consider factual allegations unsupported by affidavits or other evidence.

Patmore v. Town Of Chapel Hill · filed 2014-04-01Rule 56(e)

Therefore, we do not consider plaintiffs’ allegations regarding their “innocence” or their inability to enforce the terms of the leases executed with their tenants, as these assertions were not supported by affidavits before the trial court.

Rule 56(e) does not permit a court to consider unsworn correspondence as evidence on summary judgment.

Duke Energy Carolinas, LLC v. Bruton Cable Service, Inc. · filed 2014-04-15Rule 56(e)

However, since the trial court erred by improperly considering unsworn correspondence between Bruton’s counsel and defense counsel, and defendants did not comply with the requirements of Rule 56, it is unnecessary to address these arguments.

Rule 56(e)'s personal-knowledge requirement permits experienced educators to describe career-status benefits and the economic assumptions that motivate teachers.

N.C. Ass'n of Educators, Inc. v. State · filed 2015-06-02Rule 56(e)

On the one hand, we are not convinced that the statements the State contests are beyond the personal knowledge of the affiant teachers and administrators, all of whom are experienced North Carolina educators and are thus sufficiently familiar with the Career Status Law to competently describe its benefits and protections in general terms, as well as the basic economic assumptions that motivate members of their profession.

An unverified complaint cannot be considered as evidence when deciding a motion for summary judgment.

Hampton v. Scales · filed 2016-07-05Rule 56(e)

This is a conclusory assertion without reference to specific factual evidence; moreover, plaintiff’s complaint is unverified and therefore was not proper for the trial court’s consideration in ruling on defendant’s motion for summary judgment.

Rule 56(c) permits an adverse party to serve opposing summary judgment affidavits at least two days before the hearing.

In re the Est. of James Junior Phillips · filed 2016-12-20Rule 56(c)

The affidavits were clearly served by hand delivery before the two day limit proscribed by Rule 56(c). The trial court abused its discretion by striking caveator’s four affidavits on that ground.

Rule 56(e) requires a party opposing summary judgment to provide specific facts; a conclusory opinion about property value is insufficient.

United Community Bank (Georgia) v. Wolfe · filed 2017-05-05Rule 56(e)

Under Rule 56, merely reciting the statutory language or asserting an unsubstantiated opinion regarding the foreclosed property’s value is insufficient.

Rule 56(e) does not permit a party to create a genuine issue of material fact by submitting an affidavit that contradicts the party’s prior deposition testimony.

Zagaroli v. Neill · filed 2018-03-28Rule 56(e)

Accordingly, Zagaroli’s affidavit contradicting his prior deposition testimony cannot create a genuine issue of material fact regarding the scope of Reclamation’s initial business.

Rule 56(e) excludes affidavit statements that are not based on the affiant’s personal knowledge from consideration on summary judgment.

Voliva v. Dudley · filed 2019-08-20Rule 56(e)

Plaintiff’s understanding of what the Beneficiaries agreed to is not based upon Plaintiff’s personal knowledge, however, and therefore is not properly considered in adjudging the propriety of summary judgment.

Rule 56(e) excludes unverified documents from consideration on summary judgment.

U.S. Bank Na'tl Ass'n v. Wood · filed 2019-11-05Rule 56(e)

We also grant Defendant’s 27 March 2019 motion to strike the purported “complete copy of the note” because it is an unverified document that is not properly considered in ruling on a motion for summary judgment.

Rule 56(e) requires a party opposing a supported summary judgment motion to present evidence of specific facts; unverified allegations do not create a triable issue.

Green v. Black · filed 2020-03-03Rule 56(e)

As mentioned above, see supra note 3, Defendant’s pro se filings are not verified, and therefore cannot create triable issues of fact in the face of Plaintiff’s affidavits.

Under Rule 56, a refuted, unsworn, inadmissible discovery response does not create a genuine issue of material fact.

Curlee v. Johnson · filed 2020-04-07Rule 56

A refuted, unsworn, pro se and inadmissible statement does not create a genuine issue of material fact.

Under Rule 56, a refuted, unsworn discovery answer by a co-defendant is not competent evidence of a genuine issue of material fact.

Curlee v. Johnson · filed 2020-04-07Rule 56

Under our precedents, a pro se and unsworn answer by a co-defendant to an ambiguous question in discovery, refuted at the sworn deposition, is not “competent evidence . . . [to show] . . . a genuine issue as to a material fact” of Johnson’s prior knowledge. Id. The dissenting opinion purports to bolster the unsworn answer, as creating a factual issue, but fails to address its competency and admissibility under N.C. Gen. Stat. § 1A-1, Rule 56.

Rule 56(e) requires summary judgment affidavits to rely on personal knowledge and admissible facts; unsupported speculation and hearsay must be disregarded.

Hyosung USA, Inc. v. Travelers Prop. Cas. Co. of Am. · filed 2021-12-16Rule 56(e)

The adjuster’s claim that a thunderstorm caused the damage suffered in Incident 2 is offered without supporting evidence or analysis, however, and, as such, constitutes impermissible speculation and conjecture which must be disregarded as inadmissible hearsay.

Rule 56(e) excludes legal conclusions from affidavits offered on summary judgment.

State Ex Rel. Jackson v. Mv Realty Pbc, LLC · filed 2026-01-16Rule 56(e)

In addition, paragraphs 9, 20, and 23 contain legal conclusions that likewise fail to meet admissibility requirements under Rule 56(e).

Rule 56(e) permits consideration of the portions of summary judgment affidavits that show personal knowledge, even when other portions must be disregarded.

Harris v. McLeod · filed 2026-02-04Rule 56(e)

Thus, after disregarding the portions noted above, the face of the affidavits demonstrate compliance with Rule 56(e). ... Accordingly, the trial court erred by refusing to consider these affidavits.

Rule 38 requires genuine issues of fact in civil actions to be tried by a jury unless the right to a jury trial is waived.

Brondum v. Cox · filed 1976-07-07Rule 38

In “other civil actions” genuine issues of fact must be tried by a jury unless the right to a jury trial is waived.

Rules 38 and 39 govern preservation of the right to a jury trial in an absolute divorce action.

Morris v. Morris · filed 1980-02-05

As for the instant case, we are bound under the present law to hold that the trial court erred in failing to grant defendant’s request for a trial by jury, since her right was properly preserved under G.S. 1A-1, Rules 38 and 39.

Rule 39 discretion is not exercised when a court merely denies a motion to invalidate an opposing party’s jury demand without deciding entitlement to a jury or choosing an advisory jury.

Faircloth v. Beard · filed 1986-11-04Rule 39

The order before us includes no finding by the trial court that the parties were or were not entitled to a trial by jury, as Rule 39(a) permits the trial court to do; nor does the record indicate that the trial judge was opting under Rule 39(c) for an advisory jury. The trial court’s order did not exercise the court’s discretion pursuant to Rule 39.

Rule 38 entitles a party who demands a jury trial on all factual issues to have material issues, including where a tort occurred, decided by a jury.

Darnell v. Rupplin · filed 1988-09-20Rule 38(b), (c)

Thus, pursuant to N.C.G.S. § 1A-1, Rule 38, defendant is entitled to have all material issues of fact, including the lex loci of the tort, decided by a jury.

Rule 38(b) requires a jury demand within 10 days after service of the last pleading directed to the issue, and Rule 38(d) provides that failing to make the demand waives a jury trial.

Dick Parker Ford, Inc. v. Bradshaw · filed 1991-04-16(b), (d)

Under Arney, if defendant and third party plaintiff Bradshaw’s counterclaims were compulsory, i.e., arose out of the subject matter of plaintiff’s complaint, then a demand made not later than ten days after service of plaintiff’s reply would constitute a timely demand under Rule 38(b). Even if it be assumed that the counterclaims were compulsory, to be timely,, demand for jury trial had to be made within ten days after service of plaintiff’s reply, filed 6 July 1989.

Rule 5(b) permits service of pleadings and other documents after the original complaint on a party’s attorney of record unless the court orders personal service on the party.

In Re HT · filed 2006-12-19Rule 5(b)

However, Rule 5(b) of the North Carolina Rules of Civil Procedure states that service of pleadings and other documents subsequent to the original complaint "may be made upon either the party or, unless service upon the party personally is ordered by the court, upon the party's attorney of record." N.C. Gen.Stat. § 1A-1, Rule 5(b) (2005). Because we have found that Rule 5 service of process was appropriate in this case, we likewise find that the service on Respondent-mother's attorney was permissible.

Rule 5(b) permits service of certain pleadings and papers by delivery, mail to the recipient's last known address, or filing with the clerk when no address is known.

Ball Photo Supply Co. v. McClain · filed 1976-07-07(b)

G.S. 1A-1, Rule 5(b) states that “With respect to such other pleadings and papers service upon the attorney or upon a party may also be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by filing it with the clerk of court.” We hold that this rule applies to the service of notice of appeal from a magistrate to the district court.

Rule 5(b) allows notice of written motions to be served on the attorney of record.

Griffith v. Griffith · filed 1978-09-05(b)

Although the defendant was not served personally in this case, G.S. 1A-1, Rule 5(b) allows service of notice of written motions by service on the attorney of record.

Rule 5(b) permits service of subsequent pleadings and papers by mail to a party’s last known address; service is complete when the properly addressed, prepaid mailing is deposited with the Postal Service.

Cromer v. Cromer · filed 1980-11-04(b)

Regarding service by mail, Rule 5(b) states that it is complete “upon deposit of the pleading or paper enclosed in a postpaid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.” ... Defendant was properly served.

Rule 5(a) requires service of a commissioners’ partition report on each party because the report is a “similar paper.”

Macon v. Edinger · filed 1980-12-02Rule 5(a)

In light of the fact that the report of commissioners became final in that all errors are waived if exceptions are not filed within ten days after filing, we find that the report is a “similar paper” under Rule 5(a) which must be served upon each of the parties.

Rule 5(b) provides sufficient notice of a commissioners’ report in a partition proceeding when a copy is duly mailed to a party.

Macon v. Edinger · filed 1981-06-02Rule 5(b)

It is our opinion, and we so hold, that sufficient notice of the filing of a report of commissioners is given to a party to a partition proceeding when a copy of the report is duly mailed as provided by G.S. § 1A-1, Rule 5(b).

Rule 5 service of an intervention motion accompanied by the pleading is sufficient to serve the party against whom relief is sought and to establish jurisdiction if all other requirements are met.

In Re Baby Boy Shamp · filed 1986-09-02Rule 5

Service pursuant to G.S. 1A-1, Rule 5 of the motion accompanied with the pleading is sufficient service upon the party against whom relief is sought or denied in the intervenor’s pleading and is sufficient process to acquire jurisdiction over the party if all other requisites for jurisdiction are met.

Rule 5(a) requires a new or additional claim against a party in default to be served in the same manner as a summons under Rule 4.

First Union National Bank v. Rolfe · filed 1986-12-30Rule 5(a)

A party who is in default for failure to appear is ordinarily not entitled to notice of additional pleadings in the case, but where a new or additional claim is asserted, service on the party, even though in default, is required in the same manner as provided by G.S. 1A-1, Rule 4 for the service of summons.

Rule 5(b) permits service of notice of a written motion on a party’s attorney of record unless the court orders otherwise.

Miller v. Miller · filed 1990-04-17Rule 5(b)

Unless otherwise ordered by the court, G.S. 1A-1, Rule 5(b) allows service of notice of written motions by service on the defendant’s attorney of record.

Rule 5(a) requires every written notice to be served on each party.

In Re Brown · filed 2000-12-29Rule 5(a)

North Carolina General Statute § 7A-289.34 is silent on any requirement for the service of a written notice of appeal and, thus, the Rules of Civil Procedure govern. N.C.G.S. § 1A-1, Rule 1 (1999); In re Bullabough, 89 N.C. App. 171, 179, 365 S.E.2d 642, 646 (1988) (because a termination of parental rights proceeding is civil in nature, it is governed by the Rules of Civil Procedure unless otherwise provided). The Rules of Civil Procedure provide “every written notice . . . shall be served upon each of the parties.” N.C.G.S. § 1A-1, Rule 5(a) (1999).

Rule 5(b) permits service of discovery requests by mailing them to a party’s last known address and makes service complete when the paper is deposited with the United States Postal Service.

Shwe v. Jaber · filed 2001-11-06(b)

Therefore, defendant’s “last known address” was his employer’s address since that was the address plaintiff used to serve defendant with the summons and complaint, and we hold that the trial court did not err in finding that defendant was properly served with the requests for admissions. See N.C. Gen. Stat. § 1A-1, Rule 5(b) (“[s]ervice by mail shall be complete upon deposit of the pleading or paper enclosed in a post-paid, properly addressed wrapper in a post office or official depository under the exclusive care and custody of the United States Postal Service.”)

Rule 5(b) requires notice accompanying a motion to terminate parental rights to be served on the parent or the parent’s attorney of record.

Orange County Department of Social Services v. Alexander · filed 2003-06-17Rule 5(b)

The General Assembly, through the interlocking provisions of N.C. Gen. Stat. §§ 1A-1, Rule 5(b), 7B-1102, and 7B-1106.1, has enacted three mandates regarding the notice required to accompany a filing of a motion to terminate parental rights, including the provision that the notice “shall be served on the party against whom it is asserted or on the party’s attorney of record.” N.C. Gen. Stat. § 1A-1, Rule 5(b).

Rule 11(a) requires a signer to certify that a pleading, motion, or other paper is factually grounded, legally warranted or supported by a good faith argument, and not filed for an improper purpose.

JIMMY LEWIS CONTRACTING, INC. v. Pearman · filed 2004-12-21(a)

Under Rule 11: the signature of . . . a party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existinglaw or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. N.C. Gen. Stat. § 1A-1, Rule 11(a) (2003).

Rule 5(b) permits service of papers after the complaint by mail or delivery to a party’s attorney or, if the party is unrepresented, to the party.

Dixon v. Hill · filed 2005-11-01Rule 5(b)

Instead, Rule 5(b) specifically permits parties to serve another party by mail or delivery to that party’s attorney or, if unrepresented, to that party.

Rule 5(b) does not make an address supplied by a party the exclusive place for service when the party no longer lives there.

Venters v. Albritton · filed 2007-06-19Rule 5(b)

While defendant provided the address of 1018 E. 5th Street as his address, this was not the exclusive place at which service could be attained, moreover, it was not entirely proper that defendant be served here, as this was not his "last known address" given that he had not lived there in more than three years.

Rule 5(a) requires service of specified papers on every party, and repeated failure to serve a party can require reversal when it deprives that party of a meaningful opportunity to participate.

In Re HDF · filed 2009-06-16Rule 5(a)

Rule 5 of the North Carolina Rules of Civil Procedure requires, [E]very paper relating to discovery required to be served upon a party unless the court otherwise orders, every written motion other than one which may be heard ex parte, and every written notice, appearance, demand, offer of judgment and similar paper shall be served upon each of the parties. . . . N.C. Gen.Stat. § 1A-1, Rule 5(a) (emphasis added). ... Therefore, we reverse the adjudication order and the disposition order as it applies to Gary F. as he was not served with multiple documents regarding his daughter's case on numerous occasions and did not have a meaningful opportunity to participate in the case after his appointed counsel's withdrawal.

Rule 5 permits service of filings on opposing counsel through the North Carolina Business Court’s electronic filing system.

In Re Matter of Special S'holders' Meeting of Phytonix Corp. · filed 2020-01-11

The Court separately determines that, pursuant to Rule 5, utilization of the North Carolina Business Court’s electronic filing system shall constitute proper service of filings on opposing counsel.

Rule 45 requires a subpoena to include the case caption and the name of the party who requested it.

State v. Bowden · filed 1976-10-05Rule 45

Incidentally, this subpoena does not appear to comply with Rule 45, supra, in that neither the caption of the case nor the name of the party who requested the subpoena appears on the subpoena.

Rule 45 subpoenas may issue only in a pending cause and are unavailable before an action is commenced.

In re Superior Court Order Dated April 8, 1983 · filed 1984-08-21Rule 45

Subpoenas are not available by statute until an action has been commenced. G.S. 15A-802; G.S. 1A-1, Rule 45 (may only issue in a pending cause).

Rule 45(c) permits a subpoena duces tecum to compel production of material records in proceedings where testimony is received.

Kilgo v. Wal-Mart Stores, Inc. · filed 2000-07-05(c)

A subpoena duces tecum compels the production of “records, books, papers, documents, or tangible things,” N.C.G.S. § 1A-1, Rule 45(c) (1999), patently material to the inquiry, in the context of “a discovery deposition, hearing, trial, or other proceeding in which testimony is to be received,” 2 G. Gray Wilson, North Carolina Civil Procedure § 45-3, at 98 (2d ed. 1995) [hereinafter 2 North Carolina Civil Procedure]-, Vaughan v. Broadfoot, 267 N.C. 691, 699, 149 S.E.2d 37, 43 (1966).

Rule 9(g) requires special damages to be specifically stated in the pleading.

Ponder v. Budweiser of Asheville, Inc. · filed 1976-07-21(g)

Here plaintiff’s complaint alleges loss of income and earning capacity, but fails to allege properly and specifically the special damages of loss of corporate profits with respect to his tobacco crop and dairy herd. “In personal injury suits loss of profits are recoverable as special damages if properly pleaded as such, if they arise naturally and proximately from the injury, and if they are reasonably definite and certain.” Smith v. Corsat, 260 N.C. 92, 99, 131 S.E. 2d 894 (1963). Also see: G.S. 1A-1, Rule 9(g).

Rule 9(g) permits proof of damages when the complaint specifies physical and mental injuries, inability to work, and medical expenses, and an amendment states the damages amount.

Lee v. Regan · filed 1980-07-15Rule 9(g)

We find no merit to defendant’s contention that these damages were not adequately pled by plaintiff. Plaintiff alleged that he “suffered extensive injuries, great pain of the body and mind, was prevented from transacting his business and incurred expenses for medical attention, hospitalization and damages to his person in an amount not yet determined.” A subsequent amendment alleged damages to be $75,000.00. This is sufficient specific pleading under our Rules of Civil Procedure of these damages for which proof was offered.

Rule 9(g) requires special damages to be specifically pleaded and proved, with facts sufficient to inform the defendant of the scope of the demand.

Gillespie v. Draughn · filed 1981-11-03Rule 9(g)

As stated in Roberts v. Freight Carriers, supra, and as set forth in G.S. 1A-1, Rule 9(g), special damages must be specifically pleaded and proved, and the facts giving rise to the special damages must be sufficient to inform the defendant of the scope of plaintiffs demand.

Rule 9(g) requires each item of special damages and the underlying facts to be pleaded so the defendant knows what damages are sought.

Bishop v. Reinhold · filed 1984-02-07Rule 9(g)

According to G.S. 1A-1, Rule 9(g) of the Rules of Civil Procedure, each item of special damages must be averred. Also, the underlying facts must be alleged so as to inform the defendant of the nature of the damages sought.

In a negligence action exceeding $10,000, the complaint must state that damages exceed $10,000 rather than demand a specific amount; dismissal for violating this rule requires consideration of less drastic sanctions.

Foy v. Hunter · filed 1992-07-07(a)(2)

Although dismissal under Rule 8(a)(2) is within the discretion of the trial court, when the rule is violated such sanction “may not be imposed mechanically.”

Rule 9(f) requires a slander per se claim to be pled and proved with specificity.

Maurer v. Slickedit, Inc. · filed 2005-08-12Rule 9(f)

There is no statement directly attributable to him which would support a finding of slander per se. Such claims must be pled and proved with specificity.

Rule 9(g) requires a complaint seeking special damages to allege facts specific enough to inform the defendant of the scope of the demand.

Edwards v. Holden · filed 2008-08-05Rule 9(g)

Nor does the complaint contain any facts giving rise to special damages sufficient to inform Defendant of the scope of Plaintiffs' demand. N.C. Gen. Stat. § 1A-1, Rule 9(g) (2007). The complaint merely alleges that Plaintiffs "suffered special damages[.]" We conclude that the complaint does not state a claim for relief for libel per quod.

Rule 9(g) requires a plaintiff seeking damages for slander of title to allege facts showing how she suffered special damages.

Hill v. Ewing · filed 2024-08-20Rule 9(g)

Accordingly, it is incumbent on a plaintiff seeking damages for slander of title to allege in her complaint how she suffered special damages. That is, it is not enough simply to allege generally that she was damaged because of the false and malicious statements contained in the deed made regarding her interest in the Property or that she hired an attorney to challenge the false statements.

Rule 9(g) requires a plaintiff seeking damages for slander of title to allege facts showing how she suffered special damages.

Hill v. Ewing · filed 2024-12-03Rule 9(g)

Accordingly, it is incumbent on a plaintiff seeking damages for slander of title to allege in her complaint how she suffered special damages.

Operating losses are special damages that must be pleaded under Rule 9(g).

Rodd v. W. H. King Drug Co. · filed 1976-09-01Rule 9(g)

Operating losses are special damages which must be alleged under G.S. 1A-1, Rule 9(g) and are consequential damages which are recoverable under G.S. 25-2-715(2) if defendant knew or reasonably could have foreseen that the probable result of a malfunctioning color enlarger would be such operating losses.

Rule 8(c) requires an affirmative defense to be pleaded with enough detail to give the parties notice of the defense to be proved.

Hurston v. Hurston · filed 2006-10-17Rule 8(c)

Where all that is required by the statute is to put the parties on notice of the affirmative defense sought to be proved, it is apparent that the averments of defendant pled in her answer sufficiently placed plaintiff on notice that she intended to put forth evidence that he should be estopped from asserting the invalidity of the marriage.

Rule 8(c) requires payment to be pleaded as an affirmative defense.

Critcher v. Ogburn · filed 1976-07-21(c)

Payment is an affirmative defense which must be pled, G.S. 1A-1, Rule 8(c), and “‘the general rule is that the burden of showing payment must be assumed by the party interposing it.’ (Citations omitted.)” Finance Co. v. McDonald, 249 N.C. 72, 105 S.E. 2d 193 (1958).

Rule 7(a) permits a plaintiff to serve a reply alleging last clear chance when the answer alleges contributory negligence.

Vernon v. Crist · filed 1977-01-31Rule 7(a)

When Rule 7(a) as amended is read in conjunction with Rule 8(d), it is evident that some pleading alleging last clear chance is necessary if a plaintiff seeks to prove the avoidance at trial because Rule 8(d) only deems affirmative defenses appearing in the answer as denied or avoided if a responsive pleading is neither required nor permitted.

Rule 8(c) treats laches as an affirmative defense that the asserting party must prove, and Rule 49(c) permits the judge to determine an issue of fact when no timely demand is made for submission to the jury.

Streeter v. Streeter · filed 1977-07-20Rule 8(c); Rule 49(c)

Laches is an affirmative defense, G.S. 1A-1, Rule 8(c), which in this case was plaintiff’s burden to prove. ... Under G.S. 1A-1, Rule 49(c), absent a timely demand made before the jury retires that an issue of fact raised by the pleadings or by the evidence be submitted to the jury, the judge may make a finding or if he fails to do so, he shall be deemed to have made a finding in accord with the judgment entered.

Rule 8(c) requires affirmative defenses to be specially pleaded and bars presenting them for the first time on appeal.

Sanders v. Walker · filed 1979-01-02(c)

The Statute of Frauds is an affirmative defense which must be specially pleaded, G.S. 1A-1, Rule 8(c), and it was neither pleaded nor raised at trial. It cannot be presented for the first time on appeal.

Rule 8(c) requires a defendant to plead contributory negligence and assumption of risk before relying on those defenses in a motion for directed verdict or requesting jury instructions on them.

Lee v. Capitol Tire Co., Inc. · filed 1979-03-06Rule 8(c)

Furthermore, we note that defendant did not plead the affirmative defenses of contributory negligence and assumption of the risk as required by G.S. 1A-1, Rule 8(c). Consequently, defendant is not entitled to that defense upon a motion for directed verdict, nor was it entitled to instructions regarding the issues of contributory negligence or assumption of risk.

Rule 8(c) requires an affirmative defense to be pleaded with enough particularity to give the court and parties notice of the matters to be proved.

Angel v. Ward · filed 1979-10-16Rule 8(c)

All that G.S. 1A-1, Rule 8(c), of the Rules of Civil Procedure requires is that the pleading of an affirmative defense contain “a short and plain statement of any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved.” ... We hold that the appellees have properly alleged the affirmative defenses of absolute and qualified privilege.

Rule 8(c) requires laches to be pleaded as an affirmative defense.

Young v. Young · filed 1979-11-06Rule 8(c)

Laches is an affirmative defense which must be pleaded, G.S. 1A-1, Rule 8(c), and the party pleading it bears the burden of proof.

Rule 8(c) identifies injury by fellow servant as an affirmative defense.

Thornton v. Thornton · filed 1980-02-05Rule 8(c)

Moreover, our rules of civil procedure provide that “injury by fellow servant” constitutes an affirmative defense. G.S. § 1A-1, Rule 8(c).

Rule 8(c) requires a party to plead illegality as an affirmative defense.

Hazard v. Hazard · filed 1980-04-15Rule 8(c)

It does not appear that defendant’s illegal contract argument is properly before this Court on appeal because illegality was not pled as an affirmative defense, G.S. 1A-1, Rule 8(c), and there was no exception to the conclusion of the trial court that “[a]s between the parties [the judgment] was a contract. . . Rule 10(a), N.C. Rules of Appellate Procedure.

Rule 8(c) makes failure of consideration an affirmative defense on which defendants bear the burden of proof.

First Peoples Savings & Loan Ass'n v. Cogdell · filed 1980-01-08Rule 8(c)

Failure of consideration is an affirmative defense, G.S. 1A-1, Rule 8(c), upon which defendants bear the burden of proof.

Rule 8(c) requires a defendant to plead the Statute of Frauds as an affirmative defense; failure to do so waives the defense.

Danjee, Inc. v. Addressograph Multigraph Corp. · filed 1980-02-05Rule 8(c)

Defendant did not plead any affirmative defenses as required by G.S. 1A-1, Rule 8(c), of the Rules of Civil Procedure, which includes the Statute of Frauds. We hold that defendant waived any and all benefits it may have had pursuant to G.S. 25-2-201(1).

Rule 8(c) allows an unpled affirmative defense to be heard on summary judgment when both parties are aware of the defense.

Dickens v. Puryear · filed 1980-03-18Rule 8(c)

Unpled affirmative defenses may be heard for the first time on motion for summary judgment even though not asserted in the answer at least where both parties are aware of the defense.

Rule 8(c) requires estoppel to be pleaded affirmatively only in a responsive pleading; a plaintiff need not anticipate in the complaint a defense first raised in the answer.

Meachan v. Montgomery County Board of Education · filed 1980-06-17Rule 8(c); Rule 7

Although G.S. 1A-1, Rule 8(c) requires that a party affirmatively plead estoppel, that rule applies only to responsive pleadings. Plaintiff clearly was not required to allege estoppel in her complaint when the answer raising the defense that her acceptance of retirement benefits terminated her career status had not yet even been filed, and under G.S. 1A-1, Rule 7, she was precluded from alleging it in a responsive plea to that answer.

Rule 8(c) requires defendants to plead failure of consideration and the statute of frauds affirmatively in their answer or waive those defenses.

Smith v. Hudson · filed 1980-08-19Rule 8(c)

At the outset we note that defendants failed to plead affirmatively in their answer the defenses of failure of consideration and the statute of frauds as required by N. C. Gen. Stat. § 1A-1, Rule 8(c), and they thereby waive their right to assert these defenses.

Failure of consideration is an affirmative defense that must be pleaded; an unpleaded defense does not warrant jury consideration when the evidence provides no basis for it.

Deal v. Christenbury · filed 1981-02-17Rule 8(c)

We note at the outset that failure of consideration is an affirmative defense which must be pleaded in responding to a preceding pleading. G.S. 1A-1, Rule 8(c). The answer filed by defendants contains no pleading of this defense. Defendants nevertheless contend that the record contains evidence “relating to the defense,” and that the issue thus should be treated as though it “had been raised in the pleadings” pursuant to Rule 15(b). We find no basis in the evidence for a defense of lack of consideration as to defendant-wife, and we thus uphold the trial court’s decisions to which error is assigned.

Rule 8(c) treats a defense that introduces new matter to avoid a counterclaim as an affirmative defense.

Roberts v. Heffner · filed 1981-05-05Rule 8(c)

A defense which introduces new matter in an attempt to avoid defendant’s counterclaim, regardless of the truth or falsity of the allegations in the counterclaim, is an affirmative defense. N.C. Gen. Stat. § 1A-1, Rule 8(c).

Rule 8(c) treats failure of consideration as an affirmative defense that a defendant must raise in the pleadings or at trial to present it on appeal.

Delp v. Delp · filed 1981-07-07Rule 8(c)

Failure of consideration is an affirmative defense. N.C. Gen. Stat. § 1A-1, Rule 8(c). Where a defendant does not raise an affirmative defense in his pleadings or in the trial, he cannot present it on appeal.

Rule 8(c)'s requirement to plead an affirmative defense does not apply when a plaintiff states a claim and introduces a prior judgment to prove an allegation in it.

Patterson v. Phillips · filed 1981-09-15Rule 8(c)

The difficulty with the defendant’s argument is that the plaintiff was stating a claim and she was not pleading a defense. The plaintiff in her pleadings stated that the defendant was the father of the minors. She was entitled to show this by introducing the documents from the Circuit Court of Monroe County which established it conclusively.

Rule 8(c) classifies laches as an affirmative defense.

Larsen v. Sedberry · filed 1981-10-06Rule 8(c)

Laches is an affirmative defense under our statute, G.S. 1A-1, Rule 8(c).

An adverse-possession defense cannot be asserted on appeal if it was neither pleaded nor raised at trial.

Whichard v. Oliver · filed 1982-03-02Rule 8(c)

Adverse possession was not pleaded as a defense nor was the issue raised at trial, and therefore defendants cannot assert this defense on appeal.

An affirmative defense omitted from the pleadings may be raised by affidavit in opposition to summary judgment, although a formal amendment is preferred.

Loman-Garrett Supply Co., Inc. v. Dudney · filed 1982-04-06Rule 8(c)

Defendant having raised his defense of failure of consideration in his affidavit, we hold that his failure to plead the defense was not fatal even though the preferred practice is to require a formal amendment to the pleadings.

Rule 12(b) requires a landowner in a condemnation proceeding to raise a claimed violation of the Environmental Policy Act or its regulations as a defense in the responsive pleading.

State v. Williams and Hessee · filed 1981-09-15Rule 12(b)

We know of no reason why a landowner party in a condemnation proceeding should not be required to assert a violation of the Environmental Policy Act, or rules and regulations adopted pursuant thereto, as a defense in his responsive pleading as required by G.S. 1A-1, Rule 12(b).

Rule 8(c) requires an affirmative defense to be raised in the pleadings before the jury is instructed on it.

Federal Realty Investment Trust v. Belk-Tyler of Elizabeth City, Inc. · filed 1982-03-16Rule 8(c)

However, the term it used was “waiver,” a related, but unquestionably distinguishable defense not raised by the pleadings. We hold, therefore, that the court’s instruction was inconsistent with the pleadings in violation of G.S. 1A-1, Rule 8(c).

Failure to be properly licensed is an affirmative defense that ordinarily must be specifically pleaded.

Barrett, Robert & Woods, Inc. v. Armi · filed 1982-10-19Rule 8(c)

Failure to be properly licensed is an affirmative defense which ordinarily must be specifically pleaded.

Under the Rules of Civil Procedure, an affirmative defense raised at a summary judgment hearing may be treated as part of the pleadings even if it was not pleaded in the answer.

C. C. Walker Grading & Hauling, Inc. v. S. R. F. Management Corp. · filed 1984-01-17Rule 8(c)

Failure to be properly licensed is an affirmative defense which normally must be specifically pleaded. G.S. 1A-1, Rule 8(c). However, “the nature of summary judgment procedure (G.S. 1A-1, Rule 56), coupled with our generally liberal rules relating to amendment of pleadings, require that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on motion for summary judgment.” ... The trial judge properly allowed defendant’s amendment to her answer to include the licensing defense.

An affirmative defense must be specially pleaded, but the parties may also try it by express or implied consent; an unpleaded and untried defense cannot be raised on appeal.

Nationwide Mutual Insurance v. Edwards · filed 1984-03-06Rule 8(c); Rule 15(b)

Estoppel is an affirmative defense which must be specially pleaded. G.S. 1A-1, Rule 8(c); Stuart v. Insurance Co., 18 N.C.App. 518, 522,197 S.E.2d 250, 253 (1973). Failure to plead an affirmative defense ordinarily results in waiver thereof. Smith v. Hudson, 48 N.C.App. 347, 352, 269 S.E.2d 172, 176 (1980). The parties may, however, still try the issue by express or implied consent. G.S. 1A-1, Rule 15(b). Defendant-administratrix neither pled nor tried the case on this theory. She thus cannot now present it on appeal.

Rule 8(c) requires a party to plead waiver as an affirmative defense; a party that fails to do so may not raise it for the first time on appeal.

Starling v. Sproles · filed 1984-07-17Rule 8(c)

G.S. 1A-1, Rule 8(c) provides that “[i]n a pleading to a preceding pleading, a party shall set forth affirmatively . . . estoppel . . . waiver, and any other matter constituting an avoidance or affirmative defense.” This defendants have failed to do, and they may not raise the issue for the first time on appeal.

Rule 8(c) requires laches and equitable estoppel to be pleaded as affirmative defenses; they cannot be raised for the first time on appeal.

Wake County ex rel. Denning v. Ferrell · filed 1984-11-06Rule 8(c)

The doctrines of laches and equitable estoppel are affirmative defenses that must be set forth in the pleadings at trial. G.S. 1A-1, Rule 8(c), Rules of Civil Procedure. We have fully reviewed the record and fail to find any evidence that the defenses were raised in the pleadings or presented at trial. The issues may not now be raised for the first time on appeal.

Rule 8(c) requires waiver and estoppel to be pleaded as affirmative defenses.

Hawkins v. State Capital Insurance · filed 1985-05-07Rule 8(c)

Waiver and estoppel must be pleaded as affirmative defenses. G.S. 1A-1, Rule 8(c).

Rule 8(c) requires a defendant to plead laches specifically in the answer; failure to do so waives the defense.

Bertie-Hertford Child Support Enforcement Agency Ex Rel. Souza v. Barnes · filed 1986-05-06Rule 8(c)

Laches is an affirmative defense which must be specifically pleaded by answer. N.C. Gen. Stat. § 1A-1, Rule 8(c) of the Rules of Civil Procedure. Defendant failed to plead this defense and has therefore waived it.

Rule 8(c) requires a defendant to plead the statute of limitations and laches as affirmative defenses; unpleaded defenses cannot be raised for the first time on appeal.

Adkins v. Adkins · filed 1986-08-05Rule 8(c)

However, the statute of limitations, as well as the equitable defense of laches, are affirmative defenses which defendant must specifically plead. G.S. 1A-1, Rule 8(c). Defendant failed to plead these affirmative defenses and they cannot be raised for the first time on appeal.

Rule 8(c) requires equitable estoppel to be specifically pleaded as an affirmative defense; a party that neither pleads nor tries that theory cannot raise it for the first time on appeal.

MCB LTD. v. McGowan · filed 1987-08-18Rule 8(c)

Equitable estoppel, however, is an affirmative defense, which must ... be specifically pled to be properly before a trial court. ... In the present case, plaintiff neither pled nor tried the case on this theory, and thus cannot now present it on appeal.

Rule 8(c) requires contributory negligence to be pleaded as an affirmative defense, but the parties may try the unpleaded issue by implied consent.

Alston v. Monk · filed 1988-11-15Rule 8(c)

Here defendants failed to properly plead contributory negligence as an affirmative defense. G.S. 1A-1, Rule 8(c). This failure would ordinarily result in a waiver of the defense, but we have held that the parties may still try the unpleaded issue by implied consent. Nationwide Mut. Insur. Co. v. Edwards, 67 N.C.App. 1, 312 S.E.2d 656 (1984). Since there was no objection when the trial court submitted the issue of contributory negligence to the jury, we hold that contributory negligence was tried by the implied consent of the parties.

Rule 8(c) requires a party to affirmatively plead defenses of undue influence, duress, fraud, unconscionability, and inadequate disclosure.

Howell v. Landry · filed 1989-12-19Rule 8(c)

As the defenses of undue influence, duress, fraud, unconscionability and inadequate disclosure are all affirmative in nature, they must be affirmatively pled.

Rule 8(c) requires a defendant to plead contributory negligence as an affirmative defense; failure to do so bars raising it on appeal.

Forbes v. Par Ten Group, Inc. · filed 1990-08-07Rule 8(c)

However, defendants’ failure to plead plaintiffs’ contributory negligence in this case is a bar to this issue being raised on appeal. N.C.G.S. § 1A-1, Rule 8(c) (1983) (contributory negligence is an affirmative defense which must be pled).

An affirmative defense may be raised at summary judgment despite its omission from the answer if the plaintiff suffers no prejudice.

County of Rutherford Ex Rel. Its Child Support Enforcement Agency Ex Rel. Hedrick v. Whitener · filed 1990-08-07Rule 8(c)

To avoid a decision based on a pleading technicality, we now hold that “absent prejudice ... to plaintiff, an affirmative defense may be raised by a motion for summary judgment regardless of whether it was pleaded in the answer or not.”

Rule 8(c) requires affirmative defenses to be stated sufficiently particularly to give the court and parties notice.

Bonestell v. North Topsail Shores Condominiums, Inc. · filed 1991-06-18Rule 8(c)

We hold that Nationwide gave plaintiffs adequate notice of its limitations defense. Because Nationwide did not “surprise” plaintiffs with the limitations defense at the summary judgment hearing, Nationwide’s failure to plead N.C.G.S. § 1-52(16) by precise number and subsection is not fatal under N.C.G.S. § 1A-1, Rule 8(c). Rule 8(c) requires that a statute of limitations defense be set forth affirmatively. Rule 8(c) also adopts the “notice” approach to pleadings, used throughout the Rules of Civil Procedure. “[An answer] shall contain a short and plain statement of any matter constituting an . . . affirmative defense sufficiently particular to give the court and the parties notice of the transactions ... intended to be proved.” N.C.G.S. § 1A-1, Rule 8(c) (1983).

Rule 8(c) treats an affirmative defense as new matter asserted to avoid the opposing party's claim even if that party proves its allegations.

Swanson v. State · filed 1991-08-14(c)

An affirmative defense normally consists of new matter which the pleader contends will avoid the adverse party's claim regardless of whether the facts alleged by the adverse party may be proved. N.C.G.S. § 1A-1, Rule 8(c) (1990).

Rule 8(c) requires a party to plead an affirmative defense sufficiently to give the court and the parties notice of the matters intended to be proved.

Parrish Funeral Home, Inc. v. Pittman · filed 1991-10-15(c)

Plaintiff, however, argues that because defendants did not specifically plead the affirmative defense of the Statute of Frauds as required by N.C. Gen. Stat. § 1A-1, Rule 8(c), it should not now be available as a defense to the contract. We agree.

Rule 8(c) requires affirmative defenses to be pleaded, and failure to plead one waives it.

Mulberry-Fairplains Water Ass'n, Inc. v. Town of North Wilkesboro · filed 1992-02-048(c)

However, this defense must be affirmatively pled. N.C. Gen. Stat. § 1A-1, Rule 8(c) (1990). Failure to plead an affirmative defense constitutes a waiver of that defense.

The Rules of Civil Procedure require an affirmative defense based on a prior pending action to be stated in the answer or raised in a timely pre-answer motion, or the defense is waived.

Brooks v. Brooks · filed 1992-07-218(c)

Furthermore, the defense is an affirmative defense and Rule 8(c) requires that such defenses be affirmatively set forth in the answer. N.C.G.S. § 1A-1, Rule 8(c) (1990); Clark, 326 N.C. at 20, 387 S.E.2d at 171. Therefore, a plea in abatement based on a prior pending action must be raised either in a pre-answer motion or set forth affirmatively in the answer. N.C.G.S. § 1A-1, Rule 12(h)(1) (1990); Clark, 326 N.C. at 20, 387 S.E.2d at 171. The failure to raise the defense in this manner constitutes a waiver of the defense.

Rule 8(c) requires an affirmative defense such as the statute of limitations to be pleaded in a responsive pleading.

Miller v. Talton · filed 1993-11-02Rule 8(c)

It is true that the statute of limitations is an affirmative defense required by G.S. § 1A-1, Rule 8(c) to be set forth affirmatively in a responsive pleading.

Rule 8(c) requires affirmative defenses to be pleaded.

Green v. Harbour · filed 1994-01-04Rule 8(c)

Defendants’ motion to dismiss asserted the statute of frauds, an affirmative defense which must be pleaded. ... N.C. Gen. Stat. § 1A-1, Rule 8(c) (1990).

Rule 8(c) requires a defendant to plead any matter constituting an avoidance or affirmative defense.

Burwell v. Giant Genie Corp. · filed 1994-08-02(c)

Qualified immunity is an affirmative defense that must be pleaded by the defendant. ... see G.S. 1A-1, Rule 8(c) (defendant must plead “any matter constituting an avoidance or affirmative defense”).

Rule 8(c) requires an affirmative defense to be raised below before it may be raised on appeal.

Haywood Street Redevelopment Corp., Inc. v. Harry S. Peterson, Co. · filed 1995-11-21Rule 8(c)

This Court has held that an affirmative defense, under N.C. Gen. Stat. § 1A-1, Rule 8(c), must be plead before it reaches this Court, or it will not be allowed.

Rule 12(h)(1) does not bar an amended answer asserting sovereign immunity as a defense to recovery rather than as a challenge to personal jurisdiction.

Mullis v. Sechrest · filed 1997-05-06Rule 12(h)(1)

Here, defendants amended their answer to plead sovereign immunity as a defense "pleaded in bar of any recovery by the plaintiffs," not as a challenge to the court's personal jurisdiction over the defendants. Accordingly, and because this Court has previously characterized sovereign immunity as an affirmative defense, for the purposes of this appeal we treat defendants' amended answer as raising sovereign immunity as an affirmative defense. The trial court did not err in allowing defendants to amend their answer.

Rule 8 does not require a defendant to specifically plead an open, fair, and honest rebuttal to a presumption of fraud; a denial suffices.

ESTATE OF SMITH, BY & THROUGH SMITH v. Underwood · filed 1997-08-05Rule 8(b) and (c)

Since it is not an avoidance or an affirmative defense, it need not be specifically pleaded in the answer.

Rule 8(c) requires ratification to be pleaded as an affirmative defense; a party that raises it in neither an answer nor a summary judgment motion cannot raise it on appeal.

Robinson v. Powell · filed 1998-07-09Rule 8(c)

Pursuant to the North Carolina Rules of Civil Procedure, a party shall affirmatively set forth any matter constituting an avoidance or affirmative defense. N.C.G.S. § 1A-1, Rule 8(c) (1990). Ratification is an affirmative defense which must be affirmatively pled.

Rule 8(c) requires a party to plead estoppel and other matters constituting an avoidance or affirmative defense.

State Ex Rel. Easley v. Rich Food Services, Inc. · filed 2000-08-29Rule 8(c)

Although defendants now attempt to raise the defense of estoppel in their brief to this Court, they did not plead estoppel as an affirmative defense in their answer, as required by our Rules of Civil Procedure. Rule 8(c) provides in pertinent part that “[i]n pleading to a preceding pleading, a party shall set forth affirmatively ... estop-pel . . . and any other matter constituting an avoidance or affirmative defense.” N.C. Gen. Stat. § 1A-1, Rule 8(c) (1999).

Rule 8(c) does not require a party to plead arbitration as an affirmative defense to preserve the contractual right to arbitrate.

Smith v. Young Moving & Storage, Inc. · filed 2000-12-29Rule 8(c)

Plaintiff next argues that defendant waived arbitration by not pleading it as an affirmative defense pursuant to N.C. Gen. Stat. § 1A-1, Rule 8(c) (1999). However, our Supreme Court has held that the mere filing of pleadings does not manifest waiver of a contractual right to arbitrate. ... Consequently, defendant has not waived arbitration.

Rule 8(c) requires affirmative defenses, such as official immunity, to be pleaded.

Mabrey v. Smith · filed 2001-06-05(c)

Official immunity is an affirmative defense that must be alleged in order to receive its protection.

Rule 8(c) requires an affirmative defense to be pleaded and proved by the defendant.

Pharr v. Beck · filed 2001-11-20Rule 8(c)

A Defendant’s ignorance of the existence of the marriage is in the nature of an affirmative defense and must be pled and proven by the defendant. See N.C.G.S. § 1A-1, Rule 8(c) (1999).

Rule 8(c) requires an affirmative defense to give the court and parties sufficient notice of the conduct on which it rests.

Medearis v. Trustees of Myers Park Baptist Church · filed 2001-12-28Rule 8(c)

Rule 8(c) of the North Carolina Rules of Civil Procedure requires that pleadings contain short, plain, statements of “any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved.” ... We find these affirmative defenses sufficient to meet the pleading requirements of Rule 8(c).

Rule 8(c) requires a defendant to plead waiver as an affirmative defense.

Sidden v. Mailman · filed 2002-05-21(c)

We are cognizant of the fact that defendant never pled waiver as an affirmative defense as required by N.C. Gen.Stat. § 1A-1, Rule 8(c) (2001).

Rule 8(c) makes contract illegality an affirmative defense that the party asserting it must prove.

Orthodontic Centers of America, Inc. v. Hanachi · filed 2002-06-18Rule 8(c)

That instruction was erroneous as the contract was presumed to be legal and the illegality of the contract was an affirmative defense, which Defendants had the burden of proving.

Rule 8(c) requires a party to plead any matter constituting an avoidance or affirmative defense, and failure to do so generally waives the defense.

Purchase Nursery, Inc. v. Edgerton · filed 2002-09-17Rule 8(c)

The North Carolina Rules of Civil Procedure require that a party shall affirmatively set forth any matter constituting an avoidance or affirmative defense. N.C.G.S. § 1A-1, Rule 8(c). “Failure to raise an affirmative defense in the pleadings generally results in a waiver thereof.”

Rule 8(c)'s notice requirement for an affirmative immunity defense is satisfied when the answer pleads immunity and the defendant identifies the specific statutory immunity in its summary judgment motion and hearing.

Luhmann v. Hoenig · filed 2003-12-02Rule 8(c)

Here, defendants' answer asserted as the fourth defense "sovereign, governmental, and qualified immunity." Defendants asserted the immunity found in N.C. Gen.Stat. § 58-82-5 in their motion for summary judgment and at the hearing on the motion. ... Plaintiff was provided ample notice that defendants would assert this defense as required by N.C.R. Civ. P. 8(c).

Rule 8(c) requires a party to plead affirmative defenses in its answer; failure to do so waives the defense.

Oakwood Acceptance Corp., LLC v. Massengill · filed 2004-01-20Rule 8(c)

Rule 8(c) of the North Carolina Rules of Civil Procedure requires that a party specifically set forth in its answer any affirmative defenses. N.C. Gen. Stat. § 1A-1, Rule 8(c) (2003). ... Rainbow failed to allege in its answer that it was a good faith purchaser for value. It has, therefore, waived that defense.

Rule 8(c) requires a party to plead an affirmative defense or waive it.

HSI North Carolina, LLC v. Diversified Fire Protection of Wilmington, Inc. · filed 2005-04-19Rule 8(c)

The North Carolina Rules of Civil Procedure require a party to affirmatively set forth any matter constituting an avoidance or affirmative defense, N.C. Gen. Stat. § § 1A-1, Rule 8(c) (2003), and our courts have held the failure to dó so creates a waiver of the defense.

Rule 8(c) does not require a defendant to specially plead a statute of repose because it is not an affirmative defense.

Whittaker v. Todd · filed 2006-02-21Rule 8(c)

Thus, the statute of repose is not an affirmative defense and defendant was not required to specially plead it.

Rule 8(c) requires affirmative defenses to be pleaded, but a defendant does not waive an unpleaded defense on appeal from small claims court when the district court proceeds on the existing pleadings.

Don Setliff & Associates, Inc. v. Subway Real Estate Corp. · filed 2006-07-05Rule 8(c)

While Rule 8(c) does require affirmative defenses to be pled for cases arising in the superior or district courts, section 7A-218 allows for general denials for cases arising in small claims court. Section 7A-229 then gives discretion to the trial court whether, upon appeal to the district court for a trial de novo, to allow more pleadings beyond those filed in small claims court or to proceed in district court on the existing pleadings. However, a defendant has not waived an affirmative defense because the trial court, in its discretion, did not allow for further pleadings upon appeal to the district court.

Rule 8(c) requires a party to plead estoppel in a responsive pleading; otherwise, the defense is waived on appeal.

West Durham Lumber Company v. Meadows · filed 2006-09-05Rule 8(c)

Estoppel is an affirmative defense that must be pled in a responsive pleading. N.C. Gen. Stat. § 1A-1, Rule 8(c) (2005). Defendants failed to plead estoppel in their answer or amended answer. Therefore, defendant waived the affirmative defense of estoppel and may not assert estoppel on appeal.

Rule 8(c) requires estoppel and res judicata to be pleaded as affirmative defenses; raising them for the first time on appeal does not preserve them.

In Re DRS · filed 2007-01-02Rule 8(c)

However, respondent raises the defenses of collateral estoppel and res judicata for the first time on appeal, and thus failed to properly preserve the issue. N.C. Gen.Stat. § 1A-1, Rule 8(c) (2005) provides in pertinent part that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . estoppel, . . . res judicata, . . . and any other matter constituting an avoidance or affirmative defense."

Rule 8(c) treats choice-of-law federal preemption as an affirmative defense that must be raised in a responsive pleading or may be waived.

Richardson v. Bank of America, N.A. · filed 2007-04-17Rule 8(c)

Accordingly, we hold that the issue regarding federal preemption raised by Defendants was an affirmative defense.

Rule 8(c) requires affirmative defenses to be pleaded, but an unpleaded defense raised by the evidence may be considered at summary judgment.

Williams v. HomEq Servicing Corp. · filed 2007-07-03Rule 8(c)

We turn first to the question of whether a failure to raise the exemption in the pleading bars HomEq from raising the exemption at a hearing for summary judgment. We hold it does not. The North Carolina Rules of Civil Procedure Rule 8(c) requires "any matter constituting an avoidance or affirmative defense" should be set forth in the pleadings.

Rule 7(a) allows a plaintiff to request permission to reply to affirmative defenses when a reply is needed.

Carolina Bank v. Chatham Station, Inc. · filed 2007-10-16Rule 7(a)

However, if plaintiff believed a reply was necessary, plaintiff could have filed a motion pursuant to N.C. Gen. Stat. § 1A-1, Rule 7(a), requesting permission to file a reply, but plaintiff did not file such a motion. Thus plaintiff’s argument that Rule 7(a) has a “somewhat peculiar feature” which makes it impossible for the plaintiff to respond to defendants’ alleged affirmative defenses is incorrect.

Rule 8(c) does not require a plaintiff to plead a property contract as an affirmative defense in an equitable distribution action when the contract is evidence and the defendant has brought no counterclaim.

Street v. Street · filed 2008-08-05Rule 8(c)

First, the contract governing property is not an affirmative defense; rather, it is a piece of evidence to be considered in settling the action for equitable distribution. Second, and more important, no counterclaim was brought by defendant to which an affirmative defense would need to be made.

Rule 8(c) requires a party to raise res judicata and collateral estoppel as affirmative defenses; a party that neither pleads nor tries them cannot raise them for the first time on appeal.

In the Matter of Cag · filed 2009-05-19Rule 8(c)

Furthermore, pursuant to Rule 8(c) of the North Carolina Rules of Civil Procedure, "[i]n pleading to a preceding pleading, a party shall set forth affirmatively . . . estoppel, . . . res judicata, . . . and any other matter constituting an avoidance or affirmative defense." ... In this case, as Respondent neither pled nor defended the case on these theories, Respondent cannot raise them for the first time now on appeal.

Rule 8(c) requires a defendant to plead failure of consideration affirmatively or waive that defense.

AUGUSTA HOMES, INC. v. Feuerstein · filed 2009-08-18Rule 8(c)

However, "[D]efendants failed to plead affirmatively in their answer the defense[] of failure of consideration . . . as required by N.C. Gen. Stat. § 1A-1, Rule 8(c), and they thereby waive their right to assert [this] defense[]."

Rule 8(c) allows an unpleaded affirmative defense to be raised in a summary judgment motion when the motion gives the opposing party notice and there is no prejudice.

Barfield v. North Carolina Department of Crime Control & Public Safety · filed 2010-01-19Rule 8(c)

In the present case, defendant failed to raise the issue of collateral estoppel in its pleadings; however, defendant argued the issue in its motion for summary judgment and at the summary judgment hearing. Accordingly, we find that the issue was before the Commission and plaintiff was made aware of the defense by defendant’s motion for summary judgment prior to the hearing.

A defendant who raises a statute-of-limitations defense need not identify the precise statute to place the burden of showing timeliness on the plaintiff.

Amward Homes, Inc. v. Town of Cary · filed 2010-08-03Rule 8(c)

A defendant’s failure to raise the precise General Statute prescribing the time period for the statute of limitations does not alleviate a plaintiff’s burden on this issue.

Rule 8(c) permits an affirmative defense to be pleaded through a statement that gives the opposing party sufficient notice of its basis.

M Series Rebuild, LLC v. Town of Mount Pleasant · filed 2012-08-07Rule 8(c)

Given our Courts’ holdings in Whitfield and Data General regarding waiver of sovereign immunity based on a valid contract and the requirements of N.C. Gen. Stat. § 159-28, as discussed above, we hold that defendant’s “fourth defense” gave plaintiff sufficient notice that defendant was asserting plaintiff’s failure to comply with the requirements of N.C. Gen. Stat. § 159-28(a), and thus the defense of sovereign immunity as it exists in the context of plaintiff’s allegations.

Rule 8(c) requires a party to plead an affirmative defense with sufficient notice; failure to plead it waives the defense.

Piazza v. Kirkbride · filed 2016-04-05Rule 8(c)

Therefore, even if the defense were available, which it is not, he waived the Safe Harbor affirmative defense. Due to the notice requirement of Rule 8(c), it would offend equity to grant Brannon this waived affirmative defense.

A sovereign immunity defense generally must be raised in the defendant’s answer or by motion; merely alluding to it at a hearing does not preserve it.

The News & Observer Publ'g Co. v. McCrory · filed 2016-12-20Rule 8(c)

In sum, precedent reveals that the affirmative defense of sovereign immunity must generally be raised in a defendant’s answer or by motion, and the circumstances here do not fall into any of the narrow exceptions to that rule permitted in the cases cited by the Administration.

Rule 8(c) requires a party to plead lack of notice of a foreclosure proceeding as an affirmative defense.

Home Realty Co. & Ins. Agency, Inc. v. Red Fox Country Club Owners Ass'n · filed 2020-11-17Rule 8(c)

Accordingly, Defendants’ use of N.C. Gen. Stat. § 45-21.16 falls within the purview of North Carolina Rule of Civil Procedure 8(c) and must be affirmatively pled.

Rule 8(c) requires a defendant to plead res judicata as an affirmative defense; if the defendant does not raise it in the responsive pleading, the claim may proceed.

Fish v. Stetina · filed 2025-02-19Rule 8(c)

But Defendant did not assert the affirmative defense of claim preclusion, otherwise known as res judicata, in his responsive pleading to Plaintiff’s new complaint. See Smith v. Polsky, 251 N.C. App. 589, 595, 796 S.E.2d 354, 359 (2017) (“[A] voluntary dismissal with prejudice is, by operation of law, a final judgment on the merits implicating the doctrine of res judicata.”); Cnty. of Rutherford By & Through Child Support Enf’t Agency ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 73, 394 S.E.2d 263, 264 (1990) (“[R]es judicata is an affirmative defense and must be set forth affirmatively in the pleadings.”); see also N.C. Gen. Stat. § 1A-1, Rule 8(c) (2023). Thus, Plaintiff’s alienation of affection claim properly proceeded to trial.

Rule 6(d) and (e) govern motion notice, and Rule 56 permits summary judgment when no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law.

Barnes v. Barnes · filed 1976-07-21Rule 6(d) and (e); Rule 56

Defendant contends the trial court erred in hearing plaintiff’s motions during the 29 September 1975 session for the reason that defendant was not given notice as required by G.S. 1A-1, Rule 6(d) and (e). This contention has no merit. ... Defendant’s contention that Judge Browning erred in granting plaintiff’s motions for summary judgment likewise has no merit. Summary judgment was appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, showed that there was no genuine issue as to any material fact and that plaintiff was entitled to judgment as a matter of law. G.S. 1A-1, Rule 56. ... We hold that summary judgment in favor of plaintiff was proper.

Rule 56(a) requires waiting 30 days after a counterclaim commences the action before filing a summary judgment motion on it.

High Point Bank v. Morgan-Schultheiss, Inc. · filed 1977-06-15(a)

The motion obviously related only to plaintiff’s action, because under G.S. 1A-1, Rule 56(a), motion for summary judgment on the counterclaims could not have been validly filed until after the expiration of 30 days from the “commencement of the action” asserted by the counterclaims.

Rule 56(a) permits a claimant to move for summary judgment more than 30 days after the action begins, even before the opposing party’s time to answer expires.

Kavanau Real Estate Trust v. Debnam · filed 1979-05-15Rule 56(a)

Plaintiff was acting within the guidelines of G.S. 1A-1, Rule 56(a), in filing the motion for summary judgment nearly two months after commencement of the action and one month after defendants’ motion to dismiss.

Rules 56(a) and (c) permit a summary judgment motion without supporting affidavits and allow the court to consider pleadings, which Rule 11(a) generally does not require to be verified.

Beverly v. Beverly · filed 1979-09-18Rule 56(a), Rule 56(c), Rule 11(a)

However, G.S. 1A-1, Rule 56(c) provides that pleadings may be considered on a motion for summary judgment, and G.S. 1A-1, Rule 11(a) indicates that as a general rule, pleadings need not be verified. Furthermore, G.S. 1A-1, Rule 56(a) provides that a party may move “with or without supporting affidavits” for a summary judgment. Plaintiff complied with the requirements for a summary judgment motion.

Rule 56(c)’s ten-day notice requirement for a summary judgment hearing may be waived by participating without objecting to the lack of notice or requesting more time.

Westover Products, Inc. v. Gateway Roofing, Inc. · filed 1989-06-06Rule 56(c)

Rule 56(c) provides that a motion for summary judgment shall be served at least ten (10) days prior to any hearing on the motion. N.C.G.S. § 1A-1, Rule 56(c). Notice may be waived, however, by participation in the hearing and by a failure to object to the lack of notice or failure to request additional time by the non-moving party. ... We conclude that although no notice under Rule 56(c) was given to Kidde, it waived the notice requirement.

A second summary judgment motion is appropriate only if it presents legal issues different from those raised in the earlier motion.

Huffaker v. Holley · filed 1993-09-07Rule 56(c)

In ruling on a motion for summary judgment, the court must decide as a matter of law whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law, N.C. Gen. Stat. § 1A-1, Rule 56(c) (1990), and such ruling is determinative as to the issue presented. ... There may be more than one motion for summary judgment in a lawsuit, but the second motion will .be appropriate only if it presents legal issues that are different from those raised in the earlier motion.