affirmative defense in North Carolina

2026The party moving for summary judgment may satisfy its burden by proving that “an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, . . . or by showing through discovery that the opposing party cannot produce evidence to support an essential element of [the] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000) (citations omitted).

2026The party moving for summary judgment may satisfy its burden by proving that “an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, . . . or by showing through discovery that the opposing party cannot produce evidence to support an essential element of [the] claim[.]” Dobson v. Harris, 352 N.C. 77, 83 (2000) (citations omitted).

2021Defendants further contend that if the Williamson Plaintiffs can be seen as having placed the release provision at issue prior to 2019, Defendants nevertheless pleaded sufficient facts to timely raise the June 2013 Agreement’s release in defense. 7 (Defs.’ Opp’n Br. 2–3, 12–13.) Asserting that their failure to mention the June 2013 6 Although “[f]ailure to raise an affirmative defense in the pleadings generally results in a waiver thereof,” Robinson, 348 N.C. at 566 , the Court recognizes, as Defendants point out, that “[u]nder certain circumstances[,]” our appellate courts have “permitted aff

2018See id. at 250 (“[I]f 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.” (emphasis omitted) (quoting Dickens v. Puryear, 302 N.C. 437, 443 , 276 S.E.2d 325, 329 (1981))).

2019The moving party bears the burden of establishing a lack of any triable issue and may meet this burden by “proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Roumillat v. Simplistic Enters., Inc., 331 N.C. 57 , 62–63, 414 S.E.2d 339 , 341–42 (1992). 38.

2019The moving party bears the burden of establishing a lack of any triable issue and may meet this burden by “proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Roumillat v. Simplistic Enters., Inc., 331 N.C. 57 , 62–63, 414 S.E.2d 339 , 341–42 (1992). 38.

2011“The movant may meet this burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Collingwood v. General Electric Real Estate Equities, Inc., 324 N.C. 63, 66 , 376 S.E.2d 425, 427 (1989).

2011“The movant may meet this burden by proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense which would bar the claim.” Collingwood v. General Electric Real Estate Equities, Inc., 324 N.C. 63, 66 , 376 S.E.2d 425, 427 (1989).

2026Self-defense is an affirmative defense, whereby “the defendant says I did the act charged in the indictment, but I should not be found guilty of the crime charged because . . .” State v. Caddell, 287 N.C. 266, 289 , 215 S.E.2d 348, 363 (1975) (quotation marks omitted); N.C.

2026Self-defense is an affirmative defense, whereby “the defendant says I did the act charged in the indictment, but I should not be found guilty of the crime charged because . . .” State v. Caddell, 287 N.C. 266, 289 , 215 S.E.2d 348, 363 (1975) (quotation marks omitted); N.C.

2025This burden requires “(1) proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party (2) cannot produce evidence to support an essential element of his or her claim, or (3) cannot surmount an affirmative defense which would bar the claim.” Bernick v. Jurden, 306 N.C. 435 , 440–41, 293 S.E.2d 405, 409 (1982).

2025This burden requires “(1) proving that an essential element of the opposing party’s claim is nonexistent, or by showing through discovery that the opposing party (2) cannot produce evidence to support an essential element of his or her claim, or (3) cannot surmount an affirmative defense which would bar the claim.” Bernick v. Jurden, 306 N.C. 435 , 440–41, 293 S.E.2d 405, 409 (1982).

2026As our Supreme Court has observed, “[f]ailure to raise an affirmative defense in the pleadings generally results in a waiver thereof.” In re T.M.L., 377 N.C. 369 , 381 (2021) (quoting Robinson v. Powell, 348 N.C. 562, 566 (1998)); see also Williams v. Blue Cross Blue Shield of N.C., 357 N.C. 170, 178 (2003) (“When the statute of limi- tations is properly pleaded and the facts of the case are not disputed, resolution of the question becomes a matter of law and summary judgment may be appropriate.” (em- phasis added) (citation modified) (quoting Marshburn v. Associated Indem.

2026As Respondent did not raise his affirmative defense in his first re- sponsive pleading, he has waived the defense.” (citing Robinson, 348 N.C. at 566 )).7 7 There are narrow exceptions that permit a party to present an affirmative defense for the first time at the summary judgment stage, none of which applies here.

2025Laches is an affirmative defense “‘[i]n equity, where lapse of time has resulted in some change in the condition of the property or in the relations of the parties which would make it unjust to permit the prosecution of the claim.’” Taylor v. City of Raleigh, 290 N.C. 608, 622 , 227 S.E.2d 576, 584 (1976) (citation omitted).

2025Laches is an affirmative defense “‘[i]n equity, where lapse of time has resulted in some change in the condition of the property or in the relations of the parties which would make it unjust to permit the prosecution of the claim.’” Taylor v. City of Raleigh, 290 N.C. 608, 622 , 227 S.E.2d 576, 584 (1976) (citation omitted).

2007Summary judgment is appropriate if: (1) the non-moving party does not have a factual basis for each essential element of its claim; (2) the facts are not disputed and only a question of law remains, McNair v. Boyette, 282 N.C. 230, 235 , 192 S.E.2d 457, 460 (1972); or (3) if the non-moving party is unable to overcome an affirmative defense 2 offered by the moving party, Bonestell v. North Topsail Shores Condominiums, 103 N.C.

2007Summary judgment is appropriate if: (1) the non-moving party does not have a factual basis for each essential element of its claim; (2) the facts are not disputed and only a question of law remains, McNair v. Boyette, 282 N.C. 230, 235 , 192 S.E.2d 457, 460 (1972); or (3) if the non-moving party is unable to overcome an affirmative defense 2 offered by the moving party, Bonestell v. North Topsail Shores Condominiums, 103 N.C.

2021“When determining whether the evidence is sufficient to entitle a defendant to jury instructions on a defense or mitigating factor, courts must consider the evidence in the light most favorable to defendant.” State v. Mercer, 373 N.C. 459 , 464, 838 S.E.2d 359 , 363 (2020) (quotation marks and citations omitted). ¶ 12 The defense of accident “is not an affirmative defense, but acts to negate the mens rea element of homicide.” State v. Lytton, 319 N.C. 422, 425-26 , 355 S.E.2d 485, 487 (1987) (citations omitted).

2021“When determining whether the evidence is sufficient to entitle a defendant to jury instructions on a defense or mitigating factor, courts must consider the evidence in the light most favorable to defendant.” State v. Mercer, 373 N.C. 459 , 464, 838 S.E.2d 359 , 363 (2020) (quotation marks and citations omitted). ¶ 12 The defense of accident “is not an affirmative defense, but acts to negate the mens rea element of homicide.” State v. Lytton, 319 N.C. 422, 425-26 , 355 S.E.2d 485, 487 (1987) (citations omitted).

2019The moving party must demonstrate the absence of a triable issue: "(1) by showing that an essential element of the opposing party's claim is nonexistent; or (2) [by] demonstrating that the opposing party cannot produce evidence sufficient to support an essential element of the claim or overcome an affirmative defense which would work to bar [its] claim." Wilhelm v. City of Fayetteville , 121 N.C.

2014App. 182, 184 , 696 S.E.2d 159 , 160–61 (2010). {19} The moving party must demonstrate the absence of a triable issue and does so either: “(1) by showing that an essential element of the opposing party’s claim is non-existent; or (2) by demonstrating that the opposing party cannot produce evidence sufficient to support an essential element of the claim or overcome an affirmative defense which would work to bar its claim.” Wilhelm v. City of Fayetteville, 121 N.C.

2025Summary judgment is appropriate where “the non-moving party is unable to overcome an affirmative defense offered by the moving party.” Griffith v. Glen Wood Co., 184 N.C.

2014App. 206, 210 , 646 S.E.2d 550, 554 (2007) (“Summary judgment is appropriate if . . . the non-moving party is unable to overcome an affirmative defense offered by the moving party.”).

2026“This burden may be met by proving . . . an essential element of the opposing party’s claim is non-extant, or by showing through discovery . . . the opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense[,] which would bar the claim.” Id. (citation and internal quotation marks omitted). -5- DALES V.

2026“This burden may be met by proving . . . an essential element of the opposing party’s claim is nonextant, or by showing through discovery . . . opposing party cannot produce evidence to support an essential element of his claim or cannot surmount an affirmative defense[,] which would bar the claim.” Id. (citation and internal quotation marks omitted).

2006"A defendant who moves for summary judgment may meet this burden by showing either that (1) an essential element of plaintiff's claim is nonexistent; (2) plaintiff cannot produce evidence to support an essential element of its claim; or (3) plaintiff cannot surmount an affirmative defense raised in bar of its claim." Lyles v. City of Charlotte, 120 N.C.

2006The moving party may meet this burden by showing that the “plaintiff cannot surmount an affirmative defense raised in bar of its claim.” Lyles v. City of Charlotte, 120 N.C.

2026BROWN Opinion of the Court discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense.” James v. Clark, 118 N.C.

2026Opinion of the Court A defendant may show entitlement to summary judgment by: “(1) proving that an essential element of the plaintiff’s case is nonexistent; (2) showing through discovery . . . plaintiff cannot produce evidence to support an essential element of his or her claim; or (3) showing . . . plaintiff cannot surmount an affirmative defense.” James v. Clark, 118 N.C.

2009See Hageman, 307 N.C. at 27 , 296 S.E.2d at 448 (noting' that, because entrapment is not a defense which negates an essential element of crime, but is an affirmative defense in the nature of confession and avoidance, defendants who seek to avail themselves of this affirmative defense bear the burden of production); see also State v. Braun, 31 N.C.

2009See Hageman, 307 N.C. at 27 , 296 S.E.2d at 448 (noting' that, because entrapment is not a defense which negates an essential element of crime, but is an affirmative defense in the nature of confession and avoidance, defendants who seek to avail themselves of this affirmative defense bear the burden of production); see also State v. Braun, 31 N.C.

2024The showing required for summary judgment may be accomplished by proving an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense[.] Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C. 520, 523 (2012) (marks and citation omitted); see N.C.

2021The moving party may meet this burden by “proving an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense.” Variety Wholesalers, Inc., 365 N.C. at 523 .

2010Summary judgment may be properly shown by a party: "`(1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense.'" Kinesis Adver., Inc. v. Hill, 187 N.C.App. 1, 10 , 652 S.E.2d 284, 292 (2007) (quoting Draughon v. Harnett County Bd. of Educ., 158 N.C.App. 705, 708 , 582 S.E.2d 343, 345 (2003)), appeal dismissed, disc. review denied, 362 N.C. 177 , 658 S.E.2d 485 (2008).

2010Summary judgment may be properly shown by a party: "`(1) proving that an essential element of the plaintiff's case is non-existent, or (2) showing through discovery that the plaintiff cannot produce evidence to support an essential element of his or her claim, or (3) showing that the plaintiff cannot surmount an affirmative defense.'" Kinesis Adver., Inc. v. Hill, 187 N.C.App. 1, 10 , 652 S.E.2d 284, 292 (2007) (quoting Draughon v. Harnett County Bd. of Educ., 158 N.C.App. 705, 708 , 582 S.E.2d 343, 345 (2003)), appeal dismissed, disc. review denied, 362 N.C. 177 , 658 S.E.2d 485 (2008).

2000The showing required for summary judgment may be accomplished by proving an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, e.g., Goodman v. Wenco Foods, Inc., 333 N.C. 1 , 423 S.E.2d 444 (1992), or by showing through discovery that the opposing party cannot produce evidence to support an essential element of her claim, e.g., Lowe v. Bradford, 305 N.C. 366 , 289 S.E.2d 363 (1982).

2000The showing required for summary judgment may be accomplished by proving an essential element of the opposing party’s claim does not exist, cannot be proven at trial, or would be barred by an affirmative defense, e.g., Goodman v. Wenco Foods, Inc., 333 N.C. 1 , 423 S.E.2d 444 (1992), or by showing through discovery that the opposing party cannot produce evidence to support an essential element of her claim, e.g., Lowe v. Bradford, 305 N.C. 366 , 289 S.E.2d 363 (1982).

2017"A defendant may show entitlement to summary judgment by ... showing that the plaintiff cannot surmount an affirmative defense which would bar the claim." Carcano v. JBSS, LLC , 200 N.C.

2015"A defendant may show entitlement to summary judgment by ... showing that the plaintiff cannot surmount an affirmative defense which would bar the claim." Carcano v. JBSS, LLC, 200 N.C.App. 162 , 166, 684 S.E.2d 41 , 46 (2009) (quotation omitted).

1999For a defending party to prevail on a motion for summary judgment, the party must demonstrate that “ ‘(1) an essential element of [the claimant’s] claim is nonexistent... [2] [the claimant] cannot produce evidence to support an essential element of [her] claim, or . . . [3] [the claimant] cannot surmount an affirmative defense which would bar the claim.’ ” Clark v. Brown, 99 N.C.

1999For a defending party to prevail on a motion for summary judgment, the party must demonstrate that “ ‘(1) an essential element of [the claimant’s] claim is nonexistent... [2] [the claimant] cannot produce evidence to support an essential element of [her] claim, or . . . [3] [the claimant] cannot surmount an affirmative defense which would bar the claim.’ ” Clark v. Brown, 99 N.C.

2025App. 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.

1995In County of Rutherford, this Court reiterated that to prevail on the affirmative defense of collateral estoppel based on a prior paternity proceeding: “(1) The issue of paternity must necessarily have been determined previously and (2) the parties to that prior action must be identical or privies to the parties in the instant case.” Id. at 75 , 394 S.E.2d at 265 quoting State By and Through New Bern C.S.A. v. Lewis, 311 N.C. 727, 731 , 319 S.E.2d 145, 148 (1984).

2022App. 72, 76 , 280 S.E.2d 27, 30 (1981) (“Where a defendant does not raise an affirmative defense in his pleadings or [before the BOA], he cannot present it on appeal.”).

2022App. 72, 76 , 280 S.E.2d 27, 30 (1981) (“Where a defendant does not raise an affirmative defense in his pleadings or [before the BOA], he cannot present it on appeal.”).