299 S.E.2d 279 | N.C. Ct. App. | 1983
John Edward BROWN
v.
Marian Davis LANIER and Linwood Lanier.
Court of Appeals of North Carolina.
*281 Keith E. Fountain, Jacksonville, for plaintiff.
Dunn & Dunn by Raymond E. Dunn, New Bern, for defendants.
WELLS, Judge.
This appeal involves interpretation of the provisions of G.S. 1A-1, Rules 7, 8, and 9 of the Rules of Civil Procedure. More specifically, we address the question of whether plaintiff was required to file a reply alleging fraud and misrepresentation. Defendants contend that summary judgment was properly granted because plaintiff failed to specifically plead the fraud he relies on in avoidance of the release. We disagree and reverse.
Rule 7 of the Rules of Civil Procedure allows filing a reply only when, in an answer, a defendant expressly asserts a counterclaim or when the defendant's answer raises a defense of contributory negligence and the plaintiff wants to retort by alleging last clear chance. Otherwise, a reply may be served only on order of the trial court. See generally Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977); and Shuford, N.C.Civ.Prac. & Proc. (2nd Ed.), § 7-6. Rule 8(d) deems affirmative defenses appearing in the answer to be denied or avoided if a reply is neither required nor permitted. Vernon v. Crist, supra. While Rule 9(b) provides that, in pleading, all averments of the circumstances constituting fraud shall be stated with particularity, "better pleading practice dictates that a plaintiff should not anticipate a defense and undertake to avoid it in his complaint." Vernon v. Crist, supra, citing Exum v. Boyles, 272 N.C. 567, 158 S.E.2d 845 (1968).
Plaintiff was not required to plead matters in avoidance of affirmative defenses, he could not as a matter of right file a reply to plead such matters, and he was not required to seek leave to plead such matters. See, e.g., Eubanks v. Insurance Co., 44 N.C.App. 224, 261 S.E.2d 28 (1979), disc. rev. denied, 299 N.C. 735, 267 S.E.2d 661 (1980). Thus, defendants' affirmative defense of release is deemed avoided or denied by Rule 8(d) and no further pleadings were required.
Under general principles of notice pleading,
[a] pleading complies with [Rule 8(a)(1)] if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, andby using the rules provided for obtaining pretrial discoveryto get any additional information he may need to prepare for trial.
Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970). Defendants' answer makes it clear that they were aware of the material facts pertaining to the lawsuit. Moreover, defendants' discovery efforts which commenced with the filing of their answer resulted in responses from plaintiff which clearly revealed his position as to the events surrounding the alleged release. Had defendants desired more specific pleadings, they could have moved the trial judge to order a reply pursuant to Rule 7.
Plaintiff's complaint stated a claim in negligence. Defendants' answer raised the affirmative defense of release. A release procured by fraud or misrepresentation is invalid. Cunningham v. Brown, 51 N.C.App. 264, 276 S.E.2d 718 (1981). The duty of a person signing a contract to read the contract is not absolute. Sexton v. Lilley, 4 N.C.App. 606, 167 S.E.2d 467 (1969).
The materials on file clearly show that, while the parties are in agreement that plaintiff did in fact sign the release, there are genuine disputes as to whether he *282 knew what he was signing and as to whether the release was obtained by misrepresentation or fraud. At summary judgment, the trial court must consider not only the pleadings, but also the facts which are forecast by the evidentiary showing. See Mims v. Mims, 305 N.C. 41, 286 S.E.2d 779 (1982), and cases cited therein. The judgment of the trial court must be reversed and the case remanded for trial.
Reversed and Remanded.
VAUGHN, C.J., and BRASWELL, J., concur.
