C&S NAT'L. BANK v. CONST. ENTERPRISES
11/9/1992
these affirmative defenses was inappropriate.
The trial court, however, found the pleadings "clearly established" Froehling & Robertson's time-limitation defenses and granted the latter judgment on the pleadings.
Rules 7(a) and 8(c) and (d), SCRCP, control what we must do here. Rule 7(a), SCRCP provides:
There shall be a complaint and an answer; and a reply
to a counterclaim denominated as such; an answer to a
cross-claim, if the answer contains a cross-claim; a third-party
complaint, if a person who was not an original party
is summoned under Rule 14, and there shall be a third-party
answer, if a third-party complaint is served. No
other pleadings shall be allowed, except that the court
may order a reply to an answer or a third-party answer;
and there may be a reply to affirmative defenses as provided
in Rule 8(c). (Emphasis added.)
Rule 8(c) provides in pertinent part:
In pleading to a preceding pleading, a party shall set
forth affirmatively the defenses: ... statute of limitations
. . . and any other matter constituting an ... affirmative
defense. ... A party may file a reply to any of
the foregoing affirmative defenses. (Emphasis added.)
And Rule 8(d) provides:
Averments in a pleading to which a responsive pleading
is required, other than those as to the amount of damage,
are admitted when not denied in the responsive
pleading. Averments in a pleading to which no responsive
pleading is required or permitted shall be taken as denied
or avoided.
When these three rules are read together, as they must be, it becomes clear that, where an answer asserts affirmative defenses, the affirmative defenses are to be deemed denied or
Because material issues of fact existed regarding Froehling & Robertson's time-limitation defenses, its motion for judgment on the pleadings based on these affirmative defenses should not have been granted. See 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE ยง 1368 at 529 (2d ed. 1990) (" hen material issues of fact are raised by the answer and defendant seeks judgment on the pleadings on the basis of this matter, his motion cannot be granted."); see also Russell v. City of Columbia, 305 S.C. 86, 89, 406 S.E.2d 338, 339 (1991) ("A judgment on the pleadings against the plaintiff is not proper if there is an issue of fact raised by the complaint which, if resolved in favor of the plaintiff, would entitle him to judgment. . . . Further, a judgment on the pleadings is considered to be a drastic procedure by our courts.").
Reversed.
GARDNER, J., and LITTLEJOHN, Acting J., concur.
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