Evans v. Rose

182 S.E.2d 591 (1971) 12 N.C. App. 165

James C. EVANS et al., Plaintiffs-Appellees,
v.
Dorothy ROSE, Defendant-Appellant.

No. 7126DC424.

Court of Appeals of North Carolina.

August 4, 1971. Certiorari Denied October 5, 1971.

No appearance for plaintiffs.

Legal Aid Society of Mecklenburg County by Gail F. Barber and James A. Long, IV, Charlotte, for defendant.

Certiorari Denied by Supreme Court October 5, 1971.

BROCK, Judge.

The only question presented to this Court is whether the trial judge erred in striking from the answer defendant's "affirmative defenses". The questions argued by defendant are succinctly stated in defendant's brief as follows:

"The lower court erred in striking those portions of defendant's answer which alleged that plaintiff sought to evict defendant solely in retaliation for defendant's exercise of constitutionally protected rights

"A. The requirements of the Fourteenth Amendment to the United States Constitution must be observed when the parties to an action assert conflicting claims of right and the conflict is resolved by a state court according to state law. Consequently, the competing private rights of the plaintiff and defendant must be determined by the balancing of interests requirements of the Fourteenth Amendment to the United States Constitution

"B. In an action in summary ejectment, the allegation of a retaliatory motive on the part of a landlord against the tenant for the exercise of constitutional rights by the tenant, if proved, constitutes an affirmative defense to the action where the retaliatory motive was the primary reason for the institution of the action"

We hold that the trial judge was correct in striking the defendant's "affirmative defenses" as being irrelevant to the landlords' right to recover possession of their property.

Affirmed.

VAUGHN and GRAHAM, JJ., concur.