concluding that under Rule 17, trial court should have either corrected plaintiffs error by joining real party in interest or refused to rule on merits until real party in interest was substituted for plaintiff, and reversing and remanding “to give the real party in interest an opportunity to join or be substituted as a party plaintiff’
How later courts described this case
- concluding that under Rule 17, trial court should have either corrected plaintiffs error by joining real party in interest or refused to rule on merits until real party in interest was substituted for plaintiff, and reversing and remanding “to give the real party in interest an opportunity to join or be substituted as a party plaintiff’
- “[B]y attending and participating in the hearing "without objection or without requesting a continuance, plaintiff waived any right to object to the summary judgment hearing on the ground of lack of notice.”
Written by the judges who cited it.
The opinion
*352 Judge Greene
dissenting.
I disagree with the majority that the trial court correctly dismissed the complaint on the basis that the plaintiff failed to specifically plead compliance with the applicable statute of repose. Our courts have repeatedly held that the plaintiff has the burden of proving “the condition precedent that its cause of action is brought” within the period of the applicable statute of repose. Chicopee, Inc. v. Sims Metal Works, Inc., 98 N.C. App. 423, 426 , 391 S.E.2d 211, 213 , disc. rev. denied to defendants and allowed to plaintiff, 327 N.C. 426 , 395 S.E.2d 674 (1990), appeal by plaintiff withdrawn, 328 N.C. 329 , 402 S.E.2d 826 (1991); see e.g., Bolick v. American Barmag Corp., 306 N.C. 364, 370 , 293 S.E.2d 415, 420 (1982). I do not read Rule 9(c) as requiring the pleading of conditions precedent. Indeed this Court has specifically held that Rule 9(c) only “authorizes and encourages the general averment of conditions precedent.” Plemmons v. City of Gastonia, 62 N.C. App. 470, 475 , 302 S.E.2d 905, 908 , disc. rev. denied, 309 N.C. 322 , 307 S.E.2d 165 (1983); see 1 G. Gray Wilson, North Carolina Civil Procedure § 9-4 (2d ed. 1995) (hereinafter Wilson) (conditions precedent more properly classified as Rule 8(c) affirmative defenses). I am aware of the language in Tipton & Young Constr. Co. v. Blue Ridge Structure Co., 116 N.C. App. 115, 118 , 446 S.E.2d 603, 605 (1994), aff’d per curiam, 340 N.C. 257 , 456 S.E.2d 308 (1995), which states that “statues of repose are conditions precedent which must be specially pled.” The cases cited by the Tipton court in support of that statement, however, only support the principle that statues of repose are conditions precedent and that the plaintiff has the burden at trial of proving that the claim is brought within the appropriate statue of repose. Furthermore, the statement made in Tipton was not necessary for the resolution of that case and thus obiter dictum in that the Court held that the plaintiff “has not produced any evidence of compliance with” the statute of repose. Id. at 119, 446 S.E.2d at 605 . In any event, even if Rule 9(c) is construed to require pleading of the condition precedent, the complaint, through certain exhibits attached, alleges that the condominium complex was completed in 1986. Construing the complaint liberally, see Wilson § 9-4 (“courts should be hesitant to enforce [Rule 9(c)] strictly”), the allegations sufficiently comply with Rule 9.
There is the separate question of which statute of repose applies. The plaintiff argues that section 1-50(5) (d) applies so as to create an exception to the six year statute (section 1-50(5) (a)) and gives rise to a ten year statute of repose pursuant to section 1-52(16). The major *353 ity refuses to address this argument on the basis that the plaintiff “failed to specially plead in its complaint any grounds to show [that section l-50(5)(d)] applied in this case.” Again, I do not agree. The plaintiff has the burden of proving that the exception applies but there is no requirement that this be pled. Even if there is such a requirement, I believe that when the complaint is construed liberally, the facts supporting use of the exception have been sufficiently pled.
Finally I also disagree that dismissal of the complaint was proper on the grounds that the claim was not brought in the name of the real party in interest. Rule 17(a) expressly states that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection.” N.C.G.S. § 1A-1, Rule 17(a) (1990). When a case is not brought in the name of the real party in interest “the court should refuse to deal with the merits of the case until the absent parties are brought into the action, and in the absence of a proper motion by a competent person, the defect should be corrected by ex mero mo tu ruling of the court.” Booker v. Everhart, 294 N.C. 146, 158 , 240 S.E.2d 360, 367 (1978). “This provision is designed to avoid ‘needless delay and technical disposition of a meritorious action.’ ” Wilson § 17-8, at 349 (quoting N.C.G.S. § 1A-1, Rule 17 comment). Pursuant to Rule 17, the trial court should have either corrected the plaintiffs error itself or refused to hear the motion for summary judgment until the real party in interest was substituted for plaintiff. I would reverse and remand to give the real party in interest an opportunity to join or be substituted as a party plaintiff.