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Lemon v. Combs - 164 N.C. App. 615, 596 S.E.2d 344 (2004)


Generally, affidavits must be made on the affiant's personal knowledge of the facts alleged in the petition. The affidavit must in some way show that the affiant is personally familiar with the facts so that he or she could personally testify as a witness. The personal knowledge of the facts asserted in an affidavit is not presumed from a mere positive averment of facts, but rather the court should be shown how the affiant knew or could have known such facts; if there is no evidence from which an inference of personal knowledge can be drawn, then it is presumed that such does not exist. However, where it appears that an affidavit is based on the personal knowledge of the affiant and reasonable inference is that the affiant could competently testify to the contents of the affidavit at trial, there is no requirement that the affiant specifically attest to those facts.


An injured party claimed that he was assaulted by bodyguards who were with a female performer at a concert he attended, and he filed separate lawsuits against the bodyguards, the female performer, and a male entertainer who allegedly employed, supervised, and managed the bodyguards. The injured party presented evidence that a county sheriff served the entertainer by throwing copies of the summons and complaint at his feet when he tried to avoid service, and the trial court entered a default judgment against the entertainer after he failed to answer the complaint.


Was the entry of default judgment against the entertainer correct?




The appellate court held that  the injured party's proof was sufficient to show that the entertainer was served with the summons and complaint, pursuant to N.C. Gen. Stat. § 1-75.10(1). However, the Court concluded that neither the complaint nor other evidence in the record showed that the injured party had personal knowledge of the circumstances surrounding the hiring of the bodyguards, and the record was not sufficient to sustain the trial court's default judgment because the injured party did not fulfill the requirements under the North Carolina statute.

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