Ambush Affidavits

Today the COA held that even when a party waits until the motion hearing itself before serving an affidavit, the trial court has discretion to proceed with the hearing and consider the affidavit (even if the tendering party has not shown good cause for the delay).

The case concerns Rule 6(d) of the NC Rules of Civil Procedure. The rule, designed to prevent ambush tactics and give parties a fair opportunity to respond to motions and affidavits, prescribes timelines for filings in advance of a motion hearing. This includes a 2-day rule for affidavits used to oppose motions: "If the opposing affidavit is not served on the other parties at least two days before the hearing on the motion, the court may continue the matter for a reaonsable period to allow the responding party to prepare a response, proceed with the matter without considering the untimely served affidavit, or take such other action as the ends of justice require."

In this case, the opposing party (the plaintiff) failed to serve her affidavit (a critical affidavit) two days before the hearing. In fact, she waited until the motion hearing itself. The trial court did not postpone the hearing or exclude the affidavit. Instead the court proceeded with the hearing and ruled for plaintiff (i.e., denied defendants' motion). Defendants appealed. They argued in their brief that "Rule 6(d) does not authorize the trial court to proceed with the hearing and consider an untimely served opposing affidavit." And they argued that a trial court abuses its discretion by considering an untimely served affidavit without a showing of excusable neglect.

The COA affirmed, essentially holding that, under Rule 6(d), a trial court has discretion to proceed with a hearing and consider an untimely affidavit even if the opposing party fails to serve the affidavit in advance of the hearing and fails to establish good cause for the delay.