Dickens v. Puryear

Decision Date07 April 1981
Docket NumberNo. 86,86
PartiesJohn Robert DICKENS v. Earl V. PURYEAR and Ann Brewer Puryear.
CourtNorth Carolina Supreme Court

Ransdell, Ransdell & Cline by William G. Ransdell, Jr., Phillip C. Ransdell, and James E. Cline, Raleigh, for plaintiff-appellant.

Ragsdale & Liggett by George R. Ragsdale and Peter M. Foley, Raleigh, for defendant-appellee Earl V. Puryear.

Manning, Fulton & Skinner by Howard E. Manning and Michael T. Medford, Raleigh, for defendant-appellee Ann Brewer Puryear.

EXUM, Justice.

Plaintiff's complaint is cast as a claim for intentional infliction of mental distress. It was filed more than one year but less than three years after the incidents complained of occurred. Defendants moved for summary judgment before answer was due or filed. Much of the factual showing at the hearing on summary judgment related to assaults and batteries committed against plaintiff by defendants. Defendants' motions for summary judgment were allowed on the ground that plaintiff's claim was for assault and battery; therefore it was barred by the one-year statute of limitations applicable to assault and battery. G.S. 1-54(3).

Thus this appeal raises two questions. First, whether defendants, by filing motions for summary judgment before answer was due or filed, properly raised the affirmative defense of the statute of limitations. Second, whether plaintiff's claim is barred by the one-year statute of limitations applicable to assault and battery. We hold that defendants properly raised the limitations defense but that on its merits plaintiff's claim is not altogether barred by the one-year statute because plaintiff's factual showing indicates plaintiff may be able to prove a claim for intentional infliction of mental distress a claim which is governed by the three-year statute of limitations. G.S. 1-52(5). We further hold that summary judgment was, nevertheless, appropriately entered as to the femme defendant inasmuch as plaintiff has made no showing sufficient to indicate he will be able to prove a claim against her.

The facts brought out at the hearing on summary judgment may be briefly summarized: For a time preceding the incidents in question plaintiff Dickens, a thirty-one year old man, shared sex, alcohol and marijuana with defendants' daughter, a seventeen year old high school student. On 2 April 1975 defendants, husband and wife, lured plaintiff into rural Johnston County, North Carolina. Upon plaintiff's arrival defendant Earl Puryear, after identifying himself, called out to defendant Ann Puryear who emerged from beside a nearby building and, crying, stated that she "didn't want to see that SOB." Ann Puryear then left the scene. Thereafter Earl Puryear pointed a pistol between plaintiff's eyes and shouted "Ya'll come on out." Four men wearing ski masks and armed with nightsticks then approached from behind plaintiff and beat him into semi-consciousness. They handcuffed plaintiff to a piece of farm machinery and resumed striking him with nightsticks. Defendant Earl Puryear, while brandishing a knife and cutting plaintiff's hair, threatened plaintiff with castration. During four or five interruptions of the beatings defendant Earl Puryear and the others, within plaintiff's hearing, discussed and took votes on whether plaintiff should be killed or castrated. Finally, after some two hours and the conclusion of a final conference, the beatings ceased. Defendant Earl Puryear told plaintiff to go home, pull his telephone off the wall, pack his clothes, and leave the state of North Carolina; otherwise he would be killed. Plaintiff was then set free. 1

Plaintiff filed his complaint on 31 March 1978. It alleges that defendants on the occasion just described intentionally inflicted mental distress upon him. He further alleges that as a result of defendants' acts plaintiff has suffered "severe and permanent mental and emotional distress, and physical injury to his nerves and nervous system." He alleges that he is unable to sleep, afraid to go out in the dark, afraid to meet strangers, afraid he may be killed, suffering from chronic diarrhea and a gum disorder, unable effectively to perform his job, and that he has lost $1000 per month income.

On 28 April 1978 Judge Preston by order extended the time in which defendants would be required to file responsive pleadings or motions until twenty days after the Court of Appeals decided a case then pending before that court. 2 Defendants, acting pursuant to this order, filed no answer. On 7 September and 15 November 1978 defendants filed, respectively, motions for summary judgment. The motions made no reference to the statute of limitations nor did they contest plaintiff's factual allegations. Judge Braswell, after considering arguments of counsel, plaintiff's complaint, plaintiff's deposition and evidence in the criminal case arising out of this occurrence, 3 concluded that plaintiff's claim was barred by G.S. 1-54(3), the one-year statute of limitations applicable to assault and battery. On 29 March 1979 he granted summary judgment in favor of both defendants.


We first address plaintiff's contention that defendants' motions for summary judgment were procedurally defective. Plaintiff argues initially that defendants' failure to file answer was fatal, procedurally, to the trial court's allowing the motions on statute of limitations grounds. We disagree.

On the question of whether an affirmative defense can be first raised, in the absence of an answer, by a motion for summary judgment, there is an apparent tension between Rules of Civil Procedure 8(c) and 56. Rule 8(c) requires a party to set forth in a responsive pleading "any ... matter constituting an avoidance or affirmative defense" including, among other numerous affirmative defenses, the statute of limitations. 4 Rule 56, on the other hand, provides that a defending party "may, at any time, move with or without supporting affidavits for a summary judgment ...." 5 (Emphasis supplied.) Rule 56(c) provides, further, that 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."

Whatever tension there is between these two rules has been consistently resolved by the federal courts in favor of permitting a party to ground a motion for summary judgment upon an affirmative defense about which there is no genuine factual issue even though the party has filed no answer. 6 Moore summarizes the problem and the solution in 2A Moore's Federal Practice P 8.28 (2d ed. 1980):

"Rule 8(c) might seem to imply that affirmative defenses may be raised only by a pleading (where one is required or permitted) and not otherwise. This, however, is too narrow a construction of the rule. A defendant may move for summary judgment under Rule 56 where 'there is no genuine issue as to any material fact' and he 'is entitled to judgment as a matter of law'; and it is clear that summary judgment is proper where the defendant shows the existence of an affirmative defense even though he has filed no answer." (Emphasis supplied.)

Inasmuch as our rules are drawn from the federal rules it is customary for this Court to look for guidance in interpreting our rules to federal rules decisions. Dendy v. Watkins, 288 N.C. 447, 219 S.E.2d 214 (1975); Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971). There are, moreover, two North Carolina cases which support our conclusion here. Although distinguishable, both Bank v. Gillespie, 291 N.C. 303, 230 S.E.2d 375 (1976), and Cooke v. Cooke, 34 N.C.App. 124, 237 S.E.2d 323 (1977), held that unpleaded affirmative defenses raised by evidence adduced at the hearing could be considered in opposition to a motion for summary judgment.

We agree with the federal decisions and the position taken by Moore. We hold that a party whose responsive pleading is not yet due may by motion for summary judgment and in support of the motion raise an affirmative defense to an asserted claim before the party pleads responsively to the claim.

Plaintiff next argues that failure of defendants' motions for summary judgment to refer expressly to the statute of limitations was fatal to defendants' ability to urge the statute as a ground for allowing their motions. Under the circumstances here we disagree. Although Rule 7(b)(1) requires that motions generally "shall state the grounds therefor," Rule 56 "does not require any grounds be stated in a motion for summary judgment." Conover v. Newton, 297 N.C. 506, 513, 256 S.E.2d 216, 221 (1979). We held in Conover that a ground other than that stated in the motion for summary judgment may be the basis for allowing it; we noted, however, that the ground not expressly mentioned was "clearly within the issue raised by (the) motion." Id. The federal courts have consistently held likewise. 7

Nevertheless, if an affirmative defense required to be raised by a responsive pleading is sought to be raised for the first time in a motion for summary judgment, the motion must ordinarily refer expressly to the affirmative defense relied upon. Only in exceptional circumstances where the party opposing the motion has not been surprised and has had full opportunity to argue and present evidence will movant's failure expressly to refer to the affirmative defense not be a bar to its consideration on summary judgment.

Here plaintiff was not surprised by the limitations defense and had full opportunity to argue and present evidence relevant to the limitations question. Plaintiff's complaint is cast in terms of the tort of intentional infliction of mental distress rather than assault and battery. This demonstrates plaintiff's awareness that the statute of limitations was going to be an issue. Plaintiff did present evidence and briefs on...

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