Dickens v. Puryear, 45 N.C. App. 696

Summary

The North Carolina Court of Appeals held that the plaintiff's claim was barred by the one-year statute of limitations for assault and battery. Although the complaint labeled the claim as intentional infliction of emotional distress, the court characterized the alleged conduct as assault and battery based on the pleadings and deposition testimony. The court also held that the unpled statute-of-limitations defense could be considered on summary judgment because both parties had addressed it.

Holdings

1. An affirmative defense not pleaded in the answer may be heard for the first time on a motion for summary judgment when both parties are aware of the defense and have had an opportunity to address it.
2. The claim was substantively an assault-and-battery claim, not a claim for intentional infliction of mental distress, and was therefore barred by the one-year statute of limitations in N.C. Gen. Stat. § 1-54(3).

Questions Presented

1. Whether an unpleaded statute-of-limitations defense may be considered on summary judgment when both parties were aware of and litigated the defense.
2. Whether the facts alleged and established by deposition constituted assault and battery, subject to the one-year limitations period in N.C. Gen. Stat. § 1-54(3), rather than intentional infliction of mental distress subject to the three-year limitations period in N.C. Gen. Stat. § 1-52(5).

Disposition

affirmed