dissenting.
The trial court determined there existed a “confidential relationship . . . between [plaintiff and defendant] as of the signing of the [Agreement” and defendant’s “failure to disclose the amount of his State Retirement account was a breach of [his] fiduciary duty [to plaintiff].” Defendant does not assign error to these determinations, and they are thus presumed to be supported by competent evidence, based on a proper construction of the law, and binding on appeal. See Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729, 731 (1991).
The trial court further determined, however, that plaintiff was precluded from recovering for defendant’s breach because she had “waived this breach.” According to the trial court, this waiver was supported by plaintiff’s failure to “take some action to learn the value of the State Retirement account,” and this failure “establishes that there was no reasonable or justifiable reliance upon [defendant's failure to disclose.”
Waiver is an affirmative defense, N.C.G.S. § 1A-1, Rule 8(c) (1999), and because it was not pled by defendant and the record does not reveal the issue was tried by the express or implied consent of the *380parties, it cannot be a basis for resolving this case, see Sloan v. Miller Bldg. Corp., 128 N.C. App. 37, 43, 493 S.E.2d 460, 464 (1997). In any event, the general rule in fraud cases that the representee has a duty to exercise due diligence “does not apply if a relation of trust or confidence exists between the parties, so that one of them places peculiar reliance in the trustworthiness of the other.” 37 C.J.S. Fraud § 46, at 233 (1997). Thus, plaintiffs failure to take some action to discover the value of defendant’s State Retirement account is not fatal to her claim.
Accordingly, I would reverse the order of the trial court and remand for entry of an order rescinding the Agreement. I, therefore, dissent.