Miller Building Corp. v. Bell ( 1989 )

HEDRICK, Chief Judge.

Defendants assign error to the refusal of the trial judge to consider the affidavit filed in opposition to the motion for summary judgment. We believe Bank v. Gillespie, 291 N.C. 303, 230 S.E. 2d 375 (1976), is controlling in this case. In Gillespie, Justice Branch, writing for the Supreme Court, stated:

The threshold question presented by this appeal is whether defendant could demonstrate the existence of a genuine issue as to a material fact by raising an unpleaded defense by his evidence opposing plaintiff’s motion for summary judgment.

We hold that unpleaded defenses, when raised by the evidence, should be considered in resolving a motion for summary judgment. However, we think in such cases it is the better practice to require a formal amendment to the pleadings.

Id. at 306, 230 S.E. 2d at 377.

Plaintiff’s efforts to distinguish Gillespie from the case sub judice are not convincing. The evidence embodied in the affidavit which the court refused to consider gives rise to a genuine issue of material fact as to whether the note in question was obtained by duress. Therefore, summary judgment for plaintiff must be vacated and the cause remanded to the superior court for further proceedings.

Vacated and remanded.

Judges ARNOLD and WELLS concur.