I. IN GENERAL.

Application of Section. - The argument that the general rule establishing one form of action requires that a lien be enforced by commencing an action under this rule overlooks the familiar rule of construction that a particular statute controls a general one with reference to the same subject matter. For example, G.S. 44A-13(a) specifically directs that a lien against property vested in a trustee in bankruptcy shall be enforced in accordance with the orders of the bankruptcy court. Therefore, G.S. 44A-13(a) controls over this rule. RDC, Inc. v. Brookleigh Bldrs., Inc., 309 N.C. 182, 305 S.E.2d 722 (1983).

G.S. 45-21.34 and G.S. 45-21.35 must be considered in pari materia with G.S. 1A-1, Rules 2, 3, and 65. Swindell v. Overton, 62 N.C. App. 160, 302 S.E.2d 841 (1983), rev'd on other grounds, 310 N.C. 707, 314 S.E.2d 512 (1984).

Applied in Swenson v. All Am. Assurance Co., 33 N.C. App. 458, 235 S.E.2d 793 (1977); Pugh v. Pugh, 111 N.C. App. 118, 431 S.E.2d 873 (1993); Sprinkle v. N.C. Wildlife Res. Comm'n, 165 N.C. App. 721, 600 S.E.2d 473 (2004).

Cited in Bradley v. Bradley, 12 N.C. App. 8, 182 S.E.2d 201 (1971); Langdon v. Hurdle, 15 N.C. App. 158, 189 S.E.2d 517 (1972); In re Clark, 303 N.C. 592, 281 S.E.2d 47 (1981); North Carolina Nat'l Bank v. C.P. Robinson Co., 319 N.C. 63, 352 S.E.2d 684 (1987); Morrow v. Morrow, 103 N.C. App. 787, 407 S.E.2d 286 (1991); Roberts v. Young, 120 N.C. App. 720, 464 S.E.2d 78 (1995); Huff v. Autos Unlimited, Inc., 124 N.C. App. 410, 477 S.E.2d 86 (1996), cert. denied, 346 N.C. 279, 486 S.E.2d 546 (1997); In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003); Skinner v. Preferred Credit, 172 N.C. App. 407, 616 S.E.2d 676 (2005); State ex rel. Guilford County Bd. of Educ. v. Herbin, 215 N.C. App. 348, 716 S.E.2d 35 (2011).

II. DECISIONS UNDER PRIOR LAW.

Editor's Note. - The cases cited below were decided under former G.S. 1-9.

One Form of Action for Torts and Contracts. - Although there is but one form of action, there are still torts and contracts just as there were prior to the Code of Civil Procedure, but there are not several forms of action as there used to be, and pleadings are not suited for different forms of action as they used to be, but are all suited to one form, whether the subject of the action be a tort or a contract. Bitting v. Thaxton, 72 N.C. 541 (1875).

Separate Legal and Equitable Principles. - Although one tribunal deals out both law and equity, the principles of law and equity remain separate and distinct, and it is just as important to keep them separate. Jordan v. Lanier, 73 N.C. 90 (1875). See Kiff v. Weaver, 94 N.C. 274 (1886).

The plaintiff can allege a legal or an equitable cause of action, or can combine them as he may elect. Wilson v. Waldo, 221 F. 505 (W.D.N.C. 1915), rev'd on other grounds, 231 F. 654 ((4th Cir. 1916)).

Any defense, either legal or equitable, may be set up by the defendant in an action by the endorsee upon a nonnegotiable note. Thompson v. Osborne, 152 N.C. 408, 67 S.E. 1029 (1910).

Common-Law Forms Immaterial. - Since the old technical distinctions in the forms of actions were abolished by former § 1-9, it was immaterial whether the plaintiff 's remedy under the old practice was trespass or case. Sneeden v. Harris, 109 N.C. 349, 13 S.E. 920 (1891).

An exception to a complaint that it was for money had and received and as such could not be maintained unless the money had been actually received by the defendant was not maintainable under former § 1-9, regardless of the common-law practice. Staton v. Webb, 137 N.C. 35, 49 S.E. 55 (1904).

I. IN GENERAL.

Construction With Other Rules. - N.C. R. Civ. P. 3 states that the summons and complaint shall be served in accordance with the statute of limitations as provided in N.C. R. Civ. P. 4, but the rule does not state that the failure to do so renders a suit abated or the commencement void. Melvin v. Wal-Mart Stores, Inc., 338 F. Supp. 2d 622 (M.D.N.C. 2004).

G.S. 45-21.34 and G.S. 45-21.35 must be considered in pari materia with G.S. 1A-1, Rules 2, 3, and 65. Swindell v. Overton, 62 N.C. App. 160, 302 S.E.2d 841 (1983), rev'd on other grounds, 310 N.C. 707, 314 S.E.2d 512 (1984).

42 U.S.C.S. § 2000e-5(f)(1) does not specify that the filing of a complaint is necessary to commence an action; accordingly, a plaintiff may initiate an action under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., in a North Carolina state court utilizing either means set forth in N.C. R. Civ. P. 3. Lassiter v. LabCorp Occupational Testing Servs., 337 F. Supp. 2d 746 (M.D.N.C. 2004).

Due process requires that a party be properly notified of the proceeding against him. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Legislative intent behind the amendment to N.C. R. Civ. P. 3, which eliminated the requirement of a summons, was to allow an action to be commenced solely by filing a complaint, and to thereby protect similarly situated plaintiffs in federal court who do not have a summons issued within the statute of limitations. Melvin v. Wal-Mart Stores, Inc., 338 F. Supp. 2d 622 (M.D.N.C. 2004).

This rule requires only filing of the complaint, not service, within the 20-day period. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

The delayed service of complaint does not constitute a link in the chain of process. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Complaint or Summons as Condition Precedent to Issuance of Injunction. - The filing of a complaint or the issuance of summons pursuant to this rule is a condition precedent to the issuance of an injunction or restraining order. Carolina Freight Carriers Corp. v. Local 61, 11 N.C. App. 159, 180 S.E.2d 461, cert. denied, 278 N.C. 701, 181 S.E.2d 601 (1971).

This rule and G.S. 1A-1, Rule 65(b) must be construed in pari materia; temporary restraining order procedure under G.S. 1A-1, Rule 65(b) is permissible only after an action is commenced as provided by this rule. Carolina Freight Carriers Corp. v. Local 61, 11 N.C. App. 159, 180 S.E.2d 461, cert. denied, 278 N.C. 701, 181 S.E.2d 601 (1971).

Where there was no complaint and the record failed to disclose that a summons was ever issued, an action was not properly instituted and the superior court did not have jurisdiction; therefore, the court's temporary restraining order was void, and disobedience of it was not punishable. Carolina Freight Carriers Corp. v. Local 61, 11 N.C. App. 159, 180 S.E.2d 461, cert. denied, 278 N.C. 701, 181 S.E.2d 601 (1971).

Under North Carolina statutes and procedure, an injunction is not a cause of action or a lawsuit in and of itself, but is a remedy which is ancillary to a pending suit; where no complaint or summons has been filed, no action has been instituted, and there is no pending action to which an injunction can be ancillary. Lynch v. Snepp, 350 F. Supp. 1134 (W.D.N.C. 1972), cert. denied, 415 U.S. 983, 94 S. Ct. 1576, 39 L. Ed. 2d 880 (1974), rev'd on other grounds, 472 F.2d 769 (4th Cir. 1973).

"Affidavit" Not a Complaint. - A document denominated an affidavit did not purport to be a complaint and could not be held to be one, where, among other things, (1) it was not properly captioned as required by G.S. 1A-1, Rule 10(a); (2) it was not signed by an attorney of record as required by G.S. 1A-1, Rule 11(a); and (3) there was no demand for relief made in the document as required by G.S. 1A-1, Rule 8(a)(2). Carolina Freight Carriers Corp. v. Local 61, 11 N.C. App. 159, 180 S.E.2d 461, cert. denied, 278 N.C. 701, 181 S.E.2d 601 (1971).

Where plaintiff commenced an action by issuance of summons in accordance with former procedure, but had not yet filed a complaint, the subsequent enactment of the Rules of Civil Procedure, under which an action is commenced by filing a complaint, did not require that she recommence her action in accordance with this rule. Williams v. Blount, 14 N.C. App. 139, 187 S.E.2d 464 (1972).

The usual and most frequently employed methods for service of process on a natural person are personal service and substituted personal service. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974) (1974).

Filing of Action to Enforce Lien Against Bankrupt. - By filing its claim of lien in a bankruptcy proceeding within 180 days after last providing labor or materials, construction company satisfied the requirement of G.S. 44A-13(a) that the action for enforcement of the lien be commenced within the 180-day period. RDC, Inc. v. Brookleigh Builders, Inc., 309 N.C. 182, 305 S.E.2d 722 (1983).

The actions of a state officer pursuant to this rule cannot operate to extend the statute of limitations as provided for by Congress in Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), and applied by the Supreme Court. Cannon v. Kroger Co., 647 F. Supp. 82 (M.D.N.C. 1986), aff'd, 832 F.2d 303 (4th Cir. 1987), rehearing denied, 837 F.2d 660 (4th Cir. 1988).

Expiration of Statute of Limitations - Summary judgment pursuant to G.S. 1A-1, N.C. R. Civ. P. 56(c) was properly granted in a child's claim against the father alleging fraud, among other things; because the claim accrued when the child was a minor, the child was required under G.S. 1-17(a), 1-52 to file the claim within three years of reaching majority, which the child failed to do, as the summons and complaint, which began the lawsuit pursuant to G.S. 1A-1, N.C. R. Civ. P. 3, were not issued until after the deadline passed. Beall v. Beall, 156 N.C. App. 542, 577 S.E.2d 356 (2003).

Extension of Time. - Plaintiff commenced the action before the statute of limitations expired, by filing an application and order extending time to file a complaint. Wooten v. Warren ex rel. Gilmer, 117 N.C. App. 350, 451 S.E.2d 342 (1994).

Extension of Time Granted for Settling Case on Appeal. - Although company's challenge to its disqualification from the food stamp program was timely under the state procedural rules, those rules directly conflicted with the federal statute that limited the government's waiver of immunity; under the Supremacy Clause, 7 U.S.C.S. 2023(a)'s limitations period had to prevail over the longer period allowed under N.C. R. Civ. P. 3(a). Henderson Fruit & Produce Co. v. United States, 181 F. Supp. 2d 566 (E.D.N.C. 2001).

Expiration of Time Extension. - When plaintiffs failed to file their complaint before the extension of time expired, their action abated, and the three-year statute of limitations had run. The trial court could not extend their time in which to file their complaint under N.C.R.Civ.P., Rule 6(b) thus reviving the original action and avoiding the statute of limitations. Osborne v. Walton, 110 N.C. App. 850, 431 S.E.2d 496 (1993).

Period for Filing in Federal Court Not Extended Under This Section. - Statutory period for filing an action in federal district court alleging that an employer has breached its contractual obligations toward an employee under a collective bargaining agreement in violation of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, and that the employee's union, by failing to protect its member's rights, has failed to satisfy the duty of fair representation implied by the National Labor Relations Act, 29 U.S.C. § 151 et seq., could not be extended by the alternative means of commencing an action available under this rule. Cannon v. Kroger Co., 832 F.2d 303 (4th Cir. 1987), rehearing denied, 837 F.2d 660 (4th Cir. 1988).

Extension of Time in Which to File Claim Under Americans With Disabilities Act. - N.C. R. Civ. P. 3, allowing a civil action to be commenced by the issuance of a summons rather than the filing of a complaint, can properly be used in North Carolina state courts to extend the time in which to file claims under the Americans with Disabilities Act of 1990, 42 U.S.C.S. § 12101 et seq. Sheaffer v. County of Chatham, 337 F. Supp. 2d 709 (M.D.N.C. 2004).

A voluntary dismissal of negligence action without prejudice did not toll the statute of limitations in a case in which the plaintiff, seeing the statute of limitations about to run out, received an order extending the time for filing a complaint but failed to serve defendant with civil summons and the order. The defective service of process discontinued plaintiff's original action, and the trial court properly treated the voluntary dismissal as if it had never been filed and the statute of limitations as if it had not been tolled. Plaintiff's second complaint, therefore, constituted a new action which plaintiff failed to file within the three years required by the statute of limitations. Latham v. Cherry, 111 N.C. App. 871, 433 S.E.2d 478 (1993), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994).

Special Proceedings. - When the State sought the production of a deceased client's statements to his attorney, in a murder investigation, and the State did not convene an investigative grand jury, under G.S. 15A-623(h), or strictly comply with G.S. 1A-1, N.C. R. Civ. P. 3, it, nonetheless, filed its petition in the superior court, which was the proper court to hear a "special proceeding," under G.S. 7A-246, and it could, to accommodate the exigent circumstances presented, hear the matter. In re Investigation of the Death of Miller, 357 N.C. 316, 584 S.E.2d 772 (2003).

Amendment of Complaint to Correct Failure to Sign Complaint. - Forty-two days after the original complaint was filed, the plaintiff's counsel realized that the complaint was unsigned, undated, and unverified and filed an amendment to the complaint, under G.S. 1A-1, N.C. R. Civ. P. 15(a), which corrected the error before any responsive pleading was filed. The plaintiff's prompt remedial measures of filing an amended, signed complaint once the plaintiff discovered the mistake conferred subject matter jurisdiction on the trial court to enable it to deal with the substantive issues raised in the pleadings and were sufficient under G.S. 1A-1, N.C. R. Civ. P. 11 and 15 to prevent the original pleading from being stricken and the action from being dismissed. Estate of Livesay v. Livesay, 219 N.C. App. 183, 723 S.E.2d 772 (2012).

Notice Not Timely Filed. - While errors in filing the notice of appeal by email, failing to include a certificate of service, and failing to designate the court to which the case was being appealed did not warrant dismissal, dismissal was warranted because there was no indication that plaintiff's notice of appeal was timely filed, which was a jurisdictional error. Bradley v. Cumberland Cty., 262 N.C. App. 376, 822 S.E.2d 416 (2018), review denied, 372 N.C. 360, 828 S.E.2d 156, 2019 N.C. LEXIS 558 (2019).

Applied in Bradley v. Bradley, 12 N.C. App. 8, 182 S.E.2d 201 (1971); Gower v. Aetna Ins. Co., 13 N.C. App. 368, 185 S.E.2d 722 (1972); Atkinson v. Tarheel Homes & Realty Co., 14 N.C. App. 638, 188 S.E.2d 703 (1972); Swenson v. All Am. Assurance Co., 33 N.C. App. 458, 235 S.E.2d 793 (1977); In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978); Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp., 36 N.C. App. 778, 245 S.E.2d 234 (1978); In re Albemarle Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818 (1979); Atkins v. Nash, 61 N.C. App. 488, 300 S.E.2d 880 (1983); White v. Graham, 72 N.C. App. 436, 325 S.E.2d 497 (1985); Adams v. Brooks, 73 N.C. App. 624, 327 S.E.2d 19 (1985); Smith v. Starnes, 74 N.C. App. 306, 328 S.E.2d 20 (1985); Harris v. Scotland Neck Rescue Squad, Inc., 75 N.C. App. 444, 331 S.E.2d 695 (1985); Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557 (1986); In re Lynette H., 323 N.C. 598, 374 S.E.2d 272 (1988); State ex rel. Eure v. Lawrence, 93 N.C. App. 446, 378 S.E.2d 207 (1989); City of Raleigh v. College Campus Apts., Inc., 94 N.C. App. 280, 380 S.E.2d 163 (1989); Sellers v. High Point Mem. Hosp., 97 N.C. App. 299, 388 S.E.2d 197, cert. denied, 326 N.C. 598, 393 S.E.2d 882 (1990); Chaplain v. Chaplain, 101 N.C. App. 557, 400 S.E.2d 121 (1991); In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003); Spencer v. Town of Chapel Hill, 290 F. Supp. 2d 655 (M.D.N.C. 2003); Bryson v. Cort, 193 N.C. App. 532, 668 S.E.2d 84 (2008).

Cited in Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975); Cogdill v. Scates, 290 N.C. 31, 224 S.E.2d 604 (1976); McCoy v. McCoy, 29 N.C. App. 109, 223 S.E.2d 513 (1976); Byrd v. Trustees of Watts Hosp., 29 N.C. App. 564, 225 S.E.2d 329 (1976); Benson v. Benson, 39 N.C. App. 254, 249 S.E.2d 877 (1978); Troy's Stereo Ctr., Inc. v. Hodson, 39 N.C. App. 591, 251 S.E.2d 673 (1979); Hall v. Lassiter, 44 N.C. App. 23, 260 S.E.2d 155 (1979); Williams v. Burroughs Wellcome Co., 46 N.C. App. 459, 265 S.E.2d 633 (1980); Collins v. Edwards, 54 N.C. App. 180, 282 S.E.2d 559 (1981); Stevens v. Johnson, 50 N.C. App. 536, 274 S.E.2d 281 (1981); Terry v. Lowrance Hosp., 54 N.C. App. 663, 284 S.E.2d 128 (1981); Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982); Evans v. Chipps, 56 N.C. App. 232, 287 S.E.2d 426 (1982); Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983); Roshelli v. Sperry, 63 N.C. App. 509, 305 S.E.2d 218 (1983); Berger v. Berger, 67 N.C. App. 591, 313 S.E.2d 825 (1984); Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786 (1984); Jerson v. Jerson, 68 N.C. App. 738, 315 S.E.2d 522 (1984); Estrada v. Burnham, 74 N.C. App. 557, 328 S.E.2d 611 (1985); Smith v. Price, 74 N.C. App. 413, 328 S.E.2d 811 (1985); Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191 (1985); In re King, 79 N.C. App. 139, 339 S.E.2d 87 (1986); Huggins v. Hallmark Enters., Inc., 84 N.C. App. 15, 351 S.E.2d 779 (1987); Pinewood Manor Mobile Homes, Inc. v. North Carolina Manufactured Hous. Bd., 84 N.C. App. 564, 353 S.E.2d 231 (1987); Fox v. Barrett, 90 N.C. App. 135, 367 S.E.2d 412 (1988); Kohn v. Mug-A-Bug, 94 N.C. App. 594, 380 S.E.2d 548 (1989); Porter v. Groat, 713 F. Supp. 893 (M.D.N.C. 1989); Morrow v. Morrow, 103 N.C. App. 787, 407 S.E.2d 286 (1991); Lusk v. Crawford Paint Co., 106 N.C. App. 292, 416 S.E.2d 207 (1992); Saieed v. Bradshaw, 110 N.C. App. 855, 431 S.E.2d 233 (1993); Clark v. Velsicol Chem. Corp., 110 N.C. App. 803, 431 S.E.2d 227 (1993); Food Serv. Specialists v. Atlas Restaurant Mgt., Inc., 111 N.C. App. 257, 431 S.E.2d 878 (1993); In re Estate of Neisen, 114 N.C. App. 82, 440 S.E.2d 855; Roberts v. Young, 120 N.C. App. 720, 464 S.E.2d 78 (1995); Walker Frames v. Shively, 123 N.C. App. 643, 473 S.E.2d 776 (1996); Timour v. Pitt County Mem. Hosp., 131 N.C. App. 548, 508 S.E.2d 329 (1998); Howard, Stallings, From & Hutson, P.A. v. Douglas, 143 N.C. App. 122, 545 S.E.2d 470 (2001); State ex rel. Barker v. Ellis, 144 N.C. App. 135, 547 S.E.2d 166, cert. denied, 354 N.C. 74, 553 S.E.2d 204 (2001); Conner Bros. Mach. Co. v. Rogers, 177 N.C. App. 560, 629 S.E.2d 344 (2006); Baldwin v. Wilkie, 179 N.C. App. 567, 635 S.E.2d 431 (2006), review denied, 361 N.C. 353, 645 S.E.2d 764, (2007); Carlton v. Melvin, 205 N.C. App. 690, 697 S.E.2d 360 (2010); Hammond v. Hammond, 209 N.C. App. 616, 708 S.E.2d 74 (2011); Reese v. Brooklyn Vill., LLC, 209 N.C. App. 636, 707 S.E.2d 249 (2011); Stinchcomb v. Presbyterian Med. Care Corp., 211 N.C. App. 556, 710 S.E.2d 320 (2011), review denied 717 S.E.2d 376, 2011 N.C. LEXIS 670 (N.C. 2011); Carle v. Wyrick, Robbins, Yates & Ponton, LLP, 225 N.C. App. 656, 738 S.E.2d 766 (2013), review
denied, 367 N.C. 236, 748 S.E.2d 320, 2013 N.C. LEXIS 997 (2013); McMillan v. Ryan Jackson Props., LLC, 232 N.C. App. 35, 753 S.E.2d 373 (2014).

II. COMMENCEMENT BY ISSUANCE OF SUMMONS.

The intent of this rule is to require plaintiff to alert defendant by giving preliminary notice of the nature of the claim and the purpose of the suit; the ultimate factual averments will follow in a complaint to be filed later. Morris v. Dickson, 14 N.C. App. 122, 187 S.E.2d 409 (1972).

The requirement that a summons be issued and served in accordance with G.S. 1A-1, Rule 4, along with the court's order granting permission to file a complaint within 20 days, is intended to ensure that the defendant will have notice of the commencement of an action against him. Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986).

This rule appears to incorporate the provisions of former G.S. 1-121. Morris v. Dickson, 14 N.C. App. 122, 187 S.E.2d 409 (1972).

And Procedure Under This Rule and Former Statute Is Similar. - Although this rule is phrased differently from former G.S. 1-121, the procedure for serving a summons with an order allowing a delay in filing the complaint is very similar under both the rule and the former statute. Hasty v. Carpenter, 40 N.C. App. 261, 252 S.E.2d 274, cert. denied, 297 N.C. 453, 256 S.E.2d 806 (1979).

In order for a summons to serve as proper notification, it must be issued and served in the manner prescribed by statute. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Unbroken Chain of Summonses Needed. - Because plaintiff failed to serve defendants with process within the time allowed and did not create an unbroken chain of summonses referring back to the original summons as required by N.C. R. Civ. P. 3 and 4, her action was properly dismissed as time-barred under G.S. 1-52. Robertson v. Price, 187 N.C. App. 180, 652 S.E.2d 352 (2007).

Failure to Serve Complaint Does Not Result in Abatement. - This rule provides that the action shall abate if the complaint is not filed within the period specified in the clerk's order. It does not provide that the action shall abate if the complaint is not served on the defendant. Hasty v. Carpenter, 40 N.C. App. 261, 252 S.E.2d 274, cert. denied, 297 N.C. 453, 256 S.E.2d 806 (1979).

But Defendant Need Not Plead Until Complaint Is Served. - This rule has not overruled Braswell v. Atlantic Coast Line R.R., 233 N.C. 640, 65 S.E.2d 226 (1951), which held that when the complaint is filed within the prescribed time the action is not subject to be dismissed, but a defendant is not compelled to plead until the complaint is served on him, and no default judgment may be had until the complaint is served. Hasty v. Carpenter, 40 N.C. App. 261, 252 S.E.2d 274, cert. denied, 297 N.C. 453, 256 S.E.2d 806 (1979).

The order under this rule extending time for filing the complaint need not be served with each subsequent summons to constitute effective process. G.S. 1A-1, Rule 4 does ordinarily require the service of the summons and the complaint together. By extension, then, service "in accordance with the provisions of G.S. 1A-1, Rule 4" would require service of the summons and order together. However, to continue to slavishly apply this rule long after filing of the complaint would entirely ignore the purpose of the rules and the functions of the various forms of process. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Validity of Order Extending Time for Filing Complaint. - An order extending the time within which to file a complaint was not rendered invalid by the fact that the application for the extension did not request permission to file the complaint "within 20 days" and that the order did not state the nature and purpose of the action. Morris v. Dickson, 14 N.C. App. 122, 187 S.E.2d 409 (1972).

Summons Issued Prior to Grant of Extension. - An action is not commenced under the delayed service provision of this rule until (1) an application is made to the court for permission to file a complaint within 20 days, (2) the court enters an order granting the extension, and (3) a summons is issued pursuant to that order. Hence, a summons issued on the day that an application for extension was filed, but not issued pursuant to an order entered by the clerk granting the application for extension, did not commence plaintiff's action under G.S. 95-243 for retaliatory employment discrimination for purposes of the statute of limitations. Telesca v. SAS Inst., Inc., 133 N.C. App. 653, 516 S.E.2d 397, cert. denied, 351 N.C. 120, 540 S.E.2d 749 (1999).

An alias or pluries summons is not ineffective where it does not refer back to the process next preceding it, the delayed service of complaint, but refers instead to the original summons. The General Assembly, by adopting a less stringent standard of service for complaints filed under the late-filing provisions of this rule, clearly did not intend the delayed service of the complaint to be a link in the chain of process. This is especially true in light of the fact that the present option of service by mail for the late complaint constitutes a departure from the former practice requiring formal service. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Designation of incorrect county in summons rendered the summons voidable rather than void. The incorrect county designation amounted to an irregularity or error in form which could be corrected by amendment, and the trial court erred in granting defendant's motion to dismiss plaintiff's claim due to the incorrect designation of the county on the civil summons form. Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Application for Extension of Time to File Gave Proper Notice of Wrongful Death Action. - Trial court erred in granting a city's motion to dismiss an administratrix's wrongful death action on the ground that it was barred by the statute of limitations, G.S. 1-53(4), because an application for an extension of the time to file the complaint pursuant to N.C. R. Civ. P. 3 gave the city notice that the lawsuit involved the death of the decedent when fire department employees allegedly failed to provide appropriate emergency care, and the administratrix's participation in the lawsuit once she became administratrix was sufficient to ratify the filing of the summons and application for extension of time; under N.C. R. Civ. P. 17(a), that ratification related back to the filing of the summons, rendering the wrongful death action timely. Estate of Tallman v. City of Gastonia, 200 N.C. App. 13, 682 S.E.2d 428 (2009).

III. DECISIONS UNDER PRIOR LAW.

.

Editor's Note. - The cases cited below were decided under former G.S. 1-14, 1-88 and 1-89.

As to meaning of word "issue" in relation to summons as affecting commencement of actions, see Williams v. Bray, 273 N.C. 198, 159 S.E.2d 556 (1968), decided under former G.S.1-88.

The issuance of a summons is not a judicial act which must be performed by the clerk in person, but is rather a ministerial act which may be done in his name by a deputy. Beck v. Voncannon, 237 N.C. 707, 75 S.E.2d 895 (1953), decided under former G.S.1-89.

When Summons Sufficient to Confer Jurisdiction. - To confer jurisdiction, the process relied on must in fact issue from the court and show upon its face that it emanated therefrom and was intended to bring the defendant into court to answer the complaint of the plaintiff. And when this is clearly shown by evidence appearing on the face of the summons, ordinarily the writ will be deemed sufficient to meet the requirements of due process and bring the party served into court, and formal defects appearing on the face of the record will be treated as nonjurisdictional irregularities, subject to amendment. If, however, there is nothing upon the face of the paper which stamps upon it unmistakably an official character, it is not a defective summons, but no summons at all. Beck v. Voncannon, 237 N.C. 707, 75 S.E.2d 895 (1953), decided under former G.S. 1-89.

If there has been no service of summons and no waiver by appearance, the court has no jurisdiction, and any judgment rendered would be void. B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570 (1966), decided under former G.S. 1-14.

But Personal Service, Acceptance of Service or Voluntary Appearance Gives Jurisdiction. - When the defendant has been duly served with summons personally within the State, or has accepted service, or has voluntarily appeared in court, jurisdiction over the person exists, and the court may proceed to render a personal judgment against the defendant. B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570 (1966), decided under former G.S. 1-14.

Conflict of Laws. - In an action in a United States district court in North Carolina for wrongful death under the Louisiana wrongful death statute, the procedural law of North Carolina and not the Federal Rules of Civil Procedure determined when the action was commenced. Rios v. Drennan, 209 F. Supp. 927 (E.D.N.C. 1962), decided under former G.S. 1-14.

Opinions of Attorney General

In order for a court to revoke an irrevocable preneed contract a civil action must be initiated by the filing of a complaint with the necessary parties being the purchaser, the preneed funeral home license and, if other than the purchaser, the preneed funeral contract beneficiary. See opinion of Attorney General to Mr. William R. Hoke, Attorney for the North Carolina State Board of Mortuary Science, - N.C.A.G. - (November 3, 1995). United States Bank Nat'l Ass'n v. Pinkney, 369 N.C. 723, 800 S.E.2d 412 (2017);.

I. IN GENERAL.

Editor's Note. - Many of the cases below were decided prior to the 2001 amendment of Rule 4(c), which changed the time allowed for service of a summons under Rule 4(j)(1) a and b from 30 to 60 days after the date of issuance.

Due process requires that a party be properly notified of the proceeding against him. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

The purpose of service of a summons is to give notice to the party against whom the proceeding or action is commenced, and any notification which reasonably accomplishes that purpose answers the claims of law and justice. Farr v. City of Rocky Mount, 10 N.C. App. 128, 177 S.E.2d 763 (1970), cert. denied, 277 N.C. 725, 178 S.E.2d 831 (1971).

The purpose of a summons is to give notice to a person to appear at a certain place and time to answer a complaint against him. Wearring v. Belk Bros., 38 N.C. App. 375, 248 S.E.2d 90 (1978).

A suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice; and the purpose of process is to bring parties into court. If it names them in such terms that every intelligent person understands who is meant, it has fulfilled its purpose. Harris v. Maready, 64 N.C. App. 1, 306 S.E.2d 799 (1983), rev'd on other grounds, 311 N.C. 536, 319 S.E.2d 912 (1984).

The G.S. 1A-1, Rule 3 requirement that a summons be issued and served in accordance with this rule, along with the court's order granting permission to file a complaint within 20 days, is intended to ensure that the defendant will have notice of the commencement of an action against him. Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986).

Applicability of Federal Rule in Diversity Cases. - North Carolina's rules governing the issuance of a summons and the discontinuance of a lawsuit are procedural; therefore, because federal procedural rules govern diversity cases, Fed. R. Civ. P. 4 applied to plaintiff's diversity suit, and she had 120 days to have a summons issued and served upon a defendant rather than the five days allowed under N.C. R. Civ. P. 4. Melvin v. Wal-Mart Stores, Inc., 338 F. Supp. 2d 622 (M.D.N.C. 2004).

The primary purpose of Rule 4 of the Federal Rules of Civil Procedure, which is similar to this rule, is to provide the mechanisms for bringing notice of the commencement of an action to a defendant's attention and to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit. Wiles v. Welparnel Constr. Co., 295 N.C. 81, 243 S.E.2d 756 (1978).

The purpose behind this rule and G.S. 1-52(5) is to give notice to the party against whom an action is commenced within a reasonable time after the accrual of the cause of action. Adams v. Brooks, 73 N.C. App. 624, 327 S.E.2d 19 (1985), overruled on other grounds, Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986).

Construction With Other Rules. - N.C. R. Civ. P. 3 states that the summons and complaint shall be served in accordance with the statute of limitations as provided in N.C. R. Civ. P. 4, but the rule does not state that the failure to do so renders a suit abated or the commencement void. Melvin v. Wal-Mart Stores, Inc., 338 F. Supp. 2d 622 (M.D.N.C. 2004).

Special Proceedings. - A summons is required for all contested special proceedings. Charns v. Brown, 129 N.C. App. 635, 502 S.E.2d 7, cert. denied, 349 N.C. 228, 515 S.E.2d 701 (1998).

Compliance with Statutory Requirements Essential to Valid Service. - Where a statute provides for service of summons or notice in the progress of a cause by certain persons or by designated methods, the specified requirements must be complied with or there is no valid service. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977); Cromer v. Cromer, 49 N.C. App. 403, 271 S.E.2d 541 (1980), rev'd on other grounds, 303 N.C. 307, 278 S.E.2d 518 (1981).

Process must be issued and served in the manner prescribed by statute, and failure to do so makes the service invalid even though a defendant had actual notice of the lawsuit. Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982).

If a statute specifies that certain requirements must be complied with in the process of serving summons, failure to follow these requirements results in a failure of service. Park v. Sleepy Creek Turkeys, Inc., 60 N.C. App. 545, 299 S.E.2d 670 (1983).

In order for a summons to serve as proper notification, it must be issued and served in the manner prescribed by statute. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Failure to serve process in the manner prescribed by statute makes the service invalid, even though a defendant has actual notice of the lawsuit. Hunter v. Hunter, 69 N.C. App. 659, 317 S.E.2d 910 (1984). But see Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

When service of process is made pursuant to the forum state's law, both the service of process requirements and the personal jurisdiction requirements of state law must be met. Waller v. Butkovich, 584 F. Supp. 909 (M.D.N.C. 1984).

Although actual notice given in a manner other than that prescribed by statute cannot supply constitutional validity, if it names the parties in such terms that every intelligent person understands who is meant, it has fulfilled its purpose; and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

Summons delivered to each of two defendants directing the other defendant, rather than the defendant to whom delivered, to appear and answer was not service in accord with the statutory rules and as such was fatally defective, and no jurisdiction over defendants was obtained. Although both defendants may have had actual notice of the lawsuit, such notice cannot supply constitutional validity to service unless the service is in the manner prescribed by statute. Stone v. Hicks, 45 N.C. App. 66, 262 S.E.2d 318 (1980).

Summons Must Be Served Within 30 Days (Now 60 Days). - Under this rule, a summons must be served within 30 days (now 60 days) of its issuance. Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635, cert. denied, 332 N.C. 480, 420 S.E.2d 826 (1992).

Trial court erred in denying the father's motion to set aside an order terminating his parental rights; since the father was not served within the time limit for serving process once a summons was issued and no extension of time was obtained, the trial court did not obtain personal jurisdiction over him in a case where the mother filed a petition to terminate the father's parental rights. In re A.B.D., 173 N.C. App. 77, 617 S.E.2d 707 (2005).

Basis for 30 Day (Now 60 Day) Delivery. - This rule does not require delivery of the summons to the sheriff within 30 (now 60) days of its issuance in order that the summons may later serve as a basis for the issuance of an alias or pluries summons. Robinson v. Parker, 124 N.C. App. 164, 476 S.E.2d 406 (1996), decided prior to 2001 amendment to subsection (c).

Multiple Attempts at Service Within 30 (now 60) Days Permitted. - A successful service of process occurring within 30 days (now 60 days) after issuance of a summons is valid even if there has been a prior unsuccessful attempt at serving that same summons. An endorsement, alias summons or pluries summons are not necessary. Shiloh Methodist Church v. Keever Heating & Cooling Co., 127 N.C. App. 619, 492 S.E.2d 380 (1997), decided prior to 2001 amendment to subsection (c).

Where summons is not served within the statutory period, it loses its vitality and does not confer jurisdiction over the person of the defendant. There is no statutory authority for service of summons after the date fixed for its return. Cole v. Cole, 37 N.C. App. 737, 247 S.E.2d 16 (1978).

A summons must be served within 30 days (now 60 days) after the date of the issuance of the summons. However, the failure to make service within the time allowed does not invalidate the summons. The action may continue to exist as to the unserved defendant by two methods. First, within 90 days after the issuance of the summons or the date of the last prior endorsement, the plaintiff may secure an endorsement upon the original summons for an extension of time within which to complete service of process. Secondly, the plaintiff may sue out an alias or pluries summons at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses or within 90 days of the last prior endorsement. If the 90-day period expires without the summons being served within the first 30 days (now 60 days) or revived within the remaining 60 days (now 30 days), the action is discontinued. If a new summons is issued, it begins a new action. County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 323 S.E.2d 458 (1984), decided prior to 2001 amendment to subsection (c).

A summons not served within 30 days (now 60 days) loses its vitality and becomes functus officio, and service obtained thereafter does not confer jurisdiction on the trial court over the defendant. Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635, cert. denied, 332 N.C. 480, 420 S.E.2d 826 (1992).

Although a summons not served within 30 days (now 60 days) becomes dormant and unservable, under Rule 4(c) it is not invalidated nor is the action discontinued. Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635, cert. denied, 332 N.C. 480, 420 S.E.2d 826 (1992).

Failure to Serve Summons in Original Action Bars Subsequent Action. - Defective service in the alleged accident victims' original negligence action under G.S. 1A-1 and N.C. R. Civ. P. 4 resulted in the victims' subsequent refiled action, despite the voluntary dismissal by the victims of the original action under G.S. 1A-1 and N.C. R. Civ. P. 41(a) being brought after the statute of limitations under G.S. 1-52(16) ran. Camara v. Gbarbera, 191 N.C. App. 394, 662 S.E.2d 920 (2008), review denied, 363 N.C. 122, 675 S.E.2d 38 (2009).

Tolling of Statute of Limitations. - Because the driver of an automobile was never properly served with the accident victim's first complaint under G.S. 1A-1, N.C. R. Civ. P. 4, the victim's voluntary dismissal without prejudice did not toll the statute of limitations under G.S. 1-52(5). Lawrence v. Sullivan, 192 N.C. App. 608, 666 S.E.2d 175 (2008).

Extension of Time. - G.S. 1A-1, N.C. R. Civ. P. 6(b) grants the trial courts broad authority to extend any time period specified in any of the Rules of Civil Procedure for the doing of any act, after expiration of such specified time, upon a finding of excusable neglect; therefore, pursuant to Rule 6(b) the trial courts may extend the time for service of process under G.S. 1A-1, N.C. R. Civ. P. 4(c). Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 606 S.E.2d 407 (2005).

Trial court had the discretion to allow individuals an extension of time to serve a summons on a corporation because the alias and pluries summons was merely dormant, and not expired, when the individuals effectuated service. Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 606 S.E.2d 407 (2005).

Because city officials were not responsible for arrestee's failure to extend the life of the summonses, they were not estopped from asserting the defense of insufficient service of process; the arrestees had notice that the officials' motions to dismiss could be filed because they were entered pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(5). Washington v. Cline, 230 N.C. App. 396, 750 S.E.2d 843 (2013), sub. op. 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (N.C. Ct. App. 2014).

Section Not Applicable to Termination of Parental Right Proceeding Begun Within Two Years of Service. - Because the first termination of parental rights action against the mother had been dismissed, service in the instant action was proper under G.S. 1A-1-5, not G.S. 1A-1-4, as it was made less than two years after the original action began. In re P.L.P., 173 N.C. App. 1, 618 S.E.2d 241 (2005), aff'd, 360 N.C. 361, 625 S.E.2d 779 (2006).

Failure to Deliver Summons to Sheriff. - There is no requirement under this rule that plaintiffs must prove good faith, excusable neglect, or even give any reason at all to justify their failure to promptly deliver the summons to the sheriff. Robinson v. Parker, 124 N.C. App. 164, 476 S.E.2d 406 (1996), decided prior to 2001 amendment to subsection (c).

Five Day Time Limit for Issuance of Summons Under Section (a). - The purpose of the provision in section (a) of this rule, requiring that the summons be issued "in any event within five days," and the legislative intent as reflected in the comment following this rule, was to establish an outer limit of five days after filing the complaint for issuance of summons. Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982).

Where a complaint has been filed and proper summons does not issue within the five days allowed under this rule, the action is deemed never to have commenced. Everhart v. Sowers, 63 N.C. App. 747, 306 S.E.2d 472 (1983), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Although section (a) is clear and unambiguous in its requirement that upon the filing of the complaint, summons shall be issued forthwith, and in any event, within five days, the North Carolina Supreme Court has recognized that a properly issued and served second summons can revive and commence a new action on the date of its issuance. Stokes v. Wilson & Redding Law Firm, 72 N.C. App. 107, 323 S.E.2d 470 (1984), cert. denied, 313 N.C. 612, 332 S.E.2d 83 (1985).

Under section (a) of this rule, a summons must be issued within five days of the filing of the complaint. Where a complaint has been filed and a proper summons does not issue within the five days allowed under the rule, the action is deemed never to have commenced. County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 323 S.E.2d 458 (1984).

Because plaintiff submitted copies of original summonses that were issued on the day that plaintiff's complaint was originally filed, there was no merit to defendants' argument that jurisdiction was never conferred due to failure to obtain summonses within five days as required by G.S. 1A-1, N.C. R. Civ. P. 4(a). Patterson v. Brown, - F. Supp. 2d - (W.D.N.C. Jan. 23, 2008).

Irregularity in Summons. - Where there was no confusion as to the identity of the actual defendant, as evidenced by the complaint and the caption of the summons, a slight irregularity was not fatal because the summons was properly directed to the city, and the city was properly named as the defendant. Steffey v. Mazza Constr. Group, Inc., 113 N.C. App. 538, 439 S.E.2d 241, cert. improvidently granted and appeal dismissed, 339 N.C. 734, 455 S.E.2d 155 (1995).

Although a summons in a juvenile neglect proceeding was not properly signed pursuant to G.S. 7B-406 and 1A-1, N.C. R. Civ. P. 4(b), only personal jurisdiction, rather than subject matter jurisdiction, was implicated, and where the parents appeared in the neglect proceeding and they failed to object thereto, such defense was waived; a termination of parental rights in reliance on the neglect order was valid. In re K.J.L., 363 N.C. 343, 677 S.E.2d 835 (June 18, 2009).

City manager abandoned his argument that the title of the cause in the summons was defective because it did not list all defendants and did not mirror the title of the cause in the complaint because the manager cited to no authority for the proposition that those characteristics rendered the title of the cause in the summons defective, Washington v. Cline, 230 N.C. App. 396, 750 S.E.2d 843 (2013), sub. op. 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (N.C. Ct. App. 2014).

Merits Considered Where Dismissal for Failure to Timely Serve Notice Not Assigned as Error. - Even though the dismissal of a case for failure to timely serve notice of the lawsuit under G.S. 1A-1-4 was not assigned as an error, the merits of a patient's challenge were considered as the patient challenged the dismissal for failure to prosecute under G.S. 1A-1-41(b). Stocum v. Oakley, 185 N.C. App. 56, 648 S.E.2d 227 (2007), review denied, 362 N.C. 372, 662 S.E.2d 394 (2008).

Service on Thirty-first Day Insufficient Under Section (c). - A pluries summons which was issued on June 16, 1977, and served on defendants on July 19, 1977, was insufficient to bring defendants into court, and entry of default on them was therefore invalid, as service was made on the thirty-first day, as computed under G.S. 1A-1, Rule 6, rather than within 30 days (now 60 days), as required by section (c) of this rule. Carolina Narrow Fabric Co. v. Alexandria Spinning Mills, Inc., 42 N.C. App. 722, 257 S.E.2d 654 (1979), decided prior to 2001 amendment to subsection (c).

Presumption of Service from Return of Officer. - When the return shows legal service by an authorized officer, nothing else appearing, the law presumes service. The service is deemed established unless, upon motion in the cause, the legal presumption is rebutted by evidence upon which a finding of nonservice is properly based. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977).

Return Not Set Aside on Testimony of One Witness. - An officer's return or a judgment based thereon may not be set aside unless the evidence consists of more than a single contradictory affidavit or the contradictory testimony of one witness and is clear and unequivocal. This does not place an undue burden on a person who in truth has not been legally served. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977).

Where defendant submitted only one witness affidavit disputing service of process, that one affidavit was insufficient to rebut the presumption that a return under G.S. 1A-1-4(j)(1)a. of valid service from a sheriff's deputy was proof of valid service. Dismissal of plaintiff's complaint under G.S. 1A-1-12(b)(4), (5), for insufficient service was improper. Saliby v. Conners, 171 N.C. App. 435, 614 S.E.2d 416 (2005).

Nor on Affidavit of Person Allegedly Served. - The sheriff 's return imports truth, and it cannot be overthrown or shown to be false by the affidavit, merely, of the person upon whom the service is alleged to have been made. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977).

Attack on Return Failing to Show Where Papers Were Left. - Homeowners were entitled to attack foreclosure proceeding against their property either by a motion in the cause or by an independent action where the officer's return was insufficient on its face to show service upon homeowner husband in that the return did not show the place where the papers were left. However, such defect was not necessarily fatal to the foreclosure proceedings, and the matter would be remanded for the trial judge to determine within his discretion whether the sheriff 's return ought to be amended so as to comport with facts regarding the place and manner of service. Hassell v. Wilson, 301 N.C. 307, 272 S.E.2d 77 (1980).

Sheriff may be permitted to amend proof of service unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. Williams v. Burroughs Wellcome Co., 46 N.C. App. 459, 265 S.E.2d 633 (1980).

A court may obtain personal jurisdiction over a defendant only by the issuance of summons and service of process by one of the statutorily specified methods. Glover v. Farmer, 127 N.C. App. 488, 490 S.E.2d 576 (1997), cert. denied, 347 N.C. 575, 502 S.E.2d 590 (1998).

Mistake in Name of Party Not Always Fatal. - Although service of process should correctly state the name of the parties, a mistake in the names is not always a fatal error, and as a general rule a mistake in the given name of a party who is served will not deprive the court of jurisdiction. Names are to designate persons, and where the identity is certain a variance in the name is immaterial. Also, error or defects in the pleadings not affecting substantial rights are to be disregarded. Jones v. Whitaker, 59 N.C. App. 223, 296 S.E.2d 27 (1982).

If the misnomer or misdescription does not leave in doubt the identity of the party intended to be sued, or even where there is room for doubt as to identity, if service of process is made on the party intended to be sued, the misnomer or misdescription may be corrected by amendment at any stage of the suit. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

Substitution in the case of a misnomer is not considered a substitution of new parties but merely a correction in the description of the party or parties actually served. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

When a customer sought relation back of the customer's amended negligence complaint against a store to name the proper owner, the customer's claim that the correct owner was properly served and would not be prejudiced by relation back failed because this was not a case in which the proper legal name of an entity with multiple names was substituted. Williams v. Advance Auto Parts, Inc., 251 N.C. App. 712, 795 S.E.2d 647 (2017), review denied, 2017 N.C. LEXIS 325 (2017).

Deletion of "P.A." at end of law firm's name is a correction in the description of a party actually served instead of a substitution of new parties. Certainly the misdescription of the law firm as a "P.A." did not leave in doubt the identity of the party intended to be sued. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

Correction of Mistake by Serving Officer. - The fact that the summons and complaint were directed to "Sherrie Sapp Whitaker" and the deputy sheriff changed the name from "Sherrie" to "Shirley" when he served the defendant was of no legal significance since the proper party was actually served. Under these circumstances, the defendant could not have suffered any prejudice. All that was required was that the proper party be properly served. Jones v. Whitaker, 59 N.C. App. 223, 296 S.E.2d 27 (1982).

Notice of Additional Claims to Party in Default. - A party who is in default for failure to appear is ordinarily not entitled to notice of additional pleadings in the case, but where a new or additional claim is asserted, service on the party, even though in default, is required in the same manner as provided by this rule for the service of summons. First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117 (1986).

Plaintiff who defaulted on original complaint which alleged that she was a resident of this State was entitled to notice of subsequent motion to declare that none of her property was exempt by virtue of non-residency, and an opportunity to contest the factual allegations as to her non-residency. Where she was given neither notice nor an opportunity to be heard, in violation of statutory and constitutional provisions, the order declaring that her property was not exempt was invalid, and she was entitled to relief therefrom pursuant to G.S. 1A-1, Rule 60(b)(4). First Union Nat'l Bank v. Rolfe, 83 N.C. App. 625, 351 S.E.2d 117 (1986).

It is the service of process and not the return of the officer which confers jurisdiction on the court. Parris v. Garner Com. Disposal, Inc., 40 N.C. App. 282, 253 S.E.2d 29, cert. denied, 297 N.C. 455, 256 S.E.2d 808 (1979).

Challenge to Court's Determination of Jurisdiction and Authority. - When a defendant challenges the authority of a court on the ground that it has not acquired personal jurisdiction, the court's determination of its own jurisdiction may be questioned only by appeal and not collaterally. Gower v. Aetna Ins. Co., 281 N.C. 577, 189 S.E.2d 165 (1972).

A judgment by a court determining its statutory authority to dismiss an action in such a way as not to bar further litigation on the merits therein may be questioned only by appeal and not collaterally. Gower v. Aetna Ins. Co., 281 N.C. 577, 189 S.E.2d 165 (1972).

As to service on a nonresident motor vehicle operator involved in an accident under former subsection (j)(9) of this rule or G.S. 1-105, see House v. House, 22 N.C. App. 686, 207 S.E.2d 339 (1974).

Service by Person in Foreign Country. - Where no affidavit was offered as required by G.S. 1-75.10, the plaintiff was allowed to prove service by mail by "a certificate of addressing and mailing by the clerk of court" to enable the German court to obtain personal jurisdiction over defendant and the North Carolina trial court was, under comity of nations, within its power to enforce the German court's order determining defendant to be the father and ordering him to pay child support. State ex rel. Desselberg v. Peele, 136 N.C. App. 206, 523 S.E.2d 125 (1999), cert. denied, 351 N.C. 479, 543 S.E.2d 509 (2000).

In a child custody action where the mother was residing in Japan, given that the ability to effect service of process in Japan was exclusively a function of the Japanese judiciary, the father had no practical means to effect service upon the mother within the 60-day time constraint of G.S. 1A-1-4(c); therefore, Rule 4(c)'s requirement of service of the summons within 60 days after its issuance did not control the mother's service, but rather the requirements of Rule 4 were harmonized with the Hague Service Convention while preserving the mother's due process rights. Hammond v. Hammond, 209 N.C. App. 616, 708 S.E.2d 74 (2011).

In a child custody action where the mother was residing in Japan, the trial court's exercise of personal jurisdiction over the mother did not offend her due process rights and the trial court did not err in denying her motion to dismiss for lack of personal jurisdiction where the father made a good faith effort to comply with the service of process requirements of G.S. 1A-1-4(j3) and the Hague Service Convention. Hammond v. Hammond, 209 N.C. App. 616, 708 S.E.2d 74 (2011).

What Service Required Where Party Intervenes. - An intervenor party who is granted permission to intervene pursuant to G.S. 1A-1, Rule 24(b)(2) is not required to then issue a summons and complaint pursuant to this rule. The service, pursuant to G.S. 1A-1, Rule 5, of the motion to intervene accompanied with the complaint is sufficient service upon the party against whom relief is sought or denied in the intervenor's pleading and is sufficient process to acquire jurisdiction over the party if all other requisites for jurisdiction over the party are met. Kahan v. Longiotti, 45 N.C. App. 367, 263 S.E.2d 345, cert. denied, 300 N.C. 374, 267 S.E.2d 675 (1980), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).

Service of the motion and proposed complaint pursuant to G.S. 1A-1, Rule 5 is sufficient service of process on defendant where the intervenor's complaint is not entirely independent of the original complaint and there is no objection that the intervenor's complaint could not be properly served on defendant in this jurisdiction. Kahan v. Longiotti, 45 N.C. App. 367, 263 S.E.2d 345, cert. denied, 300 N.C. 374, 267 S.E.2d 675 (1980), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).

A party who intervenes pursuant to G.S. 1A-1, Rule 24 is not required to issue a summons and complaint pursuant to this rule. In re Baby Boy Shamp, 82 N.C. App. 606, 347 S.E.2d 848 (1986), cert. denied, 318 N.C. 695, 351 S.E.2d 750 (1987).

Service of Notice of Motion for Enforcement of Alimony. - A plaintiff seeking enforcement of an order for alimony need not serve defendant with a new summons. Simply serving him with notice of the motion for enforcement is sufficient. Unless otherwise ordered by the court, G.S. 1A-1, Rule 5(b) allows service of notice of written motions by service on defendant's attorney of record. Miller v. Miller, 98 N.C. App. 221, 390 S.E.2d 352 (1990).

Notice Held Insufficient. - Institution of an action for "alimony without divorce" did not constitute notice that plaintiff was seeking a determination of the respective rights of plaintiff and defendant in a surplus that might result in the event of a foreclosure of a deed of trust. Koob v. Koob, 283 N.C. 129, 195 S.E.2d 552 (1973).

The order under G.S. 1A-1, Rule 3 extending time for filing the complaint need not be served with each subsequent summons to constitute effective process. This rule does ordinarily require the service of the summons and the complaint together. By extension, then, service "in accordance with the provisions of Rule 4" would require service of the summons and order together. However, to continue to slavishly apply this rule long after filing of the complaint would entirely ignore the purpose of the rules and the functions of the various forms of process. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

G.S. 1A-1, Rule 3 requires only filing of the complaint, not service, within the 20-day period. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

The delayed service of complaint does not constitute a link in the chain of process. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Delay in Substituting Correct Name Not Fatal. - Where plaintiffs sued and served the appropriate party, their delay in substituting the correct name of that party was not fatal. Tyson v. L'eggs Prods., Inc., 84 N.C. App. 1, 351 S.E.2d 834 (1987).

The purpose of section (d) of this rule is only to keep the action alive by means of an endorsement on the original summons or by issuance of an alias or pluries summons in situations where the original, properly directed summons was not yet served. Roshelli v. Sperry, 63 N.C. App. 509, 305 S.E.2d 218, cert. denied, 309 N.C. 633, 308 S.E.2d 716 (1983).

An alias or pluries summons is not ineffective where it does not refer back to the process next preceding it, the delayed service of complaint, but referred instead to the original summons. The General Assembly, by adopting a less stringent standard of service for complaints filed under the late-filing provisions of G.S. 1A-1, Rule 3, clearly did not intend the delayed service of the complaint to be a link in the chain of process. This is especially true in light of the fact that the present option of service by mail for the late complaint constitutes a departure from the former practice requiring formal service. Childress v. Forsyth County Hosp. Auth., 70 N.C. App. 281, 319 S.E.2d 329 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 484 (1985).

Summons Held Valid. - Summons was valid process under this rule, whether the court treated the summons with which defendants were eventually served as an original summons or as an alias and pluries summons. CBP Resources, Inc. v. Ingredient Resource Corp., 954 F. Supp. 1106 (M.D.N.C. 1996).

Argument That Summons Was Defective Abandoned. - City attorney abandoned his argument that the trial court erred by denying his motion to dismiss an action for failure of the summonses to contain the title of the cause because the city attorney cited to no authority for the proposition that failing to list all defendants and to mirror the title of the cause in the complaint rendered the title of the cause in the summons defective. Washington v. Cline, 233 N.C. App. 412, 761 S.E.2d 650 (2014).

Neglect Required for Appointment of Private Process Server. - Something more than mere failure to act is needed for conduct to constitute neglect under paragraph (h) of this rule. Williams v. Williams, 113 N.C. App. 226, 437 S.E.2d 884 (1994), aff'd, 339 N.C. 608, 453 S.E.2d 165 (1995).

Service Proper Despite Irregularity of Affidavit. - Defendant was properly served, both individually and as executrix of an estate, within the time prescribed by G.S. 1A-1-4, as the record showed that, while the affidavit of service stated only that the summons was issued to defendant in her individual capacity, the summons was issued to defendant both individually and as the executrix. Boyd v. Sandling, 210 N.C. App. 455, 708 S.E.2d 311 (2011).

Affidavit of Recipient Rebutted Presumption of Proper Service. - Under Fed. R. Civ. P. 4, G.S. 1-75.10(4), and G.S. 1A-1, N.C. R. Civ. P. 4(j2)(2), service via certified mail, return receipt requested, did not effectuate proper service of process on certain prison employees because the person who accepted delivery at a prison submitted an affidavit stating that he signed the certified mail green card without consulting the addressee. Saraidaris v. Sealy, - F. Supp. 2d - (E.D.N.C. Feb. 8, 2012).

Service on Local Union Did Not Effect Service on International Union. - In an employment discrimination action in which an employee attempted to serve process on an international union by mailing the summons and complaint to a local union's office, the international union was not properly served under Fed. R. Civ. P. 4(c)(2) and (e)(1) and N.C. R. Civ. P. 4(j)(8) because the unions were autonomous entities, the local union was not authorized to accept service of process on behalf of the international union, and the local union was not a mere agent of the international union. Hoyle v. UAW Local Union 5285, 444 F. Supp. 2d 467 (W.D.N.C. 2006).

Alias Summons Against State. - A civil action may be continued in existence against any defendant by suing out an alias summons within 90 days of the last preceding summons. No special attention to this rule appears for suits against the State. The State, once it has consented to suit, occupies the same position as any other litigant. Barrus Constr. Co. v. North Carolina Dep't of Transp., 71 N.C. App. 700, 324 S.E.2d 1 (1984).

Service by Publication Prior to Issuance of Alias Summons. - In personam jurisdiction can be obtained over a defendant through service of process by publication within 90 days of the issuance of the original summons, but before any issuance of an alias or pluries summons. County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 323 S.E.2d 458 (1984).

Defense of Insufficient Service on "John Doe" Defendant Not Available to Insurance Company. - Where respondent was provided with appropriate notice of the action below, it could not attempt to defend its prior election not to provide a defense to a John Doe defendant by alleging that service of process on "John Doe" was insufficient. Sparks v. Nationwide Mut. Ins. Co., 99 N.C. App. 148, 392 S.E.2d 415 (1990).

Issuance of Second Summons. - Although summons was not properly issued at first, the issuance of a second summons commenced a new action on the date it was issued. Duncan v. Duncan, 102 N.C. App. 107, 401 S.E.2d 398 (1991).

60 Day "Saving Provision" in Subdivision (j2)(2). - A careful review of this saving provision indicates it is limited in scope and may only be employed where: (1) the original service was made by registered or certified mail upon a person residing in the addressee's dwelling house or usual place of abode; and (2) it later appears "the person who received the receipt at the addressee's dwelling house or usual place of abode was not a person of suitable age and discretion residing therein." Hanover Ins. Co. v. Amana Refrigeration, Inc., 106 N.C. App. 79, 415 S.E.2d 99, cert. denied, 332 N.C. 344, 421 S.E.2d 147 (1992).

The circumstance of the summons being placed in the court file subsequent to entry of judgment by default is insufficient to affect validity of either the summons or the judgment itself. Hocke v. Hanyane, 118 N.C. App. 630, 456 S.E.2d 858 (1995).

Delivery Via Designated Delivery Service. - Where defendants challenge delivery to the address under G.S. 1A-1, N.C. R. Civ. P. 4(j)(1)(d) and G.S. 1-75.10(5), the crucial issue is whether the summons and complaint were in fact received by the defendants challenging service. Washington v. Cline, 233 N.C. App. 412, 761 S.E.2d 650 (2014).

Private Process Server. - Although Plaintiff's process server filed the statutorily required affidavit, a self-serving affidavit alone does not confer "duly authorized by law" status on the affiant; the record did not disclose the sheriff was unable to deliver service so that the services of a process server would be needed, and dismissal of plaintiff's claims against one defendant was affirmed. Locklear v. Cummings, 262 N.C. App. 588, 822 S.E.2d 587 (2018).

Mailing of Process. - In child custody cases where actual notice has been received, service of process is proper notwithstanding a person other than the clerk's office mailing the process. Tataragasi v. Tataragasi, 124 N.C. App. 255, 477 S.E.2d 239 (1996).

Proof of Service Established. - Trial court erred in ruling that plaintiffs failed to properly prove service on defendants because plaintiffs properly proved service by presenting affidavits from defendants admitting that they received the summonses and complaints after service documents were addressed to them and sent through a delivery service; the fact that the legislature declined to include a personal delivery requirement in subsection (j)(1)(d) when it did so in other subsections indicates its intention to exclude it. Washington v. Cline, 233 N.C. App. 412, 761 S.E.2d 650 (2014).

Applied in Bowdach v. Frontierland, Inc., 347 F. Supp. 237 (W.D.N.C. 1972); William R. Andrews Assocs. v. Sodibar Sys., 25 N.C. App. 372, 213 S.E.2d 411 (1975); City of Durham v. Lyckan Dev. Corp., 26 N.C. App. 210, 215 S.E.2d 814 (1975); William R. Andrews Assocs. v. Sodibar Sys., 28 N.C. App. 663, 222 S.E.2d 922 (1976); Swenson v. All Am. Assurance Co., 33 N.C. App. 458, 235 S.E.2d 793 (1977); In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978); Sawyer v. Cox, 36 N.C. App. 300, 244 S.E.2d 173 (1978); Carl Rose & Sons Ready Mix Concrete, Inc. v. Thorp Sales Corp., 36 N.C. App. 778, 245 S.E.2d 234 (1978); Chemical Realty Corp. v. Home Fed. Sav. & Loan Ass'n, 40 N.C. App. 675, 253 S.E.2d 621 (1979); Broughton v. DuMont, 43 N.C. App. 512, 259 S.E.2d 361 (1979); Hassell v. Wilson, 44 N.C. App. 434, 261 S.E.2d 227 (1980); Wheeler v. Roberts, 45 N.C. App. 311, 262 S.E.2d 829 (1980); Georgia R.R. Bank & Trust Co. v. Eways, 46 N.C. App. 466, 265 S.E.2d 637 (1980); Quattrone v. Rochester, 46 N.C. App. 799, 266 S.E.2d 40 (1980); Ellis v. Kimbrough, 47 N.C. App. 179, 266 S.E.2d 758 (1980); Brown v. Brown, 47 N.C. App. 323, 267 S.E.2d 345 (1980); Canterbury v. Monroe Lange Hardwood Imports, 48 N.C. App. 90, 268 S.E.2d 868 (1980); Lynch v. Lynch, 302 N.C. 189, 274 S.E.2d 212 (1981); Terry v. Lowrance Hosp., 54 N.C. App. 663, 284 S.E.2d 128 (1981); In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380 (1983); House of Raeford Farms, Inc. v. Brooks, 63 N.C. App. 106, 304 S.E.2d 619 (1983); Bush v. BASF Wyandotte Corp., 64 N.C. App. 41, 306 S.E.2d 562 (1983); DeArmon v. B. Mears Corp., 67 N.C. App. 640, 314 S.E.2d 124 (1984); Lessard v. Lessard, 68 N.C. App. 760, 316 S.E.2d 96 (1984); Blackwell v. Massey, 69 N.C. App. 240, 316 S.E.2d 350 (1984); Drummond v. Cordell, 72 N.C. App. 262, 324 S.E.2d 301 (1985); White v. Graham, 72 N.C. App. 436, 325 S.E.2d 497 (1985); VEPCO v. Tillett, 73 N.C. App. 512, 327 S.E.2d 2 (1985); North Carolina State Bar v. Wilson, 74 N.C. App. 777, 330 S.E.2d 280 (1985); City of Raleigh v. College Campus Apts., Inc., 94 N.C. App. 280, 380 S.E.2d 163 (1989); Copley Triangle Assocs. v. Apparel Am., Inc., 96 N.C. App. 263, 385 S.E.2d 201 (1989); Sellers v. High Point Mem. Hosp., 97 N.C. App. 299, 388 S.E.2d 197 (1990); In re Adoption of P.E.P., 100 N.C. App. 191, 395 S.E.2d 133 (1990); Warzynski v. Empire Comfort Sys., 102 N.C. App. 222, 401 S.E.2d 801 (1991); In re P.E.P., 329 N.C. 692, 407 S.E.2d 505 (1991); Transtector Sys. v. Electric Supply, Inc., 113 N.C. App. 148, 437 S.E.2d 699 (1993); City of Charlotte v. Noles, 143 N.C. App. 181, 544 S.E.2d 585 (2001); Gibby v. Lindsey, 149 N.C. App. 470, 560 S.E.2d 589 (2002); Elkins v. Broome, 213 F.R.D. 273 (M.D.N.C. 2003); Young v. Hair, - F. Supp. 2d - (E.D.N.C. Jan. 26, 2004); Jackson v. Culbreth, 199 N.C. App. 531, 681 S.E.2d 813 (2009); B. Kelley Enters., Inc. v. Vitacost.com, Inc., 211 N.C. App. 592, 710 S.E.2d 334 (2011); N.C. State Bar v. Hunter, 217 N.C. App. 216, 719 S.E.2d 182 (2011), dismissed 365 N.C. 552, 722 S.E.2d 791, 2012 N.C. LEXIS 201 (2012).

Cited in Crabtree v. Coats & Burchard Co., 7 N.C. App. 624, 173 S.E.2d 473 (1970); Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424 (1971); Atkinson v. Tarheel Homes & Realty Co., 14 N.C. App. 638, 188 S.E.2d 703 (1972); Finley v. Finley, 15 N.C. App. 681, 190 S.E.2d 660 (1972); Golding v. Taylor, 19 N.C. App. 245, 198 S.E.2d 478 (1973); Sink v. Easter, 288 N.C. 183, 217 S.E.2d 532 (1975); Fagan v. Hazzard, 29 N.C. App. 618, 225 S.E.2d 640 (1976); First Nat'l Bank v. General Funding Corp., 30 N.C. App. 172, 226 S.E.2d 527 (1976); Stephenson v. Jordan Volkswagen, Inc., 428 F. Supp. 195 (W.D.N.C. 1977); Byrum v. Register's Truck & Equip. Co., 32 N.C. App. 135, 231 S.E.2d 39 (1977); Telerent Leasing Corp. v. Equity Assocs., 36 N.C. App. 713, 245 S.E.2d 229 (1978); Equilease Corp. v. Belk Hotel Corp., 42 N.C. App. 436, 256 S.E.2d 836 (1979); Yale v. National Indem. Co., 602 F.2d 642 (4th Cir. 1979); Gemini Enters., Inc. v. WFMY Television Corp., 470 F. Supp. 559 (M.D.N.C. 1979); Hecht Realty, Inc. v. Hastings, 45 N.C. App. 307, 262 S.E.2d 858 (1980); Modern Globe, Inc. v. Spellman, 45 N.C. App. 618, 263 S.E.2d 859 (1980); Collins v. Edwards, 54 N.C. App. 180, 282 S.E.2d 559 (1981); Southgate v. Russ, 52 N.C. App. 364, 278 S.E.2d 313 (1981); Johnston v. Gilley, 50 N.C. App. 274, 273 S.E.2d 513 (1981); Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513 (1981); Fungaroli v. Fungaroli, 51 N.C. App. 363, 276 S.E.2d 521 (1981); Smith v. Smith, 56 N.C. App. 812, 290 S.E.2d 390 (1982); Stevens v. Stevens, 68 N.C. App. 234, 314 S.E.2d 786 (1984); Estrada v. Burnham, 74 N.C. App. 557, 328 S.E.2d 611 (1985); C.W. Matthews Contracting Co. v. State, 75 N.C. App. 317, 330 S.E.2d 630 (1985); Union County Dep't of Social Servs. v. Mullis, 82 N.C. App. 340, 346 S.E.2d 289 (1986); Dowat, Inc. v. Tiffany Corp., 83 N.C. App. 207, 349 S.E.2d 610 (1986); Phillips Factors Corp. v. Harbor Lane of Pensacola, Inc., 648 F. Supp. 1580 (M.D.N.C. 1986); Humphrey v. Sinnott, 84 N.C. App. 263, 352 S.E.2d 443 (1987); Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643 (1988); Brookshire v. Brookshire, 89 N.C. App. 48, 365 S.E.2d 307 (1988); Reagan v. Hampton, 700 F. Supp. 850 (M.D.N.C. 1988); Federal Land Bank v. Lackey, 94 N.C. App. 553, 380 S.E.2d 538 (1989); In re Clark, 95 N.C. App. 1, 381 S.E.2d 835 (1989); Greenville Buyers Mkt. Assocs. v. St. Petersburg Fashions, Inc., 97 N.C. App. 136, 387 S.E.2d 234 (1990); Williamson v. Savage, 104 N.C. App. 188, 408 S.E.2d 754 (1991); Lusk v. Crawford Paint Co., 106 N.C. App. 292, 416 S.E.2d 207 (1992); Taylor v. Brinkman, 108 N.C. App. 767, 425 S.E.2d 429 (1993); Nissan Div. of Nissan Motor Corp. in United States v. Nissan, 111 N.C. App. 748, 434 S.E.2d 224 (1993); In re Baby Boy Dixon, 112 N.C. App. 248, 435 S.E.2d 352 (1993); McArdle Corp. v. Patterson, 115 N.C. App. 528, 445 S.E.2d 604 (1994); Jones v. Summers, 117 N.C. App. 415, 450 S.E.2d 920 (1994); Storey v. Hailey, 114 N.C. App. 173, 441 S.E.2d 602 (1994); Locklear v. Scotland Mem. Hosp., 119 N.C. App. 245, 457 S.E.2d 764 (1995); Better Bus. Forms, Inc. v. Davis, 120 N.C. App. 498, 462 S.E.2d 832 (1995); Hemmings v. Green, 122 N.C. App. 191, 468 S.E.2d 278 (1996); Walker Frames v. Shively, 123 N.C. App. 643, 473 S.E.2d 776 (1996); Tierney v. Garrard, 124 N.C. App. 415,
477 S.E.2d 73 (1996), cert. granted, 345 N.C. 760, 485 S.E.2d 309 (1997), aff'd, 347 N.C. 258, 490 S.E.2d 237 (1997); Williams v. Hinton, 127 N.C. App. 421, 490 S.E.2d 239 (1997); Riddick v. Myers, 131 N.C. App. 871, 509 S.E.2d 469 (1998); Osborne v. Osborne, 129 N.C. App. 34, 497 S.E.2d 113 (1998); Goodwin v. Furr, 25 F. Supp. 2d 713 (M.D.N.C. 1998); State ex rel. Barker v. Ellis, 144 N.C. App. 135, 547 S.E.2d 166, cert. denied, 354 N.C. 74, 553 S.E.2d 204 (2001); Piedmont Rebar, Inc. v. Sun Constr., Inc., 150 N.C. App. 573, 564 S.E.2d 281 (2002); Old Salem Foreign Car Serv., Inc. v. Webb, 159 N.C. App. 93, 582 S.E.2d 673 (2003); A.H. Beck Found. Co. v. Jones Bros., 166 N.C. App. 672, 603 S.E.2d 819 (2004); Adams v. Bank United of Tex. FSB, 167 N.C. App. 395, 606 S.E.2d 149 (2004), cert. denied, 359 N.C. 410, - S.E.2d - (2005); Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715 (2005), cert. denied, - U.S. - , 126 S. Ct. 2972, 165 L. Ed. 2d 954 (2006); In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); Smith v. Jones, 183 N.C. App. 643, 645 S.E.2d 198 (2007); In re Summons Issued to Ernst & Young, LLP, 191 N.C. App. 668, 663 S.E.2d 921 (2008), rev'd in part on other grounds, and remanded, 363 N.C. 612, 684 S.E.2d 151, 2009 N.C. LEXIS 897 (2009); Cambridge Homes of N.C. L.P. v. Hyundai Constr., Inc., 194 N.C. App. 407, 670 S.E.2d 290 (2008); Sharyn's Jewelers, LLC v. Ipayment, Inc., 196 N.C. App. 281, 674 S.E.2d 732 (2009); Insulation Sys. v. Fisher, 197 N.C. App. 386, 678 S.E.2d 357 (2009); In re J.D.L., 199 N.C. App. 182, 681 S.E.2d 485 (2009); In re Summons Issued to Ernst & Young, LLP, 363 N.C. 612, 684 S.E.2d 151 (2009); Webb v. Price, 210 N.C. App. 261, 708 S.E.2d 94 (2011); Stinchcomb v. Presbyterian Med. Care Corp., 211 N.C. App. 556, 710 S.E.2d 320 (2011), review denied 717 S.E.2d 376, 2011 N.C. LEXIS 670 (N.C. 2011); Stewart v. Hodge, 211 N.C. App. 605, 711 S.E.2d 175 (2011); Stunzi v. Medlin Motors, Inc., 214 N.C. App. 332, 714 S.E.2d 770 (2011); Batesville Casket Co. v. Wings Aviation, Inc., 214 N.C. App. 447, 716 S.E.2d 13 (2011); State ex rel. Guilford County Bd. of Educ. v. Herbin, 215 N.C. App. 348, 716 S.E.2d 35 (2011); Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67 (2011); Shaner v. Shaner, 216 N.C. App. 409, 717 S.E.2d 66 (2011); Kahihu v. Brunson, 234 N.C. App. 142, 758 S.E.2d 648 (2014); Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540 (2014).

Magazian v. Creagh, 234 N.C. App. 511, 759 S.E.2d 130 (2014); Mannise v. Harrell, 249 N.C. App. 322, 791 S.E.2d 653 (2016); Wicker v. Wicker, - N.C. App. - , 835 S.E.2d 874 (2019).

II. PERSONAL SERVICE ON NATURAL PERSONS.

A. IN GENERAL.

.

The purpose of section (d) of this rule is only to keep the action alive by means of an endorsement on the original summons or by issuance of an alias or pluries summons in situations where the original, properly directed summons was not yet served. Roshelli v. Sperry, 63 N.C. App. 509, 305 S.E.2d 218, cert. denied, 309 N.C. 633, 308 S.E.2d 716 (1983).

Section (j) of this rule is tied closely to the new jurisdiction statute, § 1-75.1 et seq., and the two are complementary to one another. While the jurisdiction statute greatly liberalizes the grounds for jurisdiction, the rules regarding service of process are tightened, to ensure, as much as possible, that the defendant receives actual notice of the controversy. Edwards v. Edwards, 13 N.C. App. 166, 185 S.E.2d 20 (1971).

The service of process requirements of section (j) of this rule are mandatory. Harris v. Maready, 64 N.C. App. 1, 306 S.E.2d 799 (1983), rev'd on other grounds, 311 N.C. 536, 319 S.E.2d 912 (1984).

Subdivision (j)(1)a must be strictly construed, and the prescribed procedure must be strictly followed; unless the specified requirements are complied with, there is no valid service. Guthrie v. Ray, 31 N.C. App. 142, 228 S.E.2d 471 (1976), rev'd on other grounds, 293 N.C. 67, 235 S.E.2d 146 (1977).

Rebuttable Presumption from Return Showing Legal Service Under Subdivision (j)(1)a. - When the officer's return on the summons shows legal service under subdivision (j)(1)a, a rebuttable presumption of valid service of process is credited. Guthrie v. Ray, 31 N.C. App. 142, 228 S.E.2d 471 (1976), rev'd on other grounds, 293 N.C. 67, 235 S.E.2d 146 (1977).

When the officer's return of the summons shows legal service a presumption of valid service of process is created. Greenup v. Register, 104 N.C. App. 618, 410 S.E.2d 398 (1991).

Evidence of Backdated Signature Voids Judgment. - Wife who agreed to husband's request that she backdate her signature on the "Acceptance of Service" submitted sufficient testimony that she did so in support of her motion to set aside a judgment of absolute divorce on the grounds that the trial court was without jurisdiction to adjudicate the absolute divorce prior to the expiration of the requisite 30 (now 60) days. Latimer v. Latimer, 136 N.C. App. 227, 522 S.E.2d 801 (1999), decided prior to 2001 amendment to subsection (c).

Absent valid service of process, a court does not acquire personal jurisdiction over the defendant and the action must be dismissed. Glover v. Farmer, 127 N.C. App. 488, 490 S.E.2d 576 (1997), cert. denied, 347 N.C. 575, 502 S.E.2d 590 (1998).

Where the employee failed to serve the individual employers with a copy of the summons and complaint, the trial court did not have personal jurisdiction over the individual employers, and thus the court's order setting aside a summary judgment was void ab initio and could be attacked at any time. Van Engen v. Que Scientific, Inc., 151 N.C. App. 683, 567 S.E.2d 179 (2002).

Minimum Contacts Analysis Not Necessary When Defendant Is Served Within State. - Although the minimum contacts analysis has been consistently applied to cases in which nonresident defendants were served with process outside this State, such minimum contacts analysis is not necessary when the defendant is personally served while present within this State. Lockert v. Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987).

Trial court did not err in denying the mistress's motion to dismiss pursuant to G.S. 1A-1, N.C. R. Civ. P. 12(b)(2), where she was personally served with the wife's complaint while she was physically present in the state, as required by G.S. 1A-1, N.C. R. Civ. P. 4(j)(1)(a), and judicial precedent clearly held that the minimum contacts test was inapplicable to cases in which a defendant was personally served within the forum state. Hedden v. Isbell, 250 N.C. App. 189, 792 S.E.2d 571 (2016), cert. denied, 795 S.E.2d 366, 2017 N.C. LEXIS 66 (2017); review denied, 2017 N.C. LEXIS 66 (2017).

Personal Service on Nonresident Within This State Is Sufficient. - The rule continues to be that personal service on a nonresident party, at a time when that party is present in the forum state, suffices in and of itself to confer personal jurisdiction over that party. Lockert v. Breedlove, 321 N.C. 66, 361 S.E.2d 581 (1987).

Service While Visiting Parents. - Service made at defendant's parents' house while defendant was visiting her parents was valid as defendant was "residing" at her parents home. Glover v. Farmer, 127 N.C. App. 488, 490 S.E.2d 576 (1997), cert. denied, 347 N.C. 575, 502 S.E.2d 590 (1998).

Service on Sole Proprietorship. - Service of process was defective where plaintiff failed to comply with the mandatory requirements of subdivision (j)(1) of this rule for service of process on a sole proprietorship, and attempted service instead on such proprietorship as an association under subdivision (j)(8) of this rule by delivering the complaint and summons by registered mail addressed to executive manager. The fact that executive manager signed the registered mail receipt and may have thereafter acquired actual notice of the lawsuit does not remedy the failure of plaintiff to comply with subdivision (j)(1) of this rule. Park v. Sleepy Creek Turkeys, Inc., 60 N.C. App. 545, 299 S.E.2d 670 (1983).

Service on Partners - Purpose of Subdivision (j)(7)b. - The purpose of subdivision (j)(7)b of this rule is to provide notice of the commencement of an action to the individual partner, so that he may protect his interests, and to provide a ritual that marks the court's assertion of jurisdiction over the lawsuit. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986), reconsideration denied, 318 N.C. 702, 351 S.E.2d 760 (1987).

Service on Partners - Service of Summons Prerequisite to Individual Liability. - Actual notice of a suit against the partnership will not cure the requirement that a partner must be served with a summons to be held individually liable. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986), reconsideration denied, 318 N.C. 702, 351 S.E.2d 760 (1987).

Each partner in a partnership is jointly and severally liable for a tort committed in the course of the partnership business, and the injured party may sue all members of the partnership or any one of them at his election. But a partner who is not served with summons is not bound beyond his partnership assets. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986), reconsideration denied, 318 N.C. 702, 351 S.E.2d 760 (1987).

General partner who was not made a party to the defendant's counterclaim or served with a copy of a summons, could not be held personally liable for a judgment against the partnership. Post & Front Properties, Ltd. v. Roanoke Constr. Co., 117 N.C. App. 93, 449 S.E.2d 765 (1994).

Service on Partners - Effect of Verification of Answer. - Defendant partner's verification of original answer where he was sued in his partnership capacity did not subject him to individual liability. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986), reconsideration denied, 318 N.C. 702, 351 S.E.2d 760 (1987).

Service on Partners - Effect of Participation in Suit. - A partner who participates in a malpractice suit by acquainting himself with the facts of the pending suit and notifying his insurance carrier of the suit does not subject himself to individual liability when the Rules of Civil Procedure require that he be served with process individually before being held individually liable. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 318 N.C. 511, 349 S.E.2d 873 (1986), reconsideration denied, 318 N.C. 702, 351 S.E.2d 760 (1987).

Alias and pluries summons served personally on a nonresident defendant while present in this State were held not to be issued on a different person and therefore related back to the original summons where the original summons had been properly served upon the Commissioner of Motor Vehicles pursuant to G.S. 1-105. Smith v. Schraffenberger, 90 N.C. App. 589, 369 S.E.2d 90, cert. denied, 323 N.C. 366, 373 S.E.2d 549 (1988).

General Appearance by Defendant Conferred Jurisdiction. - Even if the court had not already obtained jurisdiction over defendant by serving him with process by registered mail in compliance with this rule, by contesting both the notice to take his deposition and the show cause motion on grounds other than the court's lack of jurisdiction over him, defendant made a general appearance in the proceeding and thus submitted himself to the jurisdiction of the court. M.G. Newell Co. v. Wyrick, 91 N.C. App. 98, 370 S.E.2d 431 (1988).

Nonresident Motorists. - In suits involving nonresident drivers of motor vehicles, service upon the nonresident driver may be accomplished by personal service pursuant to subsection (j) of this rule or by service upon the Commissioner of Motor Vehicles under G.S. 1-105. Smith v. Schraffenberger, 90 N.C. App. 589, 369 S.E.2d 90, cert. denied, 323 N.C. 366, 373 S.E.2d 549 (1988).

Where individuals are doing business as a partnership under a firm name, such firm is described in an action as a corporation, and process is served on a member of the partnership, members of the partnership may be substituted by amending the process and allowing the pleading to be amended. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

Defendant was personally served with a summons, although that summons was addressed to another defendant, the caption of which listed his name first among the defendants being sued, and in fact his name appeared twice in the caption as he was named both individually and as a part of the law firm. Any person served in this manner would make further inquiry personally or through counsel if he had any doubt that he was being sued and would be required to answer the complaint when it was filed, which would have revealed the existence of a summons directed to him and purporting on its face to have been served upon him and would have established his duty to appear and answer. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

Personal Out-of-State Service by Summons Upheld. - Where a third-party defendant, resident of California, allegedly committed a tort while working in North Carolina, personal service by summons delivered to him by a U.S. Marshall in California according to G.S. 1-75.3, G.S. 1-75.4 and subdivision (j)(1)a and former subdivision (j)(9)a of this rule satisfied the traditional notions of fair play and substantial justice required by the due process clause of U.S. Const., Amend. XIV. Bowdach v. Frontierland, Inc., 347 F. Supp. 233 (W.D.N.C. 1972).

Separate Houses on Same Farm. - Defendant and his parents shared the same dwelling and place of abode, for purposes of subdivision (j)(1)a of this rule, where they lived on the same farm, owned by the parents, although they occupied separate houses, about 60 to 100 yards apart. Bowers v. Billings, 80 N.C. App. 330, 342 S.E.2d 58 (1986).

Waiver of Right to Challenge Jurisdiction. - Assuming, without deciding, that the service required by former G.S. 55-71(c), relating to determining the validity of the election or appointment of corporate directors or officers, had to be made in the manner required by section (j) of this rule, respondents waived their right to challenge personal jurisdiction where they each received a copy of the petition and notice of hearing from petitioner's counsel more than 10 days prior to the hearing, made a joint response to the petition requesting that the court declare the entire election void, but did not assert any defense of insufficiency of service of process, and appeared at the hearing and participated fully. Stancil v. Bruce Stancil Refrigeration, Inc., 81 N.C. App. 567, 344 S.E.2d 789, cert. denied, 318 N.C. 418, 349 S.E.2d 601 (1986), appeal dismissed, 94 N.C. App. 760, 381 S.E.2d 720 (1989).

Juvenile petition was filed June 11, 2004, and the summons was issued four days later, but the summons was returned by the sheriff on June 30, 2004, unserved; on July 8, 2004, the mother attended a hearing regarding the allegations her minor child was neglected and dependent. The mother was not only present in court, but also agreed to continue the matter until July 22, 2004, and there was no evidence that the mother raised any objection at that hearing regarding insufficient service of process or personal jurisdiction; thus, her actions amounted to waiver of her right to challenge the trial court's exercise of personal jurisdiction over her regardless of whether she was served with a juvenile summons in compliance with G.S. 1A-1-4. In re A.J.M., 177 N.C. App. 745, 630 S.E.2d 33 (2006).

Trial court had jurisdiction to terminate a mother's parental rights because it had jurisdiction over the underlying neglect and dependency action and issued a valid custody order to the county department of social services, giving it standing to file the petitions for termination of parental rights pursuant to G.S. 7B-1103(a)(3); a summons was issued a day after the juvenile petitions were filed, and although the mother was not served with the summonses until after their expiration, she made a general appearance in the action before the trial court at the non-secure custody hearings, thereby waiving any objection to personal jurisdiction. In re S'N.A.S., 201 N.C. App. 581, 686 S.E.2d 917 (2009).

Although a mother received improper service of a summons to a petition seeking to terminate her parental rights pursuant to G.S. 1A-1, Rule 4, because she acknowledged service 285 days after the summons was issued, she waived any objection to the trial court's jurisdiction by answering and appearing. In re N.E.L., 202 N.C. App. 576, 688 S.E.2d 803 (2010).

Trial court did not err when it concluded that, pursuant to O.C.G.A. § 9-11-12(h)(1), a North Carolina contractor waived objection to the sufficiency of service by a North Carolina deputy sheriff because the contractor appeared in Georgia court and filed a responsive pleading and motion, and the contractor failed to raise the issue of service by a North Carolina deputy sheriff in the contractor's first pleading or motion. Merry v. Robinson, 313 Ga. App. 321, 721 S.E.2d 567 (2011).

Forged Signature on Acceptance of Service - Divorce judgment was declared void pursuant to G.S. 1A-1, N.C. R. Civ. P. 60(b) for lack of service when the wife proved that her signature was forged on the acceptance of service filed pursuant to G.S. 1A-1, N.C. R. Civ. P. 4(j5) and that she and her husband had continued to live and conduct themselves as husband and wife after the divorce. Freeman v. Freeman, 155 N.C. App. 603, 573 S.E.2d 708 (2002), cert. denied, 357 N.C. 250, 582 S.E.2d 32 (2003).

Actions Constituting Effectual Service. - The placing of envelope addressed to defendant and containing summons and complaint on the seat of a nearby pickup truck, presumed to be defendant's but actually one driven by his employee, as defendant watched, after defendant refused to accept service of same, where defendant's employee found the envelope and delivered it to defendant's wife the next day, constituted effectual service on defendant, in view of the fact that service had previously been attempted upon him by certified mail, restricted delivery, which service had been refused. Currie v. Wood, 112 F.R.D. 408 (E.D.N.C. 1986).

Evidence was sufficient to find that the plaintiff exercised due diligence in attempting to ascertain the address or whereabouts of defendant where plaintiff's counsel attempted service at two available addresses, consulted the local telephone directory and the department of motor vehicles to obtain information, contacted the defendant's insurer and attorney seeking information as to defendant's whereabouts and finally wrote the California Department of Motor Vehicles based on a statement by defendant's sister that he was "out west, possibly California." Winter v. Williams, 108 N.C. App. 739, 425 S.E.2d 458 (1993).

Because G.S. 7B-1102(b) merely directed the Department of Social Services (DSS) to serve the motion and notice pursuant to G.S. 1A-1-4, and nowhere suggested that the DSS had to issue a summons instead of or in addition to those documents, there was violation because of a failure to issue a summons. In re D.R.S., 181 N.C. App. 136, 638 S.E.2d 626 (2007).

Proper Service Established. - Defendant's motion to dismiss plaintiff's paternity suit for insufficiency of service of process was properly denied because, inter alia, the process server's affidavit stated that he was over 18 and not a party to or otherwise interested in the action at the time of service; the affidavit thus demonstrated that he was qualified to effect service in Virginia under Va. Code Ann. § 8.01-293(A)(2) and thus was qualified to effect service under G.S. 1A-1, N.C. Civ. P. 4(a) as required by G.S. 1-75.10(a)(1). Proof of service was established pursuant to North Carolina law and Virginia's proof of service law did not apply, and the evidence supported a finding of personal delivery to defendant. New Hanover County Child Support Enforcement ex rel Beatty v. Greenfield, 219 N.C. App. 531, 723 S.E.2d 790 (2012).

Trial court did not err in denying a city manager's motion to dismiss for insufficient service of process because the manager was properly served as a natural person, and arrestees properly proved service. Washington v. Cline, 230 N.C. App. 396, 750 S.E.2d 843 (2013), sub. op. 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (N.C. Ct. App. 2014).

Trial court erred in granting city officials' motions to dismiss for insufficient service of process because arrestees properly served the officials since they provided sufficient evidence in the form of delivery receipts and affidavits to prove that the officials were properly served; the fact that the legislature failed to include a personal delivery requirement in subsection (j)(1)(d) when it did so in other subsections throughout the statute indicates its intention to exclude it. Washington v. Cline, 230 N.C. App. 396, 750 S.E.2d 843 (2013), sub. op. 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (N.C. Ct. App. 2014).

Service Held Insufficient. - Where plaintiff apparently undertook to have defendant served pursuant to subdivision (j)(1) of this rule, but the receipt for certified mail included in the record stated that notice was sent to her in care of McBess Industries, and the record did not disclose that McBess Industries was an agent of defendant or that the receipt was signed by defendant or McBess Industries, defendant did not have proper notice of plaintiff's motion for summary judgment, and the judgment against her would be vacated. Oak Island Southwind Realty, Inc. v. Pruitt, 89 N.C. App. 471, 366 S.E.2d 489 (1988).

Where plaintiff did not deliver endorsed summons to some proper person for service as required by section (a) of this rule, unconscionable delay was most critical to defendant, and there was no contention that defendant was unavailable for service, the trial judge properly dismissed plaintiff 's action pursuant to G.S. 1A-1, Rule 41(b) based upon plaintiff 's violation of section (a) of this rule for the purposes of delay and in order to gain an unfair advantage over the defendant. Smith v. Quinn, 324 N.C. 316, 378 S.E.2d 28 (1989).

Trial court properly granted a driver's motion pursuant to G.S. 1A-1, N.C. R. Civ. P. 12, to dismiss a personal injury action arising from an automobile accident, because the injured party failed to properly serve the driver pursuant to G.S. 1A-1, N.C. R. Civ. P. 4, and the driver did not make a general appearance by requesting an extension of time pursuant to G.S. 1-75.7, so the trial court lacked personal jurisdiction. Zellars v. McNair, 166 N.C. App. 755, 603 S.E.2d 826 (2004), cert. denied, - N.C. - , 614 S.E.2d 925 (2005).

Termination of a mother's parental rights pursuant to G.S. 7B-1111(a)(1) was vacated because the mother was not provided notice of the termination hearing as required by G.S. 7B-1106, as there was no evidence that the addresses to which notices were sent were the mother's dwelling, and this fact, along with the fact that the mother did not attend the hearing or respond in any way, refuted the presumption of valid service under G.S. 1A-1-4(j)(2). In re K.N., 181 N.C. App. 736, 640 S.E.2d 813 (2007).

Service of process on a father was improper since it was unclear whether the alleged concierge who signed the delivery receipt was authorized to accept service of process on the father's behalf. Hamilton v. Johnson, 228 N.C. App. 372, 747 S.E.2d 158 (2013).

Since the association failed to comply with this rule, in providing notice to the property owner, the owner was entitled to relief from the Clerks's office pursuant to N.C. Gen. Stat. § 1A-1, N.C. R. Civ. P. 60 In re Foreclosure Under That Powers Granted in Chapter 47F of the N.C. Gen. Statutes, 255 N.C. App. 284, 804 S.E.2d 794 (2017), aff'd, 811 S.E.2d 143, 2018 N.C. LEXIS 220 (2018) review denied, 811 S.E.2d 588, 2018 N.C. LEXIS 241 (2018) aff'd, 2018 N.C. LEXIS 220 (2018).

Because defendants had actual notice of appeal, as shown by their participation in the appeal, the error in filing the notice of appeal by email did not warrant dismissal of the appeal Bradley v. Cumberland Cty., 262 N.C. App. 376, 822 S.E.2d 416 (2018), review denied, 372 N.C. 360, 828 S.E.2d 156, 2019 N.C. LEXIS 558 (2019).

Trial court correctly determined a foreclosure sale was void due to lack of personal jurisdiction over the homeowner because the foreclosure trustee failed to serve all record owners of the property; the attempted service of the notice of foreclosure upon the homeowner by leaving a copy at the property was inadequate because the property was not his dwelling house or usual place of abode. In re Proposed Foreclosure of Claim of Lien Filed on George, 264 N.C. App. 38, 825 S.E.2d 19 (2019).

B. DELIVERY TO PERSON RESIDING AT DEFENDANT'S USUAL ABODE.

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Where service is had by leaving summons and complaint with a person other than named defendant, the substitute person must be a "person of suitable age and discretion," who lives with defendant in his "dwelling house or usual place of abode," and the summons must be left with the substitute person at such usual place of abode. If delivery is made elsewhere, the service is invalid. Guthrie v. Ray, 293 N.C. 67, 235 S.E.2d 146 (1977).

Where Plaintiff and Defendant Share Abode. - North Carolina's service of process statute does not permit a wife who sues her husband to accept service on his behalf when she lives in the same house as he does. Darby v. Darby, 135 N.C. App. 627, 521 S.E.2d 741 (1999).

More Than One Dwelling House or Usual Place of Abode Possible. - It is unrealistic to interpret subdivision (j)(1)a of this rule so that the person to be served only has one dwelling house or usual place of abode at which process may be left. Van Buren v. Glasco, 27 N.C. App. 1, 217 S.E.2d 579 (1975), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).

Separate Houses on Same Farm. - Defendant and his parents shared the same dwelling and place of abode, for purposes of subdivision (j)(1)a of this rule, where they lived on the same farm, owned by the parents, although they occupied separate houses, about 60 to 100 yards apart. Bowers v. Billings, 80 N.C. App. 330, 342 S.E.2d 58 (1986).

As to fifteen-year-old boy being "person of suitable age and discretion" within subdivision (j)(1)a of this rule, see Van Buren v. Glasco, 27 N.C. App. 1, 217 S.E.2d 579 (1975), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982).

Delivery to Relation of Defendants at Place of Business. - Delivery of summons to a person who was the son of one defendant and brother of the other at defendants' place of business instead of defendants' respective residences was not in compliance with subdivision (j)(1)a, and jurisdiction over defendants was not thereby obtained. Hall v. Lassiter, 44 N.C. App. 23, 260 S.E.2d 155 (1979), cert. denied, 299 N.C. 330, 265 S.E.2d 395 (1980).

Delivery to Mother in Another County. - Service of process on one defendant was invalid where summons and complaint were handed to his mother, also a defendant, with whom he resided in Union County, after she voluntarily accompanied a deputy sheriff from her residence to Mecklenburg County where she was served with process herself. Williams v. Hartis, 18 N.C. App. 89, 195 S.E.2d 806 (1973).

Delivery to Sister. - Where the evidence tended to show that service upon one of the individual defendants was attempted by delivering copies of the summons and complaint to his sister, who neither resided with him nor was present in his home when the papers were delivered to her, such evidence was sufficient to support the trial court's findings that defendant was not properly served. Tinkham v. Hall, 47 N.C. App. 651, 267 S.E.2d 588 (1980).

Delivery to Brother. - Testimony of deputy and his two returns of service were competent evidence which would support the trial court's finding that defendant resided at the address in question with his brother, and that his brother was a person of suitable age and discretion to accept service. Olschesky v. Houston, 84 N.C. App. 415, 352 S.E.2d 884 (1987).

Attempted service on defendant's wife at hospital at which defendant was a patient rather than at his dwelling house or usual place of abode failed to comply with subdivision (j)(1)a of this rule and was invalid. Stone v. Hicks, 45 N.C. App. 66, 262 S.E.2d 318 (1980).

No Excusable Neglect or Ignorance About Proper Service. - As defendant's ignorance of the judicial process or confusion about the nature of an action was not excusable neglect under G.S. 1A-1, N.C. R. Civ. P. 60(b)(1), the trial court properly denied defendant's motion to set aside a default judgment; she was on notice that the sheriff had brought legal papers to her home and that they were accepted by her daughter, which was proper service pursuant to G.S. 1A-1, N.C. R. Civ. P. 4(j)(1)(a). Grier v. Guy, 224 N.C. App. 256, 741 S.E.2d 338 (2012).

Insufficient Service. - Although a motor vehicle accident victim asserted that service of process was properly delivered to the residential address of the motorist after the victim was unable to serve the motorist by a delivery service at the motorist's provided address, no evidence presented to the trial court tended to show that the residential address was ever the motorist's dwelling house or usual place of abode. Therefore, the trial court never acquired jurisdiction over the claim as the purported service at the residential address was insufficient. Patton v. Vogel, - N.C. App. - , 833 S.E.2d 198 (2019).

C. SERVICE BY REGISTERED OR CERTIFIED MAIL.

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Service by Registered Mail Complies with Due Process. - Service by registered mail is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections, and therefore complies with due process requirements. Chadbourn, Inc. v. Katz, 285 N.C. 700, 208 S.E.2d 676 (1974).

Contempt Statute Requirement Satisfied by Service Under Subdivision (j)(1)c. - Where, pursuant to subdivision (j)(1)c, court issued an order notifying a foreign attorney of contempt charges and allowing him 60 days to respond to the charges, and mailed the order to the attorney at the address he gave the court in a motion to be admitted in a case pro hac vice, this method of service was proper to comply with the requirement of G.S. 5A-15(a) that a copy of the order must be furnished to the person charged, where the court had personal jurisdiction as provided in G.S. 1-75.4. In re Smith, 45 N.C. App. 123, 263 S.E.2d 23, rev'd on other grounds, 301 N.C. 621, 272 S.E.2d 834 (1980).

The language of former subdivision (j)(1)c and subsection (j)(9) of this rule makes no reference to home or office; it requires simply that a complaint sent by certified mail be addressed to the party to be served, and be delivered to the addressee only. Waller v. Butkovich, 584 F. Supp. 909 (M.D.N.C. 1984).

Service of Process by Registered Mail Held Proper. - Where the trial court had jurisdiction over nonresident defendant by reason of a contract to convey land situated in North Carolina, substituted service of process by registered mail, return receipt requested, was a proper means of acquiring personal jurisdiction over defendant, and the requirements of due process and notice were afforded him. Chadbourn, Inc. v. Katz, 21 N.C. App. 284, 204 S.E.2d 201, aff'd, 285 N.C. 700, 208 S.E.2d 676 (1974).

Mortgagee was a party to proceedings to sell a decedent's estate's assets, including land on which the mortgagee held a lien, because, despite not being named in the petition's caption, (1) the mortgagee did not rebut a presumption created by an affidavit of service that the mortgagee received notice of the proceeding, and (2) the mortgagee's admissions demonstrated the mortgagee's receipt of service. Nationstar Mortg. LLC v. Curry, 262 N.C. App. 218, 822 S.E.2d 122 (2018).

Service by Certified Mail on Prison Inmate. - In a proceeding for termination of paternal rights, certified mail return receipt and defendant father's filed petition showed sufficient compliance with the service of process rules to raise a rebuttable presumption of valid service, which defendant did not rebut, where: (1) copies of the summons and complaint were sent by certified mail to the correctional institution where defendant was an inmate; (2) a certified receipt was signed and returned, presumably by a prison employee of suitable age and discretion authorized to sign the receipt on behalf of defendant; and (3) 18 days after service, defendant filed a petition for appointment of counsel. In re Williams, 149 N.C. App. 951, 563 S.E.2d 202 (2002).

Presumption of Service of Request Proper. - Plaintiff was presumed to have been properly served with request for admissions, despite denying receipt, where defendants presented a copy of a return receipt signed by the defendant's husband, plaintiff conceded it was sent to the correct address, and plaintiff made no attempt to rebut receipt when questioned by the trial court. Goins v. Puleo, 350 N.C. 277, 512 S.E.2d 748 (1999).

Service by Certified Letter Insufficient. - Where plaintiff's sole attempt at personal service of notice consisted of a certified letter mailed to the business address of a partnership, a postal box number, this solitary venture constituted neither application of "due diligence" as required by subsection (j1) nor a "reasonable and diligent effort" as required by G.S. 45-21.16(a). Barclays American/Mortgage Corp. v. BECA Enters., 116 N.C. App. 100, 446 S.E.2d 883 (1994).

Affidavit Mandatory. - Requirement of an affidavit containing information showing the circumstances warranting the use of service by registered mail under former subdivision (j)(9)b, which affidavit constituted proof of service, was mandatory. Dawkins v. Dawkins, 32 N.C. App. 497, 232 S.E.2d 456 (1977).

Affidavit by Spouse on Service Sufficient in Divorce Action. - District court properly acquired personal jurisdiction over a defending wife in a divorce action based on the husband's affidavit of service by certified mail and attachments thereto with the wife's signature appearing thereon that the summons and complaint were personally served upon the wife. Wilson v. Wilson, 191 N.C. App. 789, 666 S.E.2d 653 (2008).

Service of Petition to Review Unemployment Compensation Denial. - Employee's petition to review an unemployment compensation denial was properly dismissed because (1) G.S. 96-15(h) required the petition's actual delivery, under G.S. 1A-1, N.C. R. Civ. P. 4, rather than mailing under G.S. 1A-1, N.C. R. Civ. P. 5, as the statute required "certified mail, return receipt requested," emphasizing actual delivery and closely mirroring G.S. 1A-1, N.C. R. Civ. P. 4(j), and (2) the petition was not delivered. Isenberg v. N.C. DOC, 241 N.C. App. 68, 772 S.E.2d 97 (2015), review denied, 776 S.E.2d 849, 2015 N.C. LEXIS 987 (2015).

Service in Foreign Countries. - Service of summons addressed to the defendant in care of his mother at an address in South Africa, the home of defendant's brother, was sufficient where clerk's certificate reflected that the return receipt indicated the complaint and summons were in fact received at the stated address by the individual whose signature appeared thereon. Hocke v. Hanyane, 118 N.C. App. 630, 456 S.E.2d 858 (1995).

Reception by Agent. - The requirements for service of process were met, where service of process by certified mail addressed to the defendant at his law office was received and signed for by his employee and then directed to the defendant. Fender v. Deaton, 130 N.C. App. 657, 503 S.E.2d 707 (1998).

Regarding a breach of contract action filed against an individual and his business entities, where a civil summons addressed to the individual was sent to him via U.S. Postal Service by certified mail, return receipt requested; the summons was delivered and a signature was obtained on the registry receipt; and the medical center executed an affidavit attesting to such facts, attaching the registry receipt bearing a signature showing delivery of the summons, such uncontradicted evidence complied with the statutory requirements of G.S. 1A-1, Rule 4 and gave rise to the rebuttable presumption under G.S. 1A-1, Rule 4(j2)(2) of proper service. Granville Med. Ctr. v. Tipton, 160 N.C. App. 484, 586 S.E.2d 791 (2003).

Reception by Mother. - Trial court erred in granting defendant's motion to dismiss plaintiff's negligence action for improper service of process because by filing a copy of the signed return receipt, along with an affidavit that comported with G.S. 1-75.10, plaintiff was entitled to a rebuttable presumption of valid service. Defendant did not state or otherwise present any evidence that his mother, who signed for the civil summons and complaint, was not authorized to accept service for him; the G.S. 1A-1-4(j)(1)(c) requirements for service of process were met. Carpenter v. Agee, 171 N.C. App. 98, 613 S.E.2d 735 (2005).

Where a return of service indicated that service was made on defendant at his place of employment via certified mail, defendant did not overcome the presumption of valid service under G.S. 1A-1, N.C. R. Civ. P. 4(j)(2), because defendant presented only his individual affidavit challenging the service, rather than presenting the affidavits of more than one person. Corbett v. Keller, - F. Supp. 2d - (E.D.N.C. Feb. 10, 2012).

For case holding that one can be held to answer without production of actual registry return receipt, see Sparrow v. Goodman, 376 F. Supp. 1268 (W.D.N.C. 1974), decided under former subsection (j)(9).

Challenge to Service by Mail Insufficient. - Prison doctor's claim that a former inmate had not effected proper service on the doctor with regard to a 42 U.S.C.S. § 1983 complaint failed where the only support for the challenge was the doctor's own affidavit. Clark v. Keller, - F. Supp. 2d - (E.D.N.C. Aug. 17, 2011).

III. SERVICE ON COUNTIES, MUNICIPALITIES AND OTHER LOCAL PUBLIC BODIES.

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Notice of Service. - Library patron's service to a regional library system was proper even though he misnamed the system because it was a simple misnomer and the system clearly had notice of the action and should have known that the action was brought against the system based on the enforcement of its Internet policy. Miller v. Northwest Region Library Bd., 348 F. Supp. 2d 563 (M.D.N.C. 2004).

Service of process is not legally defective simply because the complaint misnames the defendant in some insignificant way, because a suit at law is not a children's game, but a serious effort on the part of adult human beings to administer justice, and the purpose of process is to bring parties into court; if the complaint names the defendant in such terms that every intelligent person understands who is meant, it has fulfilled its purpose, and courts should not put themselves in the position of failing to recognize what is apparent to everyone else. Miller v. Northwest Region Library Bd., 348 F. Supp. 2d 563 (M.D.N.C. 2004).

Substituted Personal Service. - Subsection (j)(5) of this rule does not provide for substituted personal process on any persons other than those named in provisions (j)(5)a and (j)(5)d. Johnson v. City of Raleigh, 98 N.C. App. 147, 389 S.E.2d 849 (1990).

Personal Service on Acting City Manager. - Two affidavits relevant to personal delivery to acting city manager, one of those persons named in subdivision (j)(5)a of this rule, established valid service on city for purposes of a negligence action. Crabtree v. City of Durham, 136 N.C. App. 816, 526 S.E.2d 503 (2000).

County attorney is not authorized to accept service for the county. Service on the county manager or on the chairman, clerk or any member of the board of commissioners is necessary for service upon the county to be effective. In re Brunswick County, 81 N.C. App. 391, 344 S.E.2d 584 (1986).

Service by Mail. - Service is effected on local public units and bodies by mailing a copy of the summons and complaint to an officer, director, agent, or attorney of the body authorized to accept service on its behalf pursuant to G.S. 1A-1, Rule 4(j)(5)(c). Miller v. Northwest Region Library Bd., 348 F. Supp. 2d 563 (M.D.N.C. 2004).

County Hospital Authority. - Defendant hospital's motion to dismiss for insufficiency of process and insufficiency of service of process would be denied without prejudice to file a renewed motion if plaintiffs did not properly serve defendant within ten days of filing of court's order, where defendant was misnamed, in that the caption read "Onslow Memorial Hospital, Incorporated," while defendant's actual name was the "Onslow County Hospital Authority," and where the complaint was served on the hospital administrator, who was not authorized to accept service for the hospital, since dismissal is not justified where it appears that service can be properly made. Coastal Neuro-Psychiatric Assocs. v. Onslow County Hosp. Auth., 607 F. Supp. 49 (E.D.N.C. 1985).

Leaving Process with Spouse Not Permitted Under Subdivision (j)(5)c. - The service of process in subdivision (j)(5)c of this rule explicitly requires personal service on certain named officials or agents, and does not permit leaving the process with other persons, even spouses, as is allowed where the action is against a "natural" person. Long v. Cabarrus County Bd. of Educ., 52 N.C. App. 625, 279 S.E.2d 95 (1981).

The court erred in exercising jurisdiction over the Employment Security Commission (now Division of Employment Security (DES) of the Department of Commerce), which was never properly served with process, did not consent to personal jurisdiction, and did not voluntarily appear in the case. Croom v. DOC, Div. of Empl. Sec., 143 N.C. App. 493, 547 S.E.2d 87 (2001).

Service Requirements for a Petition for Judicial Review of an Agency Decision - - Conn. Gen. Stat. § 150B-46 deals with the service of a petition for judicial review of an agency decision, while G.S. 1A-1, N.C. R. Civ. P. 4 applies generally to service in all civil matters; since § 150B-46 is more specific and there is no legislative intent to the contrary, its terms control the service requirements for a petition for judicial review of an agency decision. Follum v. N.C. State Univ., 198 N.C. App. 389, 679 S.E.2d 420 (2009).

To Whom Process May be Delivered for Service on State Administrative Agency. - Pro se plaintiff complied with the rules for serving a state administrative agency with the complaint and summons because the plaintiff's proof of service showed that the plaintiff sent by certified mail a copy of the complaint to the chief executive officer or process agent for the agency. Huggins v. N.C. Dep't of Admin., N.C. Human Relations Comm'n, - F. Supp. 2d - (E.D.N.C. Sept. 1, 2011), overruled 2012 U.S. Dist. LEXIS 22905 (E.D.N.C. 2012), dismissed 2012 U.S. App. LEXIS 2018 (4th Cir. N.C. 2012).

Service Held Defective. - Trial court did not err in granting a city's motion to dismiss for insufficient service of process because the service on the city was defective; the summons and complaint were not addressed to either the mayor, city manager, or clerk. Washington v. Cline, 230 N.C. App. 396, 750 S.E.2d 843 (2013), sub. op. 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (N.C. Ct. App. 2014).

Service on a city was defective because the summons and complaint were not addressed to either the mayor, city manager, or clerk but were addressed to the city attorney; delivery to the city attorney, although technically delivery to the addressee, was insufficient to confer jurisdiction over the city because he was not a named official capable of receiving service on behalf of the city. Washington v. Cline, 233 N.C. App. 412, 761 S.E.2d 650 (2014).

Service on State Rather Than Agencies Proper. - In an adversary proceeding brought by the liquidating agent for a debtor to recover transferred funds under the Bankruptcy Code and under North Carolina's Uniform Fraudulent Transfer Act, service on the state, rather than on two state agencies, was proper, as the state was the transferee because payment to a state agency was tantamount to payment to the state itself. Thus, the state was the initial transferee. Finley Group v. N.C. (In re Redf Mktg., LLC), - Bankr. - (Bankr. W.D.N.C. Mar. 10, 2015).

IV. SERVICE ON CORPORATIONS.

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Subdivision (j)(6)a is like federal Rule 4(d)(3) in that it provides for service on a foreign corporation by delivery of the summons to a "managing agent." Witcher v. Mac Tools, Inc., 62 F.R.D. 708 (M.D.N.C. 1974).

Subdivision (j)(6)a has the same scope as federal Rule 4(d)(3), as it only covers "managing agent," and not any other agent, either expressly or impliedly authorized. Witcher v. Mac Tools, Inc., 62 F.R.D. 708 (M.D.N.C. 1974).

Subdivision (j)(6)b Contrasted with Federal Rule. - While subdivision (j)(6)b of this rule permits service on a corporation by serving process upon an agent authorized by appointment or by law in a manner specified by any statute, the federal rule requires service on the corporation itself, "in the manner prescribed by any statute." Thus, under North Carolina law any statute setting forth alternative means of serving such an agent may be considered, while under federal law consideration is limited to statutes providing means of serving corporations. Great Dane Trailers, Inc. v. North Brook Poultry, Inc., 35 N.C. App. 752, 242 S.E.2d 533 (1978).

To Whom Process May Be Delivered for Service on Corporation. - When service of process is made upon a corporation, the summons must be served upon a person who is either an officer, director, or managing agent of the corporation, or one managing his office at the time, an agent expressly or impliedly appointed by the corporation to receive process, an agent specified by statute to receive service, an agent implied in law, or an agent by estoppel. Simms v. Mason's Stores, Inc., 285 N.C. 145, 203 S.E.2d 769 (1974).

When the name of the defendant is sufficiently stated in the caption of the summons and in the complaint, such that it is clear that the corporation, rather than the officer or agent receiving service, is the entity being sued, the summons, when properly served upon an officer, director or agent is adequate to bring the corporate defendant within the trial court's jurisdiction. Harris v. Maready, 64 N.C. App. 1, 306 S.E.2d 799 (1983), rev'd on other grounds, 311 N.C. 536, 319 S.E.2d 912 (1984).

Plaintiff adequately complied with the service of process requirements outlined in sections (b) and (j) of this rule, where plaintiff attempted to serve defendant by its registered agent, an attorney, without specifically stating it was serving her as the agent of the defendant. RPR & Assocs. v. State, 139 N.C. App. 525, 534 S.E.2d 247 (2000), aff'd, 353 N.C. 543, 543 S.E.2d 480 (2001).

Defendant store's motion to dismiss stated with sufficient particularity the grounds alleged by citing G.S. 1A-1, Rule 12(b)(4) and 12(b)(5) and specified that plaintiffs, a husband and wife, failed to properly serve it as a corporation and instead served a mailroom employee; fact that the store filed the affidavit of the mailroom employee after its motion was insignificant, because the trial court gave plaintiffs the opportunity to respond and oppose the amended motion. Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 609 S.E.2d 456 (2005).

Service against defendant employer was not effected sufficiently since the manager that accepted service was not in fact an appropriate agent to receive service (the manager did not have the broad executive responsibilities expected of an agent designated to receive service, nor did she serve as an officer or a managing or general agent of the employer). McDaniel v. Greyhound Lines, Inc., - F. Supp. 2d - (W.D.N.C. July 7, 2008), appeal dismissed, 305 Fed. Appx. 80 (4th Cir. 2008).

Amendment of Process to Change Party from Corporation to Individual. - In general, courts are more reluctant to permit amendment of process or pleadings to change a description of a party as an individual or partnership to that of a corporation than they are to permit amendment to change the description of a party as a corporation to that of an individual or partnership, because of the prescribed statutory method of serving a corporation. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

Subsection (j)(6) contemplates service on agents either expressly or impliedly appointed by the corporation as agents to receive process. Simms v. Mason's Stores, Inc., 18 N.C. App. 188, 196 S.E.2d 545 (1973), rev'd on other grounds, 285 N.C. 145, 203 S.E.2d 769 (1974).

The phrase "an agent authorized . . . by law to be served" includes within its scope State statutes vesting authority in certain persons to receive process, agencies implied in law, and agencies by estoppel. Simms v. Mason's Stores, Inc., 18 N.C. App. 188, 196 S.E.2d 545 (1973), rev'd on other grounds, 285 N.C. 145, 203 S.E.2d 769 (1974).

Subdivision (j)(6)a does not require that the person upon whom summons is served be in fact in charge of the office of the officer, director or managing agent of the corporation, but merely that the person be "apparently in charge." Williams v. Burroughs Wellcome Co., 46 N.C. App. 459, 265 S.E.2d 633 (1980).

Under this rule, service may be had on a corporation by leaving a copy of the summons and complaint in the office of the president of the corporation with the person who is apparently in charge of the office. Carolina Paper Co. v. Bouchelle, 285 N.C. 56, 203 S.E.2d 1 (1974).

Who Is "Managing Agent". - The question of who may be a "managing agent" upon whom service of process is authorized depends upon the facts and circumstances of the particular case, and the trial court's finding that a personnel manager was an employee in a "management position" of defendant does not resolve that question. Williams v. Burroughs Wellcome Co., 46 N.C. App. 459, 265 S.E.2d 633 (1980).

A general or managing agent must be invested with powers of discretion and must exercise judgment in his duties, rather than being under direct superior control as to the extent of his duty and the manner in which he executes it. Witcher v. Mac Tools, Inc., 62 F.R.D. 708 (M.D.N.C. 1974).

Managing Agent Must Have More Than Sporadic Authority. - It is reasonable to expect that a managing agent will have broad executive responsibilities and that his relationship will reflect a degree of continuity. Authority to act as agent sporadically or in a single transaction ordinarily does not satisfy this provision of the rule. Witcher v. Mac Tools, Inc., 62 F.R.D. 708 (M.D.N.C. 1974).

Local Distributor Not Managing Agent. - The role played by a local distributor in assigning territory and assisting the distributors within his overall territory, from whose sales he receives a commission as an independent contractor, does not make him a "managing agent" within the meaning of this rule. Witcher v. Mac Tools, Inc., 62 F.R.D. 708 (M.D.N.C. 1974).

Service on Security Officer of Corporation-Owned Store. - Attempted service upon defendant corporation in an assault action by delivery of summons and complaint to a security officer who was standing near a cash register in defendant's place of business, whom deputy sheriff had seen as a court witness for defendant, and on whom the deputy had served subpoenas on prior occasions, was void, and the trial court did not obtain jurisdiction over defendant thereby, since the security officer was not an officer, director or managing agent of defendant's store, nor was he a person apparently in charge in the manager's office, an agent authorized to accept service by appointment or an agent authorized to accept service by law under subsection (j)(6) of this rule. Simms v. Mason's Stores, Inc., 18 N.C. App. 188, 196 S.E.2d 545 (1973), rev'd on other grounds, 285 N.C. 145, 203 S.E.2d 769 (1974).

Substitute Service Improper. - Where plaintiff's attorney had actual knowledge of an address where defendant could be served and did not attempt to serve defendant at the known address, substitute service of process on the Secretary of State was ineffective and violated defendant's due process rights. Interior Distribs., Inc. v. Hartland Constr. Co., 116 N.C. App. 627, 449 S.E.2d 193 (1994).

Service on Division of Corporation Not Service on Corporation. - Complaint and summons directed to a defendant named as "MICHIGAN TOOL COMPANY, A Division of Ex-Cell-O Corporation" is not service on the entity Ex-Cell-O Corporation, even if the complaint and summons reach the hands of someone obligated to receive service in behalf of Ex-Cell-O, since Ex-Cell-O was not a named party defendant. Crawford v. Aetna Cas. & Sur. Co., 44 N.C. App. 368, 261 S.E.2d 25 (1979), cert. denied, 299 N.C. 329, 265 S.E.2d 394 (1980).

Service on Insurance Companies - Although the Motor Vehicle Safety and Financial Responsibility Act, G.S. 20-279.1 et seq., does not expressly require that separate process be issued for an uninsured motorist carrier, it does specifically require that a "copy" of the summons and complaint be served on the insurer, and the appellate courts have required strict compliance with the statutes that provide for service of process on insurance companies. Thomas v. Washington, 136 N.C. App. 750, 525 S.E.2d 839 (2000).

Where valid service of process was not made upon an uninsured motorist carrier pursuant to N.C. Civ. R. P. 4(j)(6) within the applicable statute of limitations period set forth in G.S. 20-279.21(b)(3)(a) (2013), the trial court did not err in granting the motion of the uninsured motorist carrier to dismiss a personal injury claim for insufficient process or insufficient service of process. Davis v. Urquiza, 233 N.C. App. 462, 757 S.E.2d 327 (2014).

Presumption of Proper Service Rebutted. - Defendant successfully rebutted presumption that plaintiff's attempted service was proper under subdivision (j)(6)c of this rule, because defendant proved that the person who received and signed for service was not acting as an agent for defendant and was not authorized to receive and sign for certified mail. Motorsports v. Pharbco Mktg. Group, Inc., 104 F. Supp. 2d 590 (M.D.N.C. 2000).

Presumption of Proper Service Not Rebutted. - Corporation's affidavit, submitted pursuant to G.S. 1-75.10(4), was insufficient to rebut the presumption of service of process under G.S. 1A-1, N.C. R. Civ. P. 4(j)(2) because the corporation's evidence that service was not made was equivocal in nature; because 28 U.S.C.S. § 1446(b) was to be construed narrowly, the court refused to exercise its discretion in overlooking the 30-day time limit requirement for notice of removal, found that the corporation's notice was not timely, and granted the individuals' motion to remand. Cline v. Fairbanks Capital Corp., - F. Supp. 2d - (M.D.N.C. May 20, 2004).

It was no error to deny a mortgagee's motion to set aside a homeowners' association's foreclosure because (1) the mortgagee had notice mailed to an address the mortgagee gave in prior communications, and (2) the mortgagee did not timely object within one year. In re Foreclosure of Real Prop. Under Deed of Trust from Garrett, 250 N.C. App. 358, 795 S.E.2d 1 (2016).

Service Held Invalid. - Where the evidence tended to show that service of process upon corporate defendant was attempted by delivering copies of the summons and complaint to an individual who at that time was neither the agent of the corporate defendant nor authorized to receive service of process in its behalf, such evidence was sufficient to support the trial court's findings that defendant was not properly served. Tinkham v. Hall, 47 N.C. App. 651, 267 S.E.2d 588 (1980).

Court held that plaintiff, who served process on defendant's claims examiner via regular mail and received several letters from senior corporate counsel concerning suit, had not met the requirements of this section; she had at least four months to cure the defect in service prior to the expiration of the statute of limitations. Fulton v. Mickle, 134 N.C. App. 620, 518 S.E.2d 518 (1999).

Appellate court found that service of process was not sufficient to give the trial court personal jurisdiction over defendant where service was by mailing a copy of the summons and complaint by regular mail rather than certified mail, and mailing of the summons and complaint occurred before the documents had been filed or signed by the Clerk of Court. Thomas & Howard Co. v. Trimark Catastrophe Servs., 151 N.C. App. 88, 564 S.E.2d 569 (2002).

District court allowed a loan company's motion to dismiss pro se plaintiffs' complaint alleging unfair and deceptive trade practices because plaintiffs failed to submit a summons for the company to the clerk of court, as required by Fed. R. Civ. P. 4(b), despite a reminder from the clerk to do so, and they had not effected proper service on the company, pursuant to N.C. R. Civ. P. 4(j)(6)(c), by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, addressed to an officer, director, or authorized agent of the company; because the complaint was dismissed for lack of proper service, the court did not have to address the company's claim that plaintiffs' claims were discharged in bankruptcy. Brissett v. Freemont Inv. & Loan Corp., - F. Supp. 2d - (E.D.N.C. July 29, 2010).

It was not error to dismiss a complaint against a medical center because service of process on the medical center by a private process server was unauthorized, despite the filing of an affidavit of service, as the sheriff was the proper person to serve process, and there was no showing that the sheriff was unable to deliver service. Locklear v. Cummings, 253 N.C. App. 457, 801 S.E.2d 346 (2017).

Determining Party to Whom Summons Directed. - Fundamental fairness requires that a summons should be of sufficient particularity so as to leave no reasonable doubt as to whom it is directed. However, this requirement does not force the courts to overlook the obvious when determining the validity of a summons. Wearring v. Belk Bros., 38 N.C. App. 375, 248 S.E.2d 90 (1978).

Where although the proper defendant in the case was misnamed in the captions on the summons and complaint as Inter-Regional Financial Group Leasing Company (an apparently nonexisting company), the summons was properly directed to IFG Leasing Company, and that was the enterprise that copies of the summons and complaint were properly served on three times, the misstatement of defendant's name in the captions was a harmless misnomer and without jurisdictional significance, and the court did not err in permitting the misnomer to be corrected by appropriate amendments. Paramore v. Inter-Regional Fin. Group Leasing Co., 68 N.C. App. 659, 316 S.E.2d 90 (1984).

Name of Corporate Defendant to Be Sufficiently Stated. - When the name of the defendant is sufficiently stated in the caption of the summons and in the complaint, such that it is clear that the corporation, rather than the officer or agent receiving service, is the entity being sued, the summons, when properly served upon an officer, director or agent specified in subsection (j)(6) is adequate to bring the corporate defendant within the trial court's jurisdiction. Wiles v. Welparnel Constr. Co., 295 N.C. 81, 243 S.E.2d 756 (1978), overruling the line of cases represented by Plemmons v. Improvement Co., 108 N.C. 614, 13 S.E. 188 (1891); Hassell v. Steamboat Co., 168 N.C. 296, 84 S.E. 363 (1915); Russell Manufacturing Co., 266 N.C. 531, 146 S.E.2d 459 (1966) and Ready Mix Concrete v. Sales Corp., 30 N.C. App. 526, 227 S.E.2d 301 (1976), to the extent that such cases are inconsistent with this holding; Gro-Mar Pub. Relations, Inc. v. Billy Jack Enter., Inc., 36 N.C. App. 673, 245 S.E.2d 782 (1978).

Process Held Sufficient to Show Suit Against Corporation. - In a negligence action against a corporation, there was no insufficiency in the service of process even though the directory paragraph of the summons contained the name of an officer of the corporation, where the caption of the summons and the complaint clearly indicated that the corporation was being sued. Wearring v. Belk Bros., 38 N.C. App. 375, 248 S.E.2d 90 (1978).

Where defendant insurance corporation's statutory agent for service of process in Connecticut was served with a copy of summons, service of process was sufficient to apprise defendant that it was the party being sued. Thus, if the court had jurisdiction over the defendant, the service of process was sufficient under subsection (j)(6) of this rule. Parris v. Garner Com. Disposal, Inc., 40 N.C. App. 282, 253 S.E.2d 29, cert. denied, 297 N.C. 455, 256 S.E.2d 808 (1979).

Where a corporation was not confused as to whether or not it was a party to the lawsuit, the requirements for service of process, as required under G.S. 1A-1, N.C. R. Civ. P. 4, were met. Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 606 S.E.2d 407 (2005).

Accident victim obtained jurisdiction over a utility because service was properly established under G.S. 1A-1, N.C. R. Civ. P. 4(j2)(2), by the victim's sending the summons and complaint to the utility's registered agent, and receiving back the signed delivery receipt. Further, nothing in an affidavit filed by the utility overcame the presumption created by the rule. Ruiz v. Mecklenburg Utils., Inc., 189 N.C. App. 123, 657 S.E.2d 432 (2008).

Service of process was properly obtained upon a third-party defendant corporation by the third-party plaintiff serving the corporation's registered agent by certified mail, return receipt requested, in accordance with N.C. R. Civ. P. 4(j)(6)(c). Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162 (2012), review denied, 743 S.E.2d 189, 2013 N.C. LEXIS 531 (2013).

Service on Wrong Agent Properly Kept Alive. - Suit which was properly instituted against corporate defendant within the statute of limitations period but which was served on the wrong agent was properly kept alive by alias and pluries summons until service was properly made upon a corporate officer. Tyson v. L'eggs Prods., Inc., 84 N.C. App. 1, 351 S.E.2d 834 (1987).

When Service Binds Corporation. - Service of process upon a corporation's registered agent binds that corporation when the agent is served, not when the service actually comes to the attention of an officer or agent charged with defending actions against the corporation. Anderson Trucking Serv., Inc. v. Key Way Transp., Inc., 94 N.C. App. 36, 379 S.E.2d 665 (1989).

Initial Receipt of Summons by Employee. - Service upon registered agent was effective service upon company; it made no difference that the summons and complaint addressed to registered agent were initially received by employee of registered agent, since employee was authorized by registered agent to receive mail on his behalf. Anderson Trucking Serv., Inc. v. Key Way Transp., Inc., 94 N.C. App. 36, 379 S.E.2d 665 (1989).

Service on Agent Under Assumed Corporate Name. - Where at the time that plaintiffs instituted their action, corporation had not complied with G.S. 66-68, but was actively conducting business under an assumed name and holding itself out to the public and to its employees under that name, and where service of process was accomplished upon a corporate agent who might have been expected to know that the assumed name was a name used by the corporation, corporation was adequately served with sufficient legal process under its assumed name, and the trial court had jurisdiction. Tyson v. L'eggs Prods., Inc., 84 N.C. App. 1, 351 S.E.2d 834 (1987).

Agent's Authority to Receive Service had to be Determined. - As a delivery receipt was signed by the recipient of the delivery, under N.C. R. Civ. P. 4(j2)(2), there was a rebuttable presumption that he was an agent of the addressee authorized to accept service. Thus, the trial court, in vacating a default judgment pursuant to N.C. R. Civ. P. 60(b)(4) based on improper service, erred in not considering the contested issue of whether the recipient was actually or impliedly authorized to receive service on behalf of defendant corporation. Dougherty Equip. Co. v. M.C. Precast Concrete, Inc., 212 N.C. App. 509, 711 S.E.2d 505 (2011).

Extraterritorial Service. - Since subsection (j)(6) of this rule permits out-of-state service of process, a plaintiff in a federal court case in North Carolina is entitled to reach beyond North Carolina borders to serve a corporate defendant. Southern Pride, Inc. v. Turbo Tek Enters., Inc., 117 F.R.D. 566 (M.D.N.C. 1987).

While plaintiff, after an unsuccessful attempt at federal mail service, was limited to the federal method of personal service, plaintiff was nonetheless permitted, under FRCP, Rule 4(e), to rely on subdivision (j)(6) of this rule as authority for extraterritorial service on defendant. Southern Pride, Inc. v. Turbo Tek Enters., Inc., 117 F.R.D. 566 (M.D.N.C. 1987).

Service on Franchisor Not Service on Franchisee. - Where complaint and summons named as defendant "Ramada Inn, Inc." (the franchisor), and not "Ramada Inn" (the trade name used by franchisee, a separate corporate entity), and service of process was accomplished upon the registered agent of Ramada Inn, Inc., such service could not be deemed to constitute service upon franchisee. Under these circumstances, franchisee was never made a party to the action. Hayman v. Ramada Inn, Inc., 86 N.C. App. 274, 357 S.E.2d 394, petition denied as to additional issues, 320 N.C. 631, 360 S.E.2d 87 (1987).

Defective Service Defense Not Waived. - Where, after defendant was served, its counsel immediately notified plaintiff of defect in service, invited proper service upon it, and advised it how a correction could be made, and where a default judgment had not yet been entered, but only entry of default, plaintiff's claim that defendant had waived any defenses it might have had to lack of jurisdiction by reason of defective service would be rejected. United States ex rel. Combustion Sys. Sales, Inc. v. Eastern Metal Prods. & Fabricators, Inc., 112 F.R.D. 685 (M.D.N.C. 1986).

General Appearance Waives Right to Challenge Service of Process. - Where the person who was served with a summons directed to a corporation attended the Small Claims Division proceedings and fully participated on the corporation's behalf, the corporation made a general appearance and thus waived its right to challenge proper service of process; the trial court erred in reversing a judgment entered by a Small Claims Division magistrate based on invalid service. Woods v. Billy's Auto., 174 N.C. App. 808, 622 S.E.2d 193 (2005).

Service on Other Defendant Did Not Relate Back to Original Summons. - Since the original summons was not directed to the corporation but to a different defendant, a later summons against the corporation did not relate back to the original summons, and since there was not a properly directed summons that was merely not served, G.S. 1A-1-4(d) did not apply and the later summons was not a valid alias or pluries summons; thus, service on the corporation fell outside of the authorized time and the case was not filed within the one year period required by G.S. 1A-1-41(a)(1). Stack v. Union Reg'l Mem'l Med. Ctr., Inc., 171 N.C. App. 322, 614 S.E.2d 378 (2005), cert. denied, 360 N.C. 66, 621 S.E.2d 877 (2005).

Alias And Pluries Summons. - Where an alias and pluries summons was properly served upon the Secretary of State, service as to defendant contractor was effective. Builders Mut. Ins. Co. v. Doug Besaw Enters., 242 N.C. App. 254, 775 S.E.2d 681 (2015).

V. SERVICE BY PUBLICATION.

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Service of process by publication is in derogation of the common law. Edwards v. Edwards, 13 N.C. App. 166, 185 S.E.2d 20 (1971); Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974) (1974); Emanuel v. Fellows, 47 N.C. App. 340, 267 S.E.2d 368, cert. denied, 301 N.C. 87, 273 S.E.2d 296 (1980).

Statutes authorizing substituted service of process, service of publication, or other particular methods of service are in derogation of the common law, are strictly construed, and must be followed with particularity. Hunter v. Hunter, 69 N.C. App. 659, 317 S.E.2d 910 (1984).

Thus, statutes authorizing service of process by publication are strictly construed, both as grants of authority and in determining whether service has been made in conformity with the statute. Edwards v. Edwards, 13 N.C. App. 166, 185 S.E.2d 20 (1971); Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974) (1974); Emanuel v. Fellows, 47 N.C. App. 340, 267 S.E.2d 368, cert. denied, 301 N.C. 87, 273 S.E.2d 296 (1980).

This rule is appropriate only where a civil litigant's whereabouts are unknown, and the due diligence requirement contained therein is clear. In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, cert. denied and appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985).

Publication in County Where Action Is Pending. - Whereas defendant's last know address was in Wake County and despite reasonable efforts, plaintiff had "no reliable information" as to the defendant's whereabouts, publication was proper in the county in which the action was pending. Winter v. Williams, 108 N.C. App. 739, 425 S.E.2d 458 (1993).

Publication in County Where Action Not Pending. - Trial court did not have personal jurisdiction over a defendant because the notice of service by publication identified the wrong county as the county in which the action was filed. Connette v. Jones, 196 N.C. App. 351, 674 S.E.2d 751 (2009).

Issuance of a summons is not essential to validity of service of process by publication upon a party to a civil action whose address, whereabouts, dwellinghouse or usual place of abode is unknown and cannot with due diligence be ascertained. McCoy v. McCoy, 29 N.C. App. 109, 223 S.E.2d 513 (1976), decided under former subdivision (j)(9)c.

Service by publication, begun more than 90 days after the last alias and pluries summons, will not revive an otherwise discontinued action. County of Wayne ex rel. Williams v. Whitley, 72 N.C. App. 155, 323 S.E.2d 458 (1984).

A change has been made by this rule in regard to the requirements of a mailing. Under the prior law the clerk of court, rather than the plaintiff, was the person required to mail a copy of the notice of service of process by publication to the defendant. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974) (1974).

When Mailing Notice of Service May Be Omitted. - The mailing of the notice of service of process by publication to defendant's address may be omitted only if the post-office address cannot be ascertained in the exercise of reasonable diligence. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974) (1974).

This rule does not require an order of publication to be supported by an affidavit. Edwards v. Edwards, 13 N.C. App. 166, 185 S.E.2d 20 (1971).

But Plaintiff Must File Affidavit Showing Circumstances Warranting Service by Publication. - While this rule does not require an order of publication supported by an affidavit, in order to utilize service of process by publication it is necessary that plaintiff file with the court an affidavit showing the circumstances warranting such use. Edwards v. Edwards, 13 N.C. App. 166, 185 S.E.2d 20 (1971).

Mother failed to file an affidavit showing the circumstances warranting use of service by publication or showing her due diligence in attempting to locate the father; such failure constituted reversible error. Cotton v. Jones, 160 N.C. App. 701, 586 S.E.2d 806 (2003).

Filing of Affidavit "Upon Completion of Such Service". - Where no prejudice to defendant was shown, an affidavit showing publication and mailing in accordance with G.S. 1-75.10(2) was filed "upon completion of such service," even though the affidavit was not filed until after a motion to quash had been filed and some six months after the last day of publication. Philpott v. Johnson, 38 N.C. App. 380, 247 S.E.2d 781 (1978).

Service by Publication Invalid Where Personal Service Possible. - Where plaintiff could have effected personal service of process by leaving copies of the summons and court order at defendant's residence with a person of suitable age and discretion living there, but chose instead to institute service of process by publication, defendant was not subject to service of process by publication under former subdivision (j)(9)c of this rule, and the attempted service of process by means of publication was void. Sink v. Easter, 284 N.C. 555, 202 S.E.2d 138 (1974) (1974).

Language of G.S. 1A-1, N.C. R. Civ. P. 4 and 5, is clear and unambiguous and does not require service of notice of service of process by publication upon every party to the lawsuit; notice of service of process by publication only needs to be mailed to the party being served by publication, and this is only required if that party's post office address can be discovered with reasonable diligence. Jones v. Wallis, 211 N.C. App. 353, 712 S.E.2d 180 (2011).

Parental Rights Termination Case. - Where the "name or identity" of a respondent parent is known, but his or her whereabouts are unknown, the petitioner in a parental rights termination case must proceed under G.S. 7A-289.27 [see now G.S. 7B-1106] and must comply with section (j1) as regards service by publication, and specifically, with the due diligence requirement contained therein. In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, cert. denied and appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985).

Failure to attach custody order to petition to terminate parental rights or include statements within petition explaining petitioner's efforts to find parent, as required by G.S. 7A-289.25 [see now G.S. 7B-1104], where service was by publication, was not error which resulted in any prejudice to respondent, where service by publication complied with subdivision (j1) of this rule and informed respondent of the petition filed against her, her need to answer, the availability of counsel if she was indigent, and the telephone number of the Clerk of Juvenile Court if she needed further information. In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996).

Service of petition and summons to terminate parental rights by publication must comply with G.S. 7A-289.27 [see now G.S. 7B-1106] and subdivision (j1) of this rule. In re Joseph Children, 122 N.C. App. 468, 470 S.E.2d 539 (1996).

Purported service by publication on respondent in a proceeding to terminate parental rights was invalid where petitioner filed no affidavit showing publication and mailing in accordance with G.S. 1-75.10(2) and the circumstances warranting the use of service by publication, and the trial court found merely that it appeared to be "impractical" to obtain personal service and that the sheriff was unable to find respondent at his last known address in the county, there being no determination that respondent could not after due diligence be served or that his whereabouts or usual abode and his post-office address could not be determined with due diligence. In re Philips, 18 N.C. App. 65, 196 S.E.2d 59 (1973).

Divorce Decree Held Invalid for Violation of Mailing Requirements. - In an action to set aside a divorce decree, where plaintiff failed to mail a copy of the notice of service by publication to the defendant at her Virginia residence, plaintiff violated the technical requirements of former subdivision (j)(9)c and this defect was sufficient to render the resulting divorce decree invalid. Thomas v. Thomas, 43 N.C. App. 638, 260 S.E.2d 163 (1979).

Personal Notice to Purported Adverse Possessor Not Required. - Where a city, in a foreclosure action, gave personal notice to all the record owners of the property in question and notice by publication to all others having an interest in the disputed property who could not with due diligence be located, it was not required to give personal notice to a purported adverse possessor whose purported interest was not recorded. Overstreet v. City of Raleigh, 75 N.C. App. 351, 330 S.E.2d 643 (1985).

Foreclosure. - Mortgagor was properly served with process by posting because such service was proper when service by publication, under G.S. 1A-1, N.C. R. Civ. P. 4(j1), was allowed, and Rule 4(j1) was interpreted in the disjunctive, so a mortgagee did not have to try all other methods of service listed in the Rule. In re Powell, 237 N.C. App. 441, 768 S.E.2d 133 (2014).

Service by publication was void where plaintiff did not use diligence to ascertain addresses of the defendants, which were available to the plaintiff. See Fountain v. Patrick, 44 N.C. App. 584, 261 S.E.2d 514 (1980); In re Clark, 76 N.C. App. 83, 332 S.E.2d 196, cert. denied and appeal dismissed, 314 N.C. 665, 335 S.E.2d 322 (1985).

But where defendant had actual notice of the proceedings against him, he was not allowed to attack a default judgment as void on the grounds of lack of jurisdiction due to a failure to use due diligence to obtain personal service before service by publication. Creasman v. Creasman, 152 N.C. App. 119, 566 S.E.2d 725 (2002).

Conclusory Findings of Fact As to Service By Publication. - Judgment granting a summary judgment divorce was vacated as a conclusory finding was made that a wife had been properly served and that the trial court had jurisdiction over her, without making the findings necessary to support the conclusions, despite the facts that: (1) the husband attempted to serve the complaints on the wife at two different addresses, (2) the husband's affidavit of service by publication failed to state that the husband mailed a notice of service by publication to the wife before the first publication, and (3) the husband mailed the notice of hearing to the wife at a different address than he used during the second attempt at service of the complaint; no findings were made as to the use of service by publication by the husband or his due diligence in attempting to serve the wife, or that the husband was not required to mail notice of the service by publication to the wife before the first publication. Agbemavor v. Keteku, 177 N.C. App. 546, 629 S.E.2d 337 (2006).

G.S. 1A-1, N.C. R. Civ. P. 4(j1), requires "due diligence," not that a party explore every possible means of ascertaining the location of a defendant; a plaintiff is not required to jump through every hoop later suggested by a defendant in order to meet the requirement of "due diligence," this is particularly true when there is no indication in the record that any of the steps suggested by a defendant would have been fruitful. Jones v. Wallis, 211 N.C. App. 353, 712 S.E.2d 180 (2011).

Due Diligence. - Trial court did not abuse its discretion in denying defendant's motion to set aside the entry of default under G.S. 1A-1, N.C. R. Civ. P. 55(d) because plaintiff's actions constituted due diligence justifying the use of service of process by publication pursuant to G.S. 1A-1, N.C. R. Civ. P. 4(j1); plaintiff attempted service of defendant at his last known address, searched public records to find the address, attempted service on defendant, performed an Internet search for defendant, determined from the public records that the property had been foreclosed, and sent a copy of the complaint to defendant's attorney and requested that he accept service. Jones v. Wallis, 211 N.C. App. 353, 712 S.E.2d 180 (2011).

Mortgagee exercised due diligence in attempting to serve a mortgagor with notice of a foreclosure hearing, authorizing service by posting, since service by publication was authorized, because the mortgagee not only unsuccessfully attempted service by certified mail, return receipt requested, which would have sufficed, but the mortgagor also unsuccessfully attempted service by personal delivery. In re Powell, 237 N.C. App. 441, 768 S.E.2d 133 (2014).

Trial court properly set aside a divorce judgment because the judgment was void where the wife filed her motion shortly after receiving actual knowledge from the husband that he had obtained the judgment, and, although the husband possessed contact information for and remained in contact with the wife throughout the filing and disposition of the divorce proceedings, service by publication in the county where the action was pending was ineffective where the husband failed to exercise due diligence in attempting to locate the wife. Wenbin Chen v. Yaling Zou, 244 N.C. App. 14, 780 S.E.2d 571 (2015).

Trial court properly denied a property owner's motion to set aside an entry of default, default judgment, tax foreclosure sale, and commissioner's deed because the county's actions satisfied the due diligence requirement necessary to justify the use of service of process by publication where the county was aware based on extensive prior experience with the owner that it could not effect service of process on the owner by personal delivery or by registered or certified mail. Watauga Cty. v. Beal, 255 N.C. App. 849, 806 S.E.2d 338 (2017).

Plaintiff's single failed attempt at personal service at an address where defendant did not reside and a general internet search did constitute due diligence for purposes of G.S. 1A-1, N.C. R. Civ. P. 4(j1) where readily available resources were left unexplored, such as asking defendant's attorney or insurer to either provide defendant's contact information or accept service on defendant's behalf, or examining DMV or other public records. Because plaintiff failed to exercise due diligence, service of process by publication was improper, and the trial court correctly granted defendant's motion to dismiss the action for insufficient service of process. Henry v. Morgan, - N.C. App. - , 826 S.E.2d 475 (2019).

VI. AMENDMENT OF SUMMONS.

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This rule does not provide for any greater liberality of amendment than did former G.S. 1-163. Grace v. Johnson, 21 N.C. App. 432, 204 S.E.2d 723 (1974), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

The power of the court to allow amendment of process is discretionary and permits amendment to correct a misnomer or mistake in the name of a party. Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 450 S.E.2d 24 (1994), aff'd, 342 N.C. 404, 464 S.E.2d 46 (1995).

Limitation on Court's Discretion Under Section (i). - The broad discretionary power given the court by section (i) does not extend so far as to permit the court by amendment of its process to acquire jurisdiction over the person of a defendant where no jurisdiction had yet been acquired. Carl Rose & Sons Ready Mix Concrete v. Thorp Sales Corp., 30 N.C. App. 526, 227 S.E.2d 301 (1976), overruled on other grounds, Wiles v. Welparnel Constr. Co., 295 N.C. 81, 243 S.E.2d 756 (1978).

When Amendment of Summons Allowed. - Section (i) empowers the court to allow amendment of the summons at any time, in its discretion, unless it clearly appears that material prejudice would result to substantial rights of the party against whom the process issued. Grace v. Johnson, 21 N.C. App. 432, 204 S.E.2d 723 (1974), overruled on other grounds, Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Amendment Improper. - The named defendant in the original summons and complaint, "Winn Dixie Store, Inc.", was not a mistake or misdescription permitting the amendment of the summons where the name was the correct name of the wrong corporate party defendant, this was a substantive mistake which was fatal to the action. Franklin v. Winn Dixie Raleigh, Inc., 117 N.C. App. 28, 450 S.E.2d 24 (1994), aff'd, 342 N.C. 404, 464 S.E.2d 46 (1995).

Trial court did not abuse its discretion by denying arrestees' motion to amend the summons because it would confer jurisdiction over a city without proper service of process; because the arrestees failed to do send the summons and complaint addressed to either the city's mayor, city manager, or clerk, the trial court never acquired jurisdiction over the city. Washington v. Cline, 230 N.C. App. 396, 750 S.E.2d 843 (2013), sub. op. 761 S.E.2d 650, 2014 N.C. App. LEXIS 303 (N.C. Ct. App. 2014).

Trial court did not abuse its discretion by denying plaintiffs' motion to amend the summons because it would confer jurisdiction over the city without proper service of process; because plaintiffs failed to properly serve the city, the trial court never acquired jurisdiction over the city. Washington v. Cline, 233 N.C. App. 412, 761 S.E.2d 650 (2014).

An amended summons which adds a new party-defendant must be served upon each of the defendants. Harris v. Maready, 64 N.C. App. 1, 306 S.E.2d 799 (1983), rev'd on other grounds, 311 N.C. 536, 319 S.E.2d 912 (1984).

Amendment Held Appropriate - Trial court failed to exercise its discretion in denying plaintiff's motion to amend his summons under subsection (1) to substitute the correct county on the summons when there was no showing of any material prejudice to defendants; therefore the case was remanded to the Court of Appeals. Hazelwood v. Bailey, 339 N.C. 578, 453 S.E.2d 522 (1995).

Because an owner's G.S. 1A-1, N.C. R. Civ. P. 4(i), 15 motion to amend merely sought to correct the name of the guarantor, who was already before the court, and because the guarantor would have suffered no material prejudice by the amendment, the owner was entitled to amend the complaint to include the correct spelling of the guarantor's last name. Langley v. Baughman, 195 N.C. App. 123, 670 S.E.2d 913 (2009).

Forty-two days after the original complaint was filed, the plaintiff's counsel realized that the complaint was unsigned, undated, and unverified and filed an amendment to the complaint, under G.S. 1A-1, N.C. R. Civ. P. 15(a), which corrected the error before any responsive pleading was filed. The plaintiff's prompt remedial measures of filing an amended, signed complaint once the plaintiff discovered the mistake conferred subject matter jurisdiction on the trial court to enable it to deal with the substantive issues raised in the pleadings and were sufficient under G.S. 1A-1, N.C. R. Civ. P. 11 and 15 to prevent the original pleading from being stricken and the action from being dismissed. Estate of Livesay v. Livesay, 219 N.C. App. 183, 723 S.E.2d 772 (2012).

VII. DISCONTINUANCE AND EXTENSIONS.

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Extensions, Generally. - Section (c) of this rule requires that service of process occur within 30 days (now 60 days) after the issuance of the summons. The validity of the summons for service of process may be extended under section (d) of this rule by endorsement of the original summons or issuance of an alias or pluries summons within 90 days of the issuance or last prior endorsement of the original summons. As long as this chain of summonses is maintained, the service of summons will relate back to the original date of issuance. In re Searle, 74 N.C. App. 61, 327 S.E.2d 315 (1985), decided prior to 2001 amendment to subsection (c).

This rule specifically provides that where there is neither endorsement nor issuance of alias or pluries summons within 90 days after issuance of the last preceding summons, the action is discontinued as to any defendant not served within the time allowed and treated as if it had never been filed. Dozier v. Crandall, 105 N.C. App. 74, 411 S.E.2d 635, cert. denied, 332 N.C. 480, 420 S.E.2d 826 (1992).

Trial court erred in allowing plaintiffs' motion to retroactively extend the time period for issuing the alias and pluries summons since the action had been discontinued; trial courts do not have discretion pursuant to G.S. 1A-1, N.C. R. Civ. P. 6(b) to prevent a discontinuance of an action under G.S. 1A-1, N.C. R. Civ. P. 4(e) where there is neither an endorsement of the original summons nor issuance of an alias and pluries summons within ninety days after issuance of the last preceding summons. Russ v. Hedgecock, 161 N.C. App. 334, 588 S.E.2d 69 (2003), cert. denied, 358 N.C. 545, 599 S.E.2d 407 (2004).

Motor vehicle accident victim was not entitled to another sixty days to properly serve the opposing motorist because the case did not involve a default judgment, but a dismissal based upon the motorist's challenge to the service of the summons. Furthermore, the motorist averred by affidavit that the motorist never resided at the address where service was made, did not know the person who signed at the address, or authorize the person to act as an agent or to receive and sign for the document in question for the motorist. Patton v. Vogel, - N.C. App. - , 833 S.E.2d 198 (2019).

Section (e) of this rule controls in determining when an action is discontinued. Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986).

G.S. 1A-1, Rule 6(b) gives the trial courts the discretion to extend the time provided in section (c) of this rule for service of a summons. Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655, rehearing denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

By adopting G.S. 1A-1, Rule 6(b), the General Assembly has given the trial courts authority to breathe new life and effectiveness into a summons retroactively after it has become functus officio by virtue of not being served within the time prescribed. Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655, rehearing denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

G.S. 1A-1, Rule 41(b) and section (e) of this rule are not in conflict, and both can be given effect. Gower v. Aetna Ins. Co., 13 N.C. App. 368, 185 S.E.2d 722, aff'd, 281 N.C. 577, 189 S.E.2d 165 (1972).

Discretion of Court. - It is within the discretion of the trial court to extend time to amend a defective summons; thus, as plaintiff failed to show the trial court abused its discretion, the trial court's refusal to extend time was not error. Integon Gen. Ins. Co. v. Martin, 127 N.C. App. 440, 490 S.E.2d 242 (1997).

Chain of Summonses. - Case law has interpreted this section's reference to the chain of summonses as an implicit requirement that an alias or pluries summons contain a reference in its body to indicate its alleged relation to the original. Integon Gen. Ins. Co. v. Martin, 127 N.C. App. 440, 490 S.E.2d 242 (1997).

Where none of the succeeding summonses on their face referred to the original summons and the only indication that the succeeding summonses related to the original summons was that a copy of the complaint was attached to each of the summonses, the attached complaint did not cure the defective summons. Integon Gen. Ins. Co. v. Martin, 127 N.C. App. 440, 490 S.E.2d 242 (1997).

Because plaintiff failed to serve defendants with process within the time allowed and did not create an unbroken chain of summonses referring back to the original summons as required by N.C. R. Civ. P. 3 and 4, her action was properly dismissed as time-barred under G.S. 1-52. Robertson v. Price, 187 N.C. App. 180, 652 S.E.2d 352 (2007).

"Discontinuance" is a term of art whose only application in the context of service of process is to an action that must cease for failure of the party to comply with section (d) of this rule. Thereafter a new action may be filed, but the date for purposes of the statute of limitations is that of the later filing. Snead v. Foxx, 329 N.C. 669, 406 S.E.2d 829 (1991).

Discontinuance Under Section (e) Not Analogous to Dismissal Under G.S. 1A-1, Rule 41(b). - A discontinuance under section (e) of this rule is not analogous to a dismissal under G.S. 1A-1, Rule 41(b). Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, cert. denied, 301 N.C. 400, 273 S.E.2d 445 (1980).

Subsequent Action Not Barred by Discontinuance Under Section (e). - The fact that an action was discontinued under section (e) of this rule for failure to serve defendant with summons within the time allowed after plaintiff had taken a voluntary dismissal under G.S. 1A-1, Rule 41 did not bar plaintiff from bringing another action for the same cause. Central Sys. v. General Heating & Air Conditioning Co., 48 N.C. App. 198, 268 S.E.2d 822, cert. denied, 301 N.C. 400, 273 S.E.2d 445 (1980).

The commencement of service by publication pursuant to subsection (j)(1) of this rule is not sufficient to satisfy the requirements of section (e) of this rule. Brown v. Overby, 61 N.C. App. 329, 300 S.E.2d 565 (1983).

A discontinuance breaks the chain of summonses, and a summons endorsed more than 90 days after the issuance of the original summons does not relate back to the original date of filing of the complaint. In re Searle, 74 N.C. App. 61, 327 S.E.2d 315 (1985).

Where alias summons was issued more than 90 days after the date the original summons was issued, it did not comply with subsection (d)(2) of this rule, and thus the original summons could not serve as the basis for the issuance of an alias or pluries summons necessary to maintain an unbroken continuation of the action. Thus, under section (e) of this rule, the action would be deemed to have commenced against defendant on the date of issuance of the alias summons. Huggins v. Hallmark Enters., Inc., 84 N.C. App. 15, 351 S.E.2d 779 (1987).

Relation Back After Ninety Days. - A summons issued more than 90 days after the issuance or endorsement of the previous summons does not relate back to the date of the prior summons, and, rather, issuance of the new summons commences an entirely new action. Reese v. Barbee, 129 N.C. App. 823, 501 S.E.2d 698 (1998), aff'd, 350 N.C. 60, 510 S.E.2d 374 (1999).

In a wrongful death case by the personal representative of the decedent, the case was properly dismissed because the representative failed to obtain a proper continuance of the time within which to serve the defendant an alias or pluries summon under G.S. 1A-1, N.C. R. Civ. P. 4(e), meaning that any alias summons would not relate back to the earlier summons and would represent the filing of a new complaint; any new complaint would be untimely under the two year statute of limitations for wrongful death under G.S. 1-53(4) and, therefore, dismissal of the complaint for failure to state a claim was proper. Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 449, 602 S.E.2d 717 (2004).

Discontinuance on Failure to Secure Extension of Time for Service. - Where plaintiff, presented with the return of her summons unserved, failed to continue her action by securing an endorsement upon the original summons for an extension of time within which to complete service of process pursuant to subsection (d)(1) of this rule, and did not sue out an alias or pluries summons returnable in the same manner as the original process pursuant to subsection (d)(2), the plaintiff's action was consequently discontinued 90 days after the date the original summons was issued. Snead v. Foxx, 329 N.C. 669, 406 S.E.2d 829 (1991), holding that plaintiff's action was barred by the statute of limitations.

Dismissal of a passenger's claim against an estate based on a decedent's ownership of an auto involved in an accident was proper because the claim against the driver was a claim against an agent, and, since the driver was named as a party, proper service was required; since the summons as to the driver was allowed to lapse and the statute of limitations had since run, the driver had no liability to impute to the estate. Therefore, neither the driver nor the estate could have been determined judicially to have been negligent, and the passenger's cause of action against the estate failed. Atkinson v. Lesmeister, 186 N.C. App. 442, 651 S.E.2d 294 (2007).

Although a mother accepted service 285 days after a summons to terminate her parental rights was issued, under G.S. 1A-1, N.C. R. Civ. P. 4(c), service of a summons had to have been made within 60 days after the date of the issuance of summons. Accordingly, any subject matter jurisdiction the trial court had pursuant to the issuance of a summons was discontinued and expired before the mother's parental rights were terminated. In re N.E.L., 197 N.C. App. 395, 676 S.E.2d 907 (2009).

Filing of a motion for change of venue or dismissal of the action did not revive an action discontinued by operation of law. Robertson v. Smith, 45 N.C. App. 535, 263 S.E.2d 36, cert. denied, 300 N.C. 376, 267 S.E.2d 677 (1980).

This rule mandates that something be done in the clerk's office to revive a discontinued action, namely, obtaining an alias or pluries summons or an endorsement to the original summons. Byrd v. Trustees of Watts Hosp., 29 N.C. App. 564, 225 S.E.2d 329 (1976); Brown v. Overby, 61 N.C. App. 329, 300 S.E.2d 565 (1983).

Prejudgment Interest Properly Calculated After Discontinuance. - Prejudgment interest was properly calculated under G.S. 24-5 on an operator's judgment for damages arising out of a motor vehicle accident as: (1) due to a lapse in the alias or pluries summons, the operator's action was discontinued under G.S. 1A-1, N.C. R. Civ. P. 4; (2) the trial court lacked discretion in determining the commencement date of the action; (3) the action commenced on 9 June 2006, when the summons was reissued; and (4) the prejudgment interest was based on the period from 9 June 2006 to the date the judgment was entered. Bryson v. Cort, 193 N.C. App. 532, 668 S.E.2d 84 (2008).

Service of Dormant Summons. - Where defendant was served with a dormant summons within the 90-day limit, rather than notice of a discontinued action, the trial court had the authority pursuant to the language of subsection (b) to extend the time for service of process under subsection (c), "to permit the act to be done where the failure to do the act was the result of excusable neglect." Hollowell v. Carlisle, 115 N.C. App. 364, 444 S.E.2d 681 (1994).

Trial court did not err in granting an extension of time to serve a dormant summons even though a second alias or pluries summons was obtained 91-one days after the previous alias or pluries summons where the medical providers had been served with the original summonses 81 and 83 days after issuance of the summonses, thus within the 90-day limit prescribed by G.S. 1A-1, N.C. R. Civ. P. 4(d), under the Lemons analysis, the trial court had the authority under G.S. 1A-1, N.C. R. Civ. P. 6(b), to extend the time provided in Rule 4(c) to serve the summonses upon a finding of excusable neglect, and the trial court had found excusable neglect. Valentine v. Solosko, - N.C. App. - , 842 S.E.2d 621 (2020).

Use of Endorsement or Alias or Pluries Summons. - The provisions in section (d) of this rule for an endorsement on the original summons or issuance of an alias or pluries summons apply only when the original summons was not served, and their purpose is to keep the action alive until service can be made. They are not applicable where the original summons was not issued for service on a defendant, but on a person not a party to the action. Roshelli v. Sperry, 57 N.C. App. 305, 291 S.E.2d 355 (1982).

The provisions relating to issuance of alias or pluries summonses did not apply where both individual defendants were served personally with the original summons; the provisions under subsection (d) of this rule for an endorsement on the original summons or issuance of an alias or pluries summons apply only when the original summons was not served, and their purpose is to keep the action alive until service can be made. Thomas v. Washington, 136 N.C. App. 750, 525 S.E.2d 839 (2000).

Issuance of New Summons. - The defendant was not entitled to dismissal for lack of jurisdiction where the original summons was not served within 30 days (now 60 days) and the plaintiff did not seek an endorsement nor an alias or pluries summons within 90 days but, instead, elected to issue a new summons. Chateau Merisier, Inc. v. GEKA, 142 N.C. App. 684, 544 S.E.2d 815 (2001), decided prior to 2001 amendment to subsection (c).

While the original summons was not yet dormant, because the second summons did not conform with the requirements of N.C. R. Civ. P. 4(d), the original action was discontinued, and the trial court's subject matter jurisdiction was reinvoked. Because the parents were properly served with newly issued summons, commencing new actions and reinvoking the trial court's subject matter jurisdiction as of their respective dates of issuance, the contention that the court lacked subject matter jurisdiction over the parties in the termination of parental rights hearing due to ineffective service was without merit. In re D.B., 186 N.C. App. 556, 652 S.E.2d 56 (2007), aff'd, 362 N.C. 345, 661 S.E.2d 734 (2008).

Trial court erred in ruling that alias summons issued more than 90 days after original summons could relate back to the date of issue of the original summons where there had been neither endorsement by the clerk nor issuance of alias summons within the time specified by section (d) of this rule, with the result that the original action was discontinued as to the defendant. Thereafter an alias summons could be issued, but under section (e) of this rule the action would be deemed to have commenced on the date of such issuance. Lackey v. Cook, 40 N.C. App. 522, 253 S.E.2d 335, cert. denied, 297 N.C. 610, 257 S.E.2d 218 (1979).

Failure to Deliver Summons to Defendant in Bad Faith. - Where plaintiff violated section (a) by failing to deliver summons to proper person for service, and where this was done in bad faith and with intent to delay and gain unfair advantage over defendant, trial court properly dismissed plaintiff's action pursuant to Rule 41(b) based upon plaintiff's violation of Rule 4(a) for purposes of delay and in order to gain an unfair advantage over the defendant. Smith v. Quinn, 324 N.C. 316, 378 S.E.2d 28 (1989).

Duly Issued Summons as Basis for Alias or Pluries Summons. - A duly issued summons not served or delivered to the sheriff for service within 30 days (now 60 days) of its issuance may nevertheless serve as the basis for an alias or pluries summons so as to toll the statute of limitations. Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986), decided prior to 2001 amendment to subsection (c).

The case of Deaton v. Thomas, 262 N.C. 565, 138 S.E.2d 201 (1964), which held that a summons issued by the clerk but never delivered to the sheriff to whom it was directed for service may not serve as the basis for the issuance of an alias process or the extension of time for service, was decided under the old rules of civil procedure and relied, in part, on earlier decisions which held that a summons was not issued until it was delivered to the sheriff for service. Those cases are no longer controlling on the question of when a summons is issued. Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986).

Tolling of Statute Stops Where Plaintiff Fails to Keep Action Alive. - While the statute of limitations is tolled when suit is properly instituted, and it stays tolled as long as the action is alive, the tolling stops if the suit is discontinued by operation of law because of the plaintiff 's failure to keep the action alive in an authorized manner after the original summons has lost its efficacy by not being served within the time allowed. Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557 (1986).

Plaintiff's personal injury suit was properly dismissed where his own failure to comply with G.S. 1A-1-4(d)(1) by timely swearing out an alias and pluries summons resulted, under Rule 4(e), in the suit being deemed filed against defendant after the statute of limitations had run. Kimball v. Vernik, 208 N.C. App. 462, 703 S.E.2d 178 (2010).

Time to Answer Not Extended. - Plaintiffs' motions for entry of default and default judgment were made after defendant's time to answer had expired, as although summons and complaint were served upon defendant by mail, G.S. 1A-1, Rule 6(e) did not apply to extend his time to answer to 33 days, because the 30 days (now 60 days) defendant had under G.S. 1A-1, Rule 12 to answer the complaint began running when defendant was served with the summons and complaint, not when plaintiff mailed it. Williams v. Moore, 95 N.C. App. 601, 383 S.E.2d 416 (1989), decided prior to 2001 amendment to subsection (c).

Summons Need Not Be Delivered to Sheriff Within 30 Days (now 60 days) to Be Kept Alive. - In light of the clear language of section (e) of this rule on the discontinuance of a summons, there is no justification for construing the rule to require delivery of the summons to the sheriff within 30 days (now 60 days) of its issuance to keep the summons alive. Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986), decided prior to 2001 amendment to subsection (c).

The case of Adams v. Brooks, 73 N.C. App. 624, 327 S.E.2d 19, cert. denied, 313 N.C. 596, 332 S.E.2d 177 (1985), holding that plaintiff's summons could not be used as a basis for an extension of time for service since the summons was not delivered to the sheriff for service on defendant within 30 days (now 60 days) of its issuance, is overruled. Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986), decided prior to 2001 amendment to subsection (c).

Unserved Dormant Summons Not Basis of Jurisdiction. - Where summons was returned unserved by sheriff's department on October 17, 1982, within 30 days (now 60 days) of its issuance, and plaintiff served the original summons upon the Secretary of State's office on November 3, 1982, without having revived it under section (d) of this rule, this dormant summons could not and did not subject defendant to the jurisdiction of the court. Huggins v. Hallmark Enters., Inc., 84 N.C. App. 15, 351 S.E.2d 779 (1987), decided prior to 2001 amendment to subsection (c).

Allowance of Voluntary Dismissal Held Nugatory. - Where an action was discontinued by operation of law under section (e) of this rule, the statute of limitations having thereafter immediately run its remaining course, the judge's subsequent order of voluntary dismissal allowing plaintiff another year within which to refile the action was nugatory. Long v. Fink, 80 N.C. App. 482, 342 S.E.2d 557 (1986).

A voluntary dismissal of negligence action without prejudice did not toll the statute of limitations in a case in which the plaintiff, seeing the statute of limitations about to run, received an order extending the time for filing a complaint but failed to serve defendant with civil summons and the order. The defective service of process discontinued plaintiff's original action, and the trial court properly treated the voluntary dismissal as if it had never been filed and the statute of limitations as if it had not been tolled. Plaintiff's second complaint, therefore, constituted a new action which plaintiff failed to file within the three years required by the statute of limitations. Latham v. Cherry, 111 N.C. App. 871, 433 S.E.2d 478 (1993), cert. denied, 335 N.C. 556, 441 S.E.2d 116 (1994).

Action Is Abated When No Summons Is Issued. - Preliminary injunction against defendants was vacated in plaintiff's civil action because no summons was issued within five days after the complaint was filed as required by G.S. 1A-1, N.C. R. Civ. P. 4(a); the action had abated and was deemed never to have commenced, and the trial court lacked subject matter jurisdiction and authority to issue the preliminary injunction. Conner Bros. Mach. Co. v. Rogers, 177 N.C. App. 560, 629 S.E.2d 344 (2006).

Removal to Federal Court Provided Opportunity to Correct Deficiencies in Service. - Although plaintiff's attempt to effect service on defendants, a county, county officials, and a prison health services corporation, by leaving copies of a complaint and summonses on the desks of administrative assistants who worked for the county did not comply with G.S. 1A-1, N.C. R. Civ. P. 4(j)(1)(b), (5)(b), (5)(c), (6)(a), and (6)(b), upon removal, 28 U.S.C.S. § 1448 provided plaintiff an opportunity to correct any deficiencies in service prior to removal because at the time of removal, plaintiff's action was not subject to dismissal insofar as plaintiff still had an opportunity to revive the summonses by seeking a reissuance prior to the expiration of the 90-day period set forth in G.S. 1A-1, N.C. R. Civ. P. 4(d). Patterson v. Brown, - F. Supp. 2d - (W.D.N.C. Jan. 23, 2008).

VIII. DECISIONS UNDER PRIOR LAW.

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Editor's Note. - The cases cited below were decided under former G.S. 1-14, 1-65, 1-88, 1-88.1, 1-89, 1-94, 1-95, 1-96, and 1-105.

Requirements of Due Process. - Due process of law requires that a defendant be properly notified of the proceeding against him and have an opportunity to be present and to be heard. B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570 (1966).

Purpose of Service of Summons. - The purpose of service of summons is to give notice to the party against whom the proceedings or action is commenced, and any notification which reasonably accomplishes that purpose answers the claims of law and justice. Morton v. Blue Ridge Ins. Co., 250 N.C. 722, 110 S.E.2d 330 (1959), citing Jester v. Baltimore Steam Packet Co., 131 N.C. 54, 42 S.E. 447 (1902).

Service of summons, unless waived, is a jurisdictional requirement. Kleinfeldt v. Shoney's of Charlotte, Inc., 257 N.C. 791, 127 S.E.2d 573 (1962).

Service Not Waived by Appearance Under Order for Pretrial Examination. - The appearance of a party under order of court for the purpose of a pretrial examination does not amount to a waiver of service of summons, since the appearance is not voluntary. B-W Acceptance Corp. v. Spencer, 268 N.C. 1, 149 S.E.2d 570 (1966).

As to service by rural policeman for sheriff, see Griffin v. Barnes, 242 N.C. 306, 87 S.E.2d 560 (1955).

Where process issued to the sheriff of one county was returned without any notation thereon, but with an accompanying letter stating that the defendant named was in another county, the act of the clerk in marking through the name of the first county and writing above it the name of the second county, so that the process was directed to the sheriff of the second county, amounted to the issuance of new process and instituted a new action as of the date of the later issuance, and service by the sheriff of the second county met all the requirements of the law. Morton v. Blue Ridge Ins. Co., 250 N.C. 722, 110 S.E.2d 330 (1959).

Effect of Substituting Counties in Original Summons. - Substituting "Mecklenburg" for "Cleveland" County in the original summons and sending such summons to the sheriff of Mecklenburg County worked a discontinuance of the action commenced by issuance of summons to Cleveland County. Morton v. Blue Ridge Ins. Co., 250 N.C. 722, 110 S.E.2d 330 (1959).

Signature of Sheriff. - Where process issued to the sheriff of one county was returned and the clerk struck through the name of the county and inserted the name of a second county, so that the process was directed to the sheriff of the second county, the fact that the sheriff of the second county signed it at the place for the signature of the sheriff of the first county was immaterial, it appearing from the affidavit of the clerk that the summons was served by the sheriff of the second county, and further, the court would take judicial notice of the person who was the sheriff of the county. Morton v. Blue Ridge Ins. Co., 250 N.C. 722, 110 S.E.2d 330 (1959).

Summons Signed by Deputy. - Where a summons, otherwise complete and regular, was signed by the deputy clerk and thereupon served, the summons was not void. The failure of the deputy to sign the name of his principal was a nonjurisdictional irregularity. Beck v. Voncannon, 237 N.C. 707, 75 S.E.2d 895 (1953).

Want of Signature of Clerk. - The want of a signature of the clerk on a summons otherwise complete with seal does not render the summons fatally defective and ineffectual to confer jurisdiction, but merely irregular and subject to amendment; for any defect or omission of a formal character which would be waived or remedied by a general appearance or an answer upon the merits may be treated as a matter which can be remedied by amendment. The imprint of the seal furnishes internal evidence of the official origin of the summons. Beck v. Voncannon, 237 N.C. 707, 75 S.E.2d 895 (1953).

Return as Evidence of Service. - Where it is sought to condemn the lands of an infant, such infant must defend by general guardian where one has been appointed; and where service of process was made upon the general guardian, and it appeared from the officer's return of notice that service had been executed upon the infant, such return was sufficient evidence of its service to take the case to the jury upon the question involved in the issue. Long v. Town of Rockingham, 187 N.C. 199, 121 S.E. 461 (1924).

Service Held Insufficient. - Delivery of a copy of summons and the complaint to defendant husband with instructions to him to deliver it to defendant wife was not valid service on the wife. Harrington v. Rice, 245 N.C. 640, 97 S.E.2d 239 (1957).

Where, apparently through inadvertence, the order for service of process upon a nonresident motorist was directed to the sheriff of one county, but was forwarded by the plaintiff 's attorneys to the sheriff of another county and by him served upon the Commissioner of Motor Vehicles, service was insufficient, notwithstanding that notice of service of process upon the Commissioner and a copy thereof did reach the defendant by registered mail. Byrd v. Pawlick, 362 F.2d 390 (4th Cir. 1966).

A summons was held patently defective under former G.S. 1-105 when it was directed not to the nonresident defendants as required by this rule but to the Commissioner of Motor Vehicles, who was summoned and notified to appear and answer the complaint. Philpott v. Kerns, 285 N.C. 225, 203 S.E.2d 778 (1974).

Motion to Set Aside Default Judgment for Want of Service. - A meritorious defense is not essential or relevant on a motion to set aside a default judgment for want of jurisdiction by reason of want of service of summons. Kleinfeldt v. Shoney's of Charlotte, Inc., 257 N.C. 791, 127 S.E.2d 573 (1962).

Summons a Nullity If Not Served Within Prescribed Time. - The service of summons after the date fixed for its return, there being no endorsement by the clerk extending the time for service, is a nullity. Webb v. Seaboard Air Line R.R., 268 N.C. 552, 151 S.E.2d 19 (1966).

Purpose of Keeping Up Chain of Summonses. - The real purpose of the provisions of law with respect to keeping up the chain of summonses is to maintain the original date of the commencement of the action where the suit may be affected by the running of a statute of limitations, the pendency of another action or the time limit of an enabling act. Morton v. Blue Ridge Ins. Co., 250 N.C. 722, 110 S.E.2d 330 (1959).

The true office of an alias summons is to continue the action referable to its original date of institution, when the first summons issued has not been served. Rogerson v. Leggett, 145 N.C. 7, 58 S.E. 596 (1907); Powell v. Dail, 172 N.C. 261, 90 S.E. 194 (1916); McGuire v. Montvale Lumber Co., 190 N.C. 806, 131 S.E. 274 (1925). See also, Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215 (1943).

An alias summons issues only when the original summons has not been served upon a party defendant named therein. Cherry v. Woolard, 244 N.C. 603, 94 S.E.2d 562 (1956).

Former G.S. 1-95 related solely to the maintenance of chain of process against an original defendant not properly served, and had no application to the service of process upon an additional party after service had been had on the original defendant. Cherry v. Woolard, 244 N.C. 603, 94 S.E.2d 562 (1956).

Alias summons must be sued out within ninety days next after the date of the original summons. Mintz v. Frink, 217 N.C. 101, 6 S.E.2d 804 (1940).

An alias or pluries summons must be served within ninety days after the date of issue of the next proceeding summons in the chain of summonses, if the plaintiff wishes to avoid a discontinuance. Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215 (1943).

To "sue out" means "to obtain by application; to petition for and take out." McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586 (1950).

Suing Out Alias or Pluries Summons to Prevent Discontinuance. - The failure of service of the original summons in an action must be followed by an alias or pluries writ or a summons successively and properly issued in order to preserve a continuous single action referable to the date of its issue, for otherwise it is a discontinuance as to the defendant. Hatch v. Alamance R.R., 183 N.C. 617, 112 S.E. 529 (1922).

In order to bring a defendant into court and hold him bound by its decree in the absence of waiver or voluntary appearance, a summons must be issued by the clerk and timely served upon him by the officer; if not timely served, the summons must be returned, with proper notation, and alias or pluries summons issued and served, or the original summons will lose its vitality and become functus officio and void. Green v. Chrismon, 223 N.C. 724, 28 S.E.2d 215 (1943).

In a civil action or special proceeding where a defendant has not been served with the original summons, the proper issuance of alias and pluries summons keeps the cause of action alive, and prevents its discontinuance. Sizemore v. Maroney, 263 N.C. 14, 138 S.E.2d 803 (1964).

The duty is placed upon plaintiff to sue out the alias or pluries summons, if preceding writs have proved ineffectual, in order to avoid a discontinuance of the action. Williams v. Bray, 273 N.C. 198, 159 S.E.2d 556 (1968).

The duty is imposed upon the plaintiff to sue out an alias summons if the original writ failed of its purpose or proved ineffectual, and likewise to sue out a pluries summons when the preceding writs have proved ineffectual, or there will be a discontinuance of the action. McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586 (1950).

Where plaintiff, who has commenced his action prior to the bar of the statute of limitations, fails to obtain valid service upon defendant, he is required to sue out alias or pluries summons if he desires to prevent a discontinuance. Hodges v. Home Ins. Co., 233 N.C. 289, 63 S.E.2d 819 (1951).

A discontinuance occurs only when the summons has not been served. Rogerson v. Leggett, 145 N.C. 7, 58 S.E. 596 (1907); Gomer v. Clayton, 214 N.C. 309, 199 S.E. 77 (1938), modified on rehearing, 215 N.C. 82, 1 S.E.2d 133 (1939).

Break in Chain of Summonses Works a Discontinuance. - Where in a civil action alias or pluries summonses are issued in the event of nonservice of the original, a break in the chain of summonses works a discontinuance. Neely v. Minus, 196 N.C. 345, 145 S.E. 771 (1928).

Effect of Issuance of Alias and Pluries Summonses. - If the alias or pluries summons contains sufficient information in the body thereof to show its relation to the original summons, the legal service of such writ will be effective from the date of the original process. McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586 (1950).

Where the original process was kept alive by the proper issuance of alias and pluries summonses, a second action instituted subsequent to the issuance of the original process in the first would not be dismissed, notwithstanding the fact that process in the subsequent action was actually served prior to the service of pluries summons in the first. McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586 (1950).

Plaintiff may apply orally or in writing to the clerk of the superior court for an alias or pluries summons, and upon such application it is the duty of the clerk of the superior court to issue the writ. No order of court is necessary to authorize the clerk to issue an alias or pluries summons. McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586 (1950); Williams v. Bray, 273 N.C. 198, 159 S.E.2d 556 (1968).

An ordinary summons cannot be effective as an alias or pluries summons by mere endorsement of the words "alias" or "pluries" thereon. McIntyre v. Austin, 232 N.C. 189, 59 S.E.2d 586 (1950).

Sufficiency of Alias or Pluries Summons. - Where there is nothing upon a paper writing to indicate that it is an alias or pluries summons or that it relates to any original process, such paper writing, even though sufficient to constitute an original summons, cannot constitute an alias or pluries summons. Webb v. Seaboard Air Line R.R., 268 N.C. 552, 151 S.E.2d 19 (1966).

Return Showing Late Service as Sufficient Evidence of Nonservice. - Where the sheriff served summons more than ten days after its issuance, his return was sufficient evidence of nonservice to enable plaintiff to sue out an alias summons. Atwood v. Atwood, 233 N.C. 208, 63 S.E.2d 103 (1951).

Opinions of Attorney General

Service of Process upon Defendant in Divorce Action by Leaving Copies with Defendant's Mother at Defendant's Address Is Sufficient Service and Is Sufficient for Nonjury Trial. - See opinion of Attorney General to the Honorable John S. Gardner, District Court Judge, Sixteenth Judicial District, 41 N.C.A.G. 473 (1971).

Service of process pursuant to G.S. 1-105 and G.S. 1-105.1 upon the Commissioner of Motor Vehicles may be made by leaving a copy thereof with a fee of three dollars ($3.00) in the hands of the Commissioner of Motor Vehicles, or in his office. Service by Sheriff or Marshall is not required. See opinion of Attorney General to Mr. J.M. Penny, Deputy Commissioner of Motor Vehicles, 55 N.C.A.G. 26 (1985).

Service upon the Commissioner of Motor Vehicles, in a manner consistent with this rule, meets the requirement of G.S. 1-105. See opinion of Attorney General to Mr. J.M. Penny, Deputy Commissioner of Motor Vehicles, 55 N.C.A.G. 26 (1985).

Summary Ejectment Proceedings. - Because G.S. 7A-217(4) states that the procedure found in G.S. 42-29 can be used in summary ejectment cases only, and because summary ejectment is in the nature of an in rem proceeding, an in personam money damages claim cannot be heard and a money judgment cannot be entered in an action where service of process is effected through the alternative method under G.S. 42-29. The requirements for actual service of process found elsewhere in G.S. 7A-213 and in this rule would still apply to the claim for rents and other money damages. See opinion of Attorney General to Hon. Thomas N. Hix, Chief District Court Judge, 29th Judicial Circuit, 60 N.C.A.G. 95 (1992).

Qualification for Payroll Deductions by Employee Association. - In order to qualify for the privilege of payroll deductions an employee association must meet the following criteria: (1) the association must be domiciled in North Carolina, i.e., it must have a registered agent for service of process in the state and maintain an office in the state with a resident officer, director, managing agent or member of the governing body authorized to accept payment of the payroll deductions; (2) the association must have at least 2000 members; (3) the majority of the association's members must be employees of the state or public schools; and (4) an employee must authorize the deduction in writing. See opinion of Attorney General to Susan H. Ehringhaus, Vice Chancellor and General Counsel, University of North Carolina, 1999 N.C. AG LEXIS 34 (10/19/99).

I. IN GENERAL.

The 30-day provision in G.S. 1A-1, Rule 41(d) should not be read in conjunction with subsection (b) of this rule. Sanford v. Starlite Disco, Inc., 66 N.C. App. 470, 311 S.E.2d 67 (1984).

Construction With Other Provisions. - The trial court had no authority under this rule to extend the time plaintiff had to file petition for review of annexation ordinance, because the thirty day time limitation is not a time limitation contained in the Rules of Civil Procedure, but a mandate set by the legislature in G.S. 160A-38. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997).

Weekend Excluded. - Trial court filed and entered the termination order on July 23, 2015, petitioner served respondent a copy of the order on July 28, 2015, and thus respondent was served a copy of the termination order within the three-day period, since the intervening Saturday and Sunday was excluded from the three-day period; the last day on which respondent could have filed a timely notice of appeal was August 24, 2015, and because respondent did not file a notice of appeal until August 25, 2015, the notice of appeal was untimely and the appeal was treated as a petition for writ of certiorari. In re S.Z.H., 247 N.C. App. 254, 785 S.E.2d 341 (2016).

This rule did not control in case where the language of a local ordinance was clear and unambiguous in its requirement that a minimum ten-day "notice of a public hearing" be given and further stated how that ten days should be calculated; furthermore, no authority exists holding that this rule applies to ordinances of local governments. Richardson v. Union County Bd. of Adjustment, 136 N.C. App. 134, 523 S.E.2d 432 (1999).

A paper writing is deemed to be filed when it is delivered for that purpose to the proper officer and received by him. Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 833 (1981).

Responsibility to Pay Fee. - Failure to pay the filing fees would not be excused because counsel relied upon the statement of an anonymous Assistant Clerk of Court that no fee was required, and when the notice of appeal was filed with the county clerk's office, no fee was assessed. Riverview Mobile Home Park v. Bradshaw, 119 N.C. App. 585, 459 S.E.2d 283 (1995).

Adequate Notice of Hearing. - Trial court did not abuse its discretion in hearing the motions filed by the wife in a breach of separation agreement proceeding because the husband's counsel had adequate notice under G.S. 1A-1, N.C. R. Civ. P. 6(d) of the hearing for the motions and failed to demonstrate excusable neglect for failure to appear for the hearing. Carpenter v. Carpenter, 189 N.C. App. 755, 659 S.E.2d 762 (2008).

Applied in Spartan Leasing, Inc. v. Brown, 14 N.C. App. 383, 188 S.E.2d 574 (1972); Atkinson v. Tarheel Homes & Realty Co., 14 N.C. App. 638, 188 S.E.2d 703 (1972); Crotts v. Camel Pawn Shop, Inc., 16 N.C. App. 392, 192 S.E.2d 55 (1972); Sims v. Oakwood Trailer Sales Corp., 18 N.C. App. 726, 198 S.E.2d 73 (1973); Howell v. Howell, 22 N.C. App. 634, 207 S.E.2d 312 (1974); Fitch v. Fitch, 26 N.C. App. 570, 216 S.E.2d 734 (1975); Fagan v. Hazzard, 29 N.C. App. 618, 225 S.E.2d 640 (1976); In re Underwood, 38 N.C. App. 344, 247 S.E.2d 778 (1978); Harris v. Latta, 298 N.C. 555, 259 S.E.2d 239 (1979); Kavanau Real Estate Trust v. Debnam, 41 N.C. App. 256, 254 S.E.2d 638 (1979); Carolina Narrow Fabric Co. v. Alexandria Spinning Mills, Inc., 42 N.C. App. 722, 257 S.E.2d 654 (1979); Bailey v. Gooding, 45 N.C. App. 335, 263 S.E.2d 634 (1980); W & H Graphics, Inc. v. Hamby, 48 N.C. App. 82, 268 S.E.2d 567 (1980); Adair v. Adair, 62 N.C. App. 493, 303 S.E.2d 190 (1983); Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643 (1988); Gummels v. North Carolina Dep't of Human Resources, 97 N.C. App. 245, 388 S.E.2d 223 (1990); Johnson v. Hutchens, 103 N.C. App. 384, 405 S.E.2d 597 (1991); Hackett v. Bonta, 113 N.C. App. 89, 437 S.E.2d 687 (1993); Evans v. Full Circle Prods., Inc., 114 N.C. App. 777, 443 S.E.2d 108 (1994); Hedrick v. Rains, 344 N.C. 729, 477 S.E.2d 171 (1996); Lexington State Bank v. Miller, 137 N.C. App. 748, 529 S.E.2d 454 (2000); Beck v. City of Durham, 154 N.C. App. 221, 573 S.E.2d 183 (2002); FNB Southeast v. Lane, 160 N.C. App. 535, 586 S.E.2d 530 (2003), cert. denied, 358 N.C. 153, 592 S.E.2d 558 (2004); Broughton v. McClatchy Newspapers, Inc., 161 N.C. App. 20, 588 S.E.2d 20 (2003); In re N.E.L., 197 N.C. App. 395, 676 S.E.2d 907 (2009); E. Brooks Wilkins Family Med., P.A. v. WakeMed, 244 N.C. App. 567, 784 S.E.2d 178 (2016), review denied, 797 S.E.2d 18, 2017 N.C. LEXIS 160 (2017).

Cited in Rupert v. Rupert, 15 N.C. App. 730, 190 S.E.2d 693 (1972); Barnes v. Barnes, 30 N.C. App. 196, 226 S.E.2d 549 (1976); In re Jacobs, 38 N.C. App. 573, 248 S.E.2d 448 (1978); Parrish v. Cole, 38 N.C. App. 691, 248 S.E.2d 878 (1978); Harris v. Latta, 40 N.C. App. 421, 253 S.E.2d 28 (1979); City of Durham v. Keen, 40 N.C. App. 652, 253 S.E.2d 585 (1979); Anderson v. Gooding, 300 N.C. 170, 265 S.E.2d 201 (1980); State v. Harren, 302 N.C. 142, 273 S.E.2d 694 (1981); Ingle v. Ingle, 53 N.C. App. 227, 280 S.E.2d 460 (1981); Byrd v. Mortenson, 308 N.C. 536, 302 S.E.2d 809 (1983); Raintree Homeowners Ass'n v. Raintree Corp., 62 N.C. App. 668, 303 S.E.2d 579 (1983); G & M Sales of E.N.C., Inc. v. Brown, 64 N.C. App. 592, 307 S.E.2d 593 (1983); Elmore v. Elmore, 67 N.C. App. 661, 313 S.E.2d 904 (1984); Miller v. Ruth's of N.C. Inc., 69 N.C. App. 672, 318 S.E.2d 2 (1984); Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772 (1987); Pearson v. Nationwide Mut. Ins. Co., 325 N.C. 246, 382 S.E.2d 745 (1989); Adams v. Moore, 96 N.C. App. 359, 385 S.E.2d 799 (1989); Huntington Manor v. North Carolina Dep't of Human Resources, 99 N.C. App. 52, 393 S.E.2d 104 (1990); Chaplain v. Chaplain, 101 N.C. App. 557, 400 S.E.2d 121 (1991); Crowell Constructors, Inc. v. State ex rel. Cobey, 114 N.C. App. 75, 440 S.E.2d 848 (1994); Hollowell v. Carlisle, 115 N.C. App. 364, 444 S.E.2d 681 (1994); Locklear v. Scotland Mem. Hosp., 119 N.C. App. 245, 457 S.E.2d 764 (1995); Precision Fabrics Group, Inc. v. Transformer Sales & Serv., Inc., 120 N.C. App. 866, 463 S.E.2d 787 (1995); Sykes v. Keiltex Indus., Inc., 123 N.C. App. 482, 473 S.E.2d 341 (1996); Hockaday v. Lee, 124 N.C. App. 425, 477 S.E.2d 82 (1996), cert. denied, 346 N.C. 178, 486 S.E.2d 204 (1997); Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914 (2002); In re Foreclosure of Real Prop. Under Deed of Trust from Brown, 156 N.C. App. 477, 577 S.E.2d 398 (2003); Old Salem Foreign Car Serv., Inc. v. Webb, 159 N.C. App. 93, 582 S.E.2d 673 (2003); Draughon v. Harnett County Bd. of Educ., 166 N.C. App. 464, 602 S.E.2d 721 (2004); Skinner v. Preferred Credit, 172 N.C. App. 407, 616 S.E.2d 676 (2005); Megremis v. Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006); In re H.T., 180 N.C. App. 611, 637 S.E.2d 923 (2006); Garlock v. Wake County Bd. of Educ., 211 N.C. App. 200, 712 S.E.2d 158 (2011); Green v. Green, 236 N.C. App. 526, 763 S.E.2d 540 (2014); Stinchcomb v. Presbyterian Med. Care Corp., 211 N.C. App. 556, 710 S.E.2d 320 (2011), review denied 717 S.E.2d 376, 2011 N.C. LEXIS 670 (N.C. 2011); Coastal Fed. Credit Union v. Falls, 217 N.C. App. 100, 718 S.E.2d 192 (2011); Magazian v. Creagh, 234 N.C. App. 511, 759 S.E.2d 130 (2014); Gerhauser v. Van Bourgondien, 238 N.C. App. 275, 767 S.E.2d 378 (2014); Don't Do It Empire, LLC v. Tenntex, 246 N.C. App. 46, 782 S.E.2d 903 (2016).

II. ENLARGEMENT OF TIME.

This rule gives the court discretionary authority to enlarge time required for something to be done by the rules or a notice given under the rules or order of court. Cheshire v. Bensen Aircraft Corp., 17 N.C. App. 74, 193 S.E.2d 362 (1972).

G.S. 1A-1, N.C. R. Civ. P. 6(b) grants the trial courts broad authority to extend any time period specified in any of the Rules of Civil Procedure for the doing of any act, after expiration of such specified time, upon a finding of excusable neglect; therefore, pursuant to Rule 6(b) the trial courts may extend the time for service of process under G.S. 1A-1, N.C. R. Civ. P. 4(c). Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 606 S.E.2d 407 (2005).

Trial court had the discretion to allow individuals an extension of time to serve a summons on a corporation because the alias and pluries summons was merely dormant, and not expired, when the individuals effectuated service. Wetchin v. Ocean Side Corp., 167 N.C. App. 756, 606 S.E.2d 407 (2005).

This Rule Could Not Be Read in Conjunction With Rule 41(d) to Extend Time to Pay Dismissal Costs. - Second lawsuit was properly dismissed under G.S. 1A-1, N.C. R. Civ. P. 41(d) because plaintiff did not pay the costs of dismissing her first lawsuit within 30 days, and G.S. 1A-1, N.C. R. Civ. P. 6(b) could not be used to permit the parties to stipulate to an extension of the Rule 41(d) 30 day period for paying costs. Welch v. Lumpkin, 199 N.C. App. 593, 681 S.E.2d 850 (2009).

Section (b) Inapplicable to Amend Entered Judgments. - Section (b) is applicable to enlargement of time for filing pleadings, motions, interrogatories, the taking of depositions, etc. It was not intended to have the effect of giving the court the discretion to amend a final order entered under the mandatory directive of a statute, nor to be applied for the purpose of amending a judgment that has been entered. Cheshire v. Bensen Aircraft Corp., 17 N.C. App. 74, 193 S.E.2d 362 (1972).

A motion to enlarge time for filing a pleading is addressed to the discretion of the trial court. Privette v. Privette, 30 N.C. App. 41, 226 S.E.2d 188 (1976).

What Time Limits May Be Extended. - The statutory language of section (b) of this rule is clear, and provides that the trial court may extend the time for performance of any acts except those expressly mentioned in the proviso to the rules. By setting out these specific exceptions to the trial court's discretionary power to extend the time specified for doing any act, the General Assembly implicitly excluded all other exceptions. Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655, rehearing denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

Magistrate did not have the authority under G.S. 1A-1, Rule 60(b) to extend the time provided in G.S. 7A-228 for party to pay appeal fees. Riverview Mobile Home Park v. Bradshaw, 119 N.C. App. 585, 459 S.E.2d 283 (1995).

Trial court erred in extending the deadline on the consent order pursuant to G.S. 1A-1, N.C. R. Civ. P. 6(b), as the deadline was not a time period specified in the North Carolina Rules of Civil Procedure. Gandhi v. Gandhi, 244 N.C. App. 208, 779 S.E.2d 185 (2015).

Service of Summons. - Section (b) of this rule gives the trial courts the discretion to extend the time provided in G.S. 1A-1, Rule 4(c) for service of a summons. Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655, rehearing denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

By adopting section (b) of this rule, the General Assembly has given the trial courts authority to breathe new life and effectiveness into a summons retroactively after it has become functus officio by virtue of not being served within the time prescribed. Lemons v. Old Hickory Council, 322 N.C. 271, 367 S.E.2d 655, rehearing denied, 322 N.C. 610, 370 S.E.2d 247 (1988).

Trial court did not err in granting an extension of time to serve a dormant summons even though a second alias or pluries summons was obtained 91-one days after the previous alias or pluries summons where the medical providers had been served with the original summonses 81 and 83 days after issuance of the summonses, thus within the 90-day limit prescribed by G.S. 1A-1, N.C. R. Civ. P. 4(d), under the Lemons analysis, the trial court had the authority under G.S. 1A-1, N.C. R. Civ. P. 6(b), to extend the time provided in Rule 4(c) to serve the summonses upon a finding of excusable neglect, and the trial court had found excusable neglect. Valentine v. Solosko, - N.C. App. - , 842 S.E.2d 621 (2020).

Retroactive Extension Not Permitted After Discontinuance of Action. - Trial court erred in allowing plaintiffs' motion to retroactively extend the time period for issuing the alias and pluries summons since the action had been discontinued; trial courts do not have discretion pursuant to G.S. 1A-1, N.C. R. Civ. P. 6(b) to prevent a discontinuance of an action under G.S. 1A-1, N.C. R. Civ. P. 4(e) where there is neither an endorsement of the original summons nor issuance of an alias and pluries summons within ninety days after issuance of the last preceding summons. Russ v. Hedgecock, 161 N.C. App. 334, 588 S.E.2d 69 (2003), cert. denied, 358 N.C. 545, 599 S.E.2d 407 (2004).

Extending Time in Which to File Complaint. - The clerk represents and is the court by virtue of G.S. 1-7 and has the authority to exercise the discretionary powers conferred by this rule for the purpose of extending additional time in which to file a complaint. Williams v. Jennette, 77 N.C. App. 283, 335 S.E.2d 191 (1985).

Doctor who untimely filed an action in a state court against a hospital on statute of limitations grounds under G.S. 1-52 was not entitled to relief from the trial court's order dismissing the action on the basis of excusable neglect because G.S. 1A-1, N.C. R. Civ. P. 6 was limited to the computation of those time periods prescribed by the North Carolina Rules of Civil Procedure. Glynne v. Wilson Med. Ctr., 236 N.C. App. 42, 762 S.E.2d 645 (2014).

Enlarging Time for Filing Answer. - Section (b) of this rule gives the trial court the discretionary authority to enlarge the time period for filing an answer. Norris v. West, 35 N.C. App. 21, 239 S.E.2d 715 (1978).

Where a party seeks an extension of time to answer after the expiration of the 30-day limit, the judge may permit the answer if he finds that the failure to act was the result of excusable neglect. Byrd v. Mortenson, 60 N.C. App. 85, 298 S.E.2d 170 (1982), aff'd, 308 N.C. 536, 302 S.E.2d 809 (1983).

Failure to File Within Extended Time. - Where plaintiffs filed for an extension of time to file their complaint for medical malpractice and loss of consortium, which the court granted, but plaintiffs did not file their complaint until 19 days later, when plaintiffs failed to file their complaint before the extension of time expired, their action abated, and the three-year statute of limitations had run. The trial court could not extend the time in which to file their complaint under section (b) of this Rule, thus reviving the original action and avoiding the statute of limitations. Osborne v. Walton, 110 N.C. App. 850, 431 S.E.2d 496 (1993).

Court's Discretion Is Not Unrestrained. - Section (b) gives the trial court wide discretionary authority to enlarge the time within which an act may be done; however, the discretion to be exercised is a judicial discretion, not an unrestrained one. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E.2d 421 (1974).

When Discretion Can Be Exercised. - The discretion given the court to enlarge time can be exercised upon request prior to expiration of the time where the failure to act within the time prescribed was the result of excusable neglect. Cheshire v. Bensen Aircraft Corp., 17 N.C. App. 74, 193 S.E.2d 362 (1972); Johnson v. Hooks, 21 N.C. App. 585, 205 S.E.2d 796, cert. denied, 285 N.C. 660, 207 S.E.2d 754 (1974).

Showing of Excusable Neglect Necessary Where Request Untimely. - If the request under this rule for enlargement of time in which to do an act is made after the expiration of the period of time within which the act should have been done, there must be a showing of excusable neglect. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E.2d 421 (1974).

If the request for an enlargement of the time period for filing an answer is made after the expiration of the time to file, the court may enlarge the time period for filing if the failure to file was the result of excusable neglect. Norris v. West, 35 N.C. App. 21, 239 S.E.2d 715 (1978).

Inmate who sued a sheriff and various medical providers, alleging medical malpractice and negligence, did not show excusable neglect for failing to designate his expert witnesses by the date specified in the trial court's order, and because the trial court properly denied the inmate's motion for an extension of time to designate his expert witnesses and his forecast of evidence could not include a designation of witnesses, the trial court's order granting summary judgment in favor of all defendants was upheld. Summey v. Barker, 357 N.C. 492, 586 S.E.2d 247 (2003).

Securing Extension of Time as General Appearance. - By securing an extension of time in which to answer or otherwise plead, defendant made a general appearance which rendered service of summons upon it unnecessary. Spartan Leasing, Inc. v. Brown, 285 N.C. 689, 208 S.E.2d 649 (1974).

Delayed Signing and Filing of Order Made at Hearing. - Where the decision to tax plaintiff with defendant's costs was made and announced at hearing, the delayed signing and filing of the order taxing plaintiff with costs had no effect on the authority of the trial judge to enter this order. Daniels v. Montgomery Mut. Ins. Co., 320 N.C. 669, 360 S.E.2d 772 (1987).

Motion Did Not Waive Right to Make G.S. 1A-1, Rule 12(b) Defenses. - Defendant's motion for an extension of time in no way waived his right to make any of the G.S. 1A-1, Rule 12(b) defenses allowed by motion. Mosley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E.2d 36, cert. denied, 284 N.C. 121, 199 S.E.2d 659 (1973).

Waiver Under G.S. 1A-1, Rule 12(h) Not Applicable to Motion for Enlargement of Time. - While G.S. 1A-1, Rule 12(h) provides for waiver of the defense of improper venue when not joined in a motion made under that rule, such waiver is not applicable to a motion for enlargement of time made under this rule. Moseley v. Branch Banking & Trust Co., 19 N.C. App. 137, 198 S.E.2d 36, cert. denied, 284 N.C. 121, 199 S.E.2d 659 (1973).

Refusal to Accept Late Affidavits Upheld. - While sections (b) and (d) give the trial court discretion to allow the late filing of affidavits in opposition to a motion for summary judgment, the court does not abuse its discretion when it refuses to accept late affidavits absent a showing of excusable neglect. Rockingham Square Shopping Center, Inc. v. Integon Life Ins. Corp., 52 N.C. App. 633, 279 S.E.2d 918, cert. denied, 304 N.C. 196, 285 S.E.2d 101 (1981).

Motion Held Unnecessary. - Where, upon concluding that defendant's failure to answer was a result of "excusable neglect," the court set aside entry of default and ordered that defendant's answer be filed and remain of record, it was not necessary that defendant file a section (b) motion for enlargement of time to file answer, though that would have been the better practice. Hubbard v. Lumley, 17 N.C. App. 649, 195 S.E.2d 330 (1973).

Time for Making and Ruling on Motion to Amend Judgment. - G.S. 1A-1, Rule 59(e) and section (b) of this rule do not circumscribe the trial court's authority to rule on a timely motion to alter or amend a judgment; they merely require that a party make such a motion within 10 days after judgment or require that a trial court acting on its own motion amend judgment within 10 days after its entry. It is not required that trial court's ruling on a timely motion by a party must also be made within 10 days after entry of the original judgment. Housing, Inc. v. Weaver, 305 N.C. 428, 290 S.E.2d 642 (1982).

A G.S. 1A-1, Rule 12(b) defense contained in an answer is not the same as a 1A-1, Rule 12(b) defense raised in a motion, and affidavits filed in support of a 1A-1, Rule 12(b) defense contained in an answer is not governed by the time constraints found in subsection (d) of this rule. Ryals v. Hall-Lane Moving & Storage Co., 122 N.C. App. 242, 468 S.E.2d 600 (1996).

Quo Warranto. - This rule does not provide authority for a trial court to extend the time for service of the complaint and summons in a private quo warranto action. State ex rel. Barker v. Ellis, 144 N.C. App. 135, 547 S.E.2d 166, cert. denied, 354 N.C. 74, 553 S.E.2d 204 (2001).

Not requested. - Trial court erred in denying the father's motion to set aside an order terminating his parental rights; since the father was not served within the time limit for serving process once a summons was issued and no extension of time was obtained, the trial court did not obtain personal jurisdiction over him in a case where the mother filed a petition to terminate the father's parental rights. In re A.B.D., 173 N.C. App. 77, 617 S.E.2d 707 (2005).

No Abuse of Discretion. - In a case involving a foreign judgment, a debtor's proposed affidavit failed to comply with this rule, and he failed to show the trial court abused its discretion in denying an oral motion to introduce his late-filed affidavit in the absence of his personal appearance. Rossi v. Spoloric, 244 N.C. App. 648, 781 S.E.2d 648 (2016).

III. EFFECT OF EXPIRATION OF SESSION.

.

This rule clearly allows a written order to be signed out of term, especially when such an act merely documents a decision made and announced before the expiration of the term. Feibus & Co. v. Godley Constr. Co., 301 N.C. 294, 271 S.E.2d 385 (1980), rehearing denied, 301 N.C. 727, 274 S.E.2d 228 (1981); Pinckney v. Van Damme, 116 N.C. App. 139, 447 S.E.2d 825 (1994).

This rule clearly allows a superior court judge to sign a written order out of session without the consent of the parties so long as the hearing to which the order relates was held in term. Ward v. Ward, 116 N.C. App. 643, 448 S.E.2d 862 (1994).

Entry of Orders Out of Session. - Judges did not lack subject matter jurisdiction to enter equitable distribution judgment and permanent alimony order where both were entered out of session. Ward v. Ward, 116 N.C. App. 643, 448 S.E.2d 862 (1994).

Trial court's entry of an order out of session was proper because no objection was made by defendant at trial pursuant to G.S. 1A-1, N.C. R. Civ. P. 58. Orange County ex rel. Pattison v. Hamilton, 213 N.C. App. 205, 714 S.E.2d 184 (2011).

Order was not void for having been signed outside a county's geographical limits because such execution was expressly permitted. Wilson v. SunTrust Bank, 257 N.C. App. 237, 809 S.E.2d 286 (2017), cert. denied, 139 S. Ct. 2674, 204 L. Ed. 2d 1069, 2019 U.S. LEXIS 3810 (U.S. 2019).

Documentation of Summary Judgment Order After Term. - Where the trial judge denied defendant's motion for summary judgment during term, under section (c) of this rule he could thereafter simply document his decision by signing the order and mailing it to the clerk of court after the term had expired. Feibus & Co. v. Godley Constr. Co., 44 N.C. App. 133, 260 S.E.2d 665 (1979), rev'd on other grounds, 301 N.C. 294, 271 S.E.2d 385 (1980).

There was both statutory and common law authority for the trial court's entry of its supplemental judgment, because G.S. 7A-47.1 and this rule both authorize the entry of judgment out of session. Buford v. GMC, 339 N.C. 396, 451 S.E.2d 293 (1994).

IV. SERVICE OF MOTIONS AND AFFIDAVITS.

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Section (d) of this rule relates only to the hearing of motions. In re Estate of Tucci, 104 N.C. App. 142, 408 S.E.2d 859 (1991), cert. dismissed, 331 N.C. 748, 417 S.E.2d 236 (1992).

Defendant does not have an absolute right to the notice requirement of this rule. Jenkins v. Jenkins, 27 N.C. App. 205, 218 S.E.2d 518 (1975).

A party entitled to notice of a motion may waive such notice. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971); Jenkins v. Jenkins, 27 N.C. App. 205, 218 S.E.2d 518 (1975); Story v. Story, 27 N.C. App. 349, 219 S.E.2d 245 (1975).

Condominium association waived the right to object to a construction company's summary judgment motion on notice-related grounds because the association did not object to the adequacy of the notice that it had received or request additional time within which to respond to the company's motion, it participated in the hearing, and it addressed the issues raised by the company's motion on the merits. Trillium Ridge Condo. Ass'n v. Trillium Links & Vill., LLC, 236 N.C. App. 478, 764 S.E.2d 203 (2014).

And ordinarily does this by attending the hearing of the motion and participating in it. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971); Story v. Story, 27 N.C. App. 349, 219 S.E.2d 245 (1975).

Where defendant corporation suggested no additional testimony that would have available to it at a later hearing and did not show how it would have benefited from a later hearing, then even if notice of a motion was improperly given, defendant waived the notice requirement by attending the hearing of the motion and participating in it. J.D. Dawson Co. v. Robertson Mktg., Inc., 93 N.C. App. 62, 376 S.E.2d 254 (1989).

Service of Affidavits Supporting Summary Judgment. - The provision of section (d) which requires that supporting affidavits be served with a motion applies to affidavits in support of a G.S. 1A-1, Rule 56 motion for summary judgment. Nationwide Mut. Ins. Co. v. Chantos, 21 N.C. App. 129, 203 S.E.2d 421 (1974), distinguishing Millsaps v. Wilkes Contracting Co., 14 N.C. App. 321, 188 S.E.2d 663, cert. denied, 281 N.C. 623, 190 S.E.2d 466 (1972), in which case affidavits in opposition to motion for summary judgment were at issue.

Subsection (d) of this rule requires that an affidavit in support of a G.S. 1A-1, Rule 56 motion be served with the motion at least 10 days prior to hearing. The trial court may exercise its discretionary powers under section (b) of this rule to order the time within which to file and serve the affidavits enlarged if the request is made prior to making the motion for summary judgment. If the request is made after the motion for summary judgment has been served, there must be a showing of excusable neglect. Gillis v. Whitley's Disct. Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984).

Although affidavits in support of a motion for summary judgment are required by section (d) of this rule and G.S. 1A-1, Rule 56(c) to be filed and served with the motion, G.S. 1A-1, Rule 56(e) grants to the trial judge wide discretion to permit further affidavits to supplement those which have already been served. Rolling Fashion Mart, Inc. v. Mainor, 80 N.C. App. 213, 341 S.E.2d 61 (1986).

Trial court erred by disregarding an affidavit an employee submitted in support of his motion for summary judgment because the affidavit was filed and served on defense counsel five days prior to the hearing, which was in compliance with the rule. Johnson v. Crossroads Ford, Inc., 230 N.C. App. 103, 749 S.E.2d 102 (2013).

Extension of Time for Filing Affidavit to Support a Motion to Dismiss - Defendant store's motion to dismiss stated with sufficient particularity the grounds alleged by citing G.S. 1A-1, Rule 12(b)(4) and 12(b)(5) and specified that plaintiffs, a husband and wife, failed to properly serve it as a corporation and instead served a mailroom employee; fact that the store filed the affidavit of the mailroom employee after its motion was insignificant, because the trial court gave plaintiffs the opportunity to respond and oppose the amended motion. Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 609 S.E.2d 456 (2005).

Extension of Time for Filing Affidavits Supporting Summary Judgment. - Despite the specific language of G.S. 1A-1, Rule 56(c) requiring affidavits to be filed prior to the day of hearing, the trial court may in some instances permit the filing of the affidavits at a later time. If a request for permission to file affidavits at some later time is made before the date of the summary judgment hearing, the trial court may in its discretion order the period for filing affidavits to be enlarged. Battle v. Nash Technical College, 103 N.C. App. 120, 404 S.E.2d 703 (1991).

Filing of Affidavits on Day of Summary Judgment Hearing. - If a request for permission to file affidavits in support of a motion under G.S. 1A-1, Rule 56 is made on the day of the summary judgment hearing, the trial court may permit the act to be done where the failure to act was the result of excusable neglect. Battle v. Nash Technical College, 103 N.C. App. 120, 404 S.E.2d 703 (1991).

Where there was no request for enlargement of time within which to file and serve any affidavits made by the plaintiff prior to the day of the hearing of the motion on summary judgment and there was no finding or a request by the plaintiff for a finding of excusable neglect in failing to serve the affidavits prior to the date of the summary judgment hearing, because the plaintiff failed to proceed in a manner that would permit the trial court to exercise its discretion to permit the filing of plaintiff's proffered affidavit, the plaintiff could not on appeal complain about its exclusion. Battle v. Nash Technical College, 103 N.C. App. 120, 404 S.E.2d 703 (1991).

Notice of Counterclaim. - Counterclaim for specific performance of separation agreement was void where the husband filed his answer and counterclaim to petition for post-separation support and alimony a week before trial, without serving notice to hear the counterclaim. Wells v. Wells, 132 N.C. App. 401, 512 S.E.2d 468 (1999).

Notice of Custody Hearing. - Ordinarily a parent is entitled to at least five days' notice (an intervening Saturday or Sunday excluded) of a hearing involving the custody of a child; but this is not an absolute right, and is subject to the rule relating to waiver of notice and to the rule that a new trial will not be granted for mere technical error which could not have affected the result, but only for error which is prejudicial, amounting to the denial of a substantial right. Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971).

Notice of Hearing on Issue of Incompetency. - Five days' notice would be appropriate for hearing on the issue of incompetency when appointment of a guardian ad litem is proposed, unless the court, for good cause, should prescribe a shorter period. Rutledge v. Rutledge, 10 N.C. App. 427, 179 S.E.2d 163 (1971).

Motion Deemed Untimely. - As defense counsel served defendants' motion to amend their answer on the city and noticed a hearing for three days after the date of the motion under N.C. R. Civ. P. 6(a), the city had only three days notice of the motion to amend as of the actual day of the hearing; therefore, the motion was properly deemed untimely. City of Winston-Salem v. Slate, 185 N.C. App. 33, 647 S.E.2d 643 (2007).

Trial court did not consider incompetent evidence when ruling on a doctor's motion to dismiss under G.S. 1A-1-6(d) as a patient made no request to be heard as to the propriety of taking judicial notice of unverified documents in a prior case, the patient failed to argue on appeal that it was error to take judicial notice of the prior action, and the documents were not "sprung" on the patient as the patient was in possession of and had drafted them. Stocum v. Oakley, 185 N.C. App. 56, 648 S.E.2d 227 (2007), review denied, 362 N.C. 372, 662 S.E.2d 394 (2008).

Trial court did not err when it denied a surety's motion to set aside forfeiture because the surety filed the motion outside the 150 days required under G.S. 15A-544.5(d); a court must assume that deadlines for filing documents with the court are subject to the hours when the court is open for business. State v. Williams, 218 N.C. App. 450, 725 S.E.2d 7 (2012).

Trial Court Did Not Abuse Its Discretion In Denying Defendant's Motion. - Employer's default and default judgment were properly entered because (1) an employee's attachment of verification pages to the employee's complaint at a default judgment hearing was not an amendment that reopened the employer's response time, (2) five days' notice of the default judgment hearing was not required, since the default judgment motion was heard ex parte, and (3) the employer did not show that the employer had appeared in the action before judgment was entered by alleged efforts to contact the employee's counsel. Wiley v. L3 Communs. Vertex Aero., LLC, 251 N.C. App. 354, 795 S.E.2d 580 (2016).

Where motion for alimony did not specify a date for hearing, but was served, by being deposited in the mail, properly addressed to defendant's attorney, at least five days before an already scheduled hearing, plaintiff properly proceeded to apply for alimony. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Constructive Notice of Orders and Motions Made During Session. - Where an oral motion is appropriately made under G.S. 1A-1, Rule 7, the doctrine that a party to an action has constructive notice of all orders and motions made in the cause during the session of court at which the cause is regularly calendared is preserved in G.S. 1A-1, Rules 6 and 7. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979).

Motion that court vacate divorce judgment entered at same session of court was not subject to actual notice requirement of section (d), which requires that written motions be served at least 5 days prior to the date set for hearing. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979).

Trial court did not abuse its discretion in denying plaintiffs' motion, where plaintiffs did not comply with the requirements of section (d) of this rule, but waited to file their motion until the very day that they wished it heard, and allowing it would have been unfair and prejudicial to defendants. Duncan v. Ammons Constr. Co., 87 N.C. App. 597, 361 S.E.2d 906 (1987).

Untimely Served Affidavit Properly Admitted. - Trial court did not err when it allowed and considered the untimely served affidavit of an executrix at a hearing on a party's motion to compel arbitration. Raper v. Oliver House, LLC, 180 N.C. App. 414, 637 S.E.2d 551 (2006).

V. ADDITIONAL TIME AFTER SERVICE BY MAIL.

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Effect of Section (e). - Section (e), in effect, extends the minimum 10 day notice period to 13 days when the notice is by mail. This rule serves to alleviate the disparity between constructive and actual notice when the mailing of notice begins a designated period of time for the performance of some right. Planters Nat'l Bank & Trust Co. v. Rush, 17 N.C. App. 564, 195 S.E.2d 96 (1973).

Section (e) does not apply to appeals from an Employment Security Commission (now Division of Employment Security (DES) of the Department of Commerce) adjudicator, so as to give the appealing party, in addition to the 10-day period prescribed by G.S. 96-15(b)(2), three additional days within which to file an appeal. Smith v. Daniels Int'l, 64 N.C. App. 381, 307 S.E.2d 434 (1983).

Section (e) Held Inapplicable. - Plaintiffs' motions for entry of default and default judgment, which were filed 31 days after service of summons and complaint on defendant, were made after defendant's time to answer had expired, as although summons and complaint were served upon defendant by mail, section (e) of this rule did not apply to extend his time to answer to 33 days, because the 30 days defendant had under G.S. 1A-1, Rule 12 to answer the complaint began running when defendant was served with the summons and complaint, not when plaintiff mailed it. Williams v. Moore, 95 N.C. App. 601, 383 S.E.2d 416 (1989).

No Reversible Error Where Defendants Not Prejudiced by Untimely Notice. - Trial court did not commit reversible error in granting summary judgment in favor of plaintiff although plaintiff failed to give timely notice to appellants of said motion pursuant to section (e) of this rule and G.S. 1A-1, Rule 56(c). Plaintiff conceded that the Notice of the Summary Judgment Hearing was served by mail only nine days prior to the hearing instead of 13 days as required; however, defendants failed to demonstrate any prejudice caused them by the untimely notice. Symons Corp. v. Quality Concrete Constr., Inc., 108 N.C. App. 17, 422 S.E.2d 365 (1992).

VI. DECISIONS UNDER PRIOR LAW.

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Editor's Note. - The cases cited below were decided under former G.S. 1-152.

Inherent Power to Extend Time. - The superior court possesses an inherent discretionary power to amend pleadings or to allow them to be filed at any time, unless prohibited by some statute or unless vested rights are interfered with. Gilchrist v. Kitchen, 86 N.C. 20 (1882); Rich v. Norfolk S. Ry., 244 N.C. 175, 92 S.E.2d 768 (1956).

A judge of the superior court in this State has inherent power in his discretion and in furtherance of justice to extend the time for filing a complaint, and he is also vested with such authority by statute. Deanes v. Clark, 261 N.C. 467, 135 S.E.2d 6 (1964).

The right to amend pleadings in a case and to allow answers or other pleadings to be filed at any time is an inherent and statutory power of the superior courts, which they may exercise at their discretion, unless prohibited by some statutory enactment or unless vested rights are interfered with. State Hwy. Comm'n v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967).

Where amended complaint was filed after expiration of the time allowed in order permitting filing of amendment, the trial court had the discretionary power to enter an order extending the time for the filing of the amendment to the date of the hearing and to overrule defendant's motion to strike on the ground that the amendment was filed after the expiration of the time allowed. Alexander v. Brown, 236 N.C. 212, 72 S.E.2d 522 (1952).

Defendants were not entitled to dismissal as a matter of right for plaintiff's failure to file complaint in due time, since the judge, in his discretion, could enlarge the time for pleading. Early v. Eley, 243 N.C. 695, 91 S.E.2d 919 (1956).

Power to Enlarge Time for Filing Answer. - The judge of the superior court has the discretionary power to enlarge the time in which answer may be filed beyond that limited before the clerk, upon such terms as may be just, by an order to that effect. Aldridge v. Greensboro Fire Ins. Co., 194 N.C. 683, 140 S.E. 706 (1927); Harmon v. Harmon, 245 N.C. 83, 95 S.E.2d 355 (1956).

When a complaint states a cause of action, the court, in the exercise of its discretion, may extend defendant's time to plead. Walker v. Nicholson, 257 N.C. 744, 127 S.E.2d 564 (1962).

Motion to Strike. - When a motion to strike is not made in apt time, the court has discretionary power to allow or deny such motion, and its ruling will not be disturbed on appeal in the absence of an abuse of discretion. McDaniel v. Fordham, 264 N.C. 62, 140 S.E.2d 736 (1965).

G.S. 136-107 as Exception to General Rule. - G.S. 136-107, limiting the time for the filing of answer in condemnation proceedings instituted by the Highway Commission, must be construed as an exception to the general power of the court to extend the time for the filing of pleadings, so that the court has no discretionary power to allow the filing of an answer after the time limited in the condemnation statute. State Hwy. Comm'n v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967).

Exercise of Discretion Not Generally Subject to Review. - It is generally held that whenever the judge is vested with a discretion, his doing or refusal to do the act in question is not reviewable upon appeal. Beck v. Bellamy, 93 N.C. 129 (1885); Best v. British & Am. Mtg. Co., 131 N.C. 70, 42 S.E. 456 (1902); Wilmington v. McDonald, 133 N.C. 548, 45 S.E. 864 (1903); United Am. Free-will Baptist Church, N.E. Conference v. United Am. Free-will Baptist Church, N.W. Conference, 158 N.C. 564, 74 S.E. 14 (1912); Early v. Eley, 243 N.C. 695, 91 S.E.2d 919 (1956); Harmon v. Harmon, 245 N.C. 83, 95 S.E.2d 355 (1956).

Absent Abuse of Discretion. - A judgment or order rendered by a judge of the superior court in the exercise of a discretionary power is not subjected to review by appeal to the Supreme Court, unless there has been an abuse of discretion on his part. State Hwy. Comm'n v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967).

If exercise of a discretionary power is refused upon the ground that the court has no power to grant a motion addressed to its discretion, the ruling of the court is reviewable. State Hwy. Comm'n v. Hemphill, 269 N.C. 535, 153 S.E.2d 22 (1967).

I. IN GENERAL.

The only effect and purpose of section (d) of this rule is to eliminate the former practice of introducing cases to the jury by reading the pleadings; it is not concerned with the admissibility of evidence, one of the basic principles of which, under the adversary system of litigation, is that anything a litigant says about his case, if relevant and not otherwise rendered inadmissible, can be put in evidence against him. Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329 (1984).

As to propriety of hearing motions for preliminary injunctions on affidavits when proceeding under G.S. 1-485(1) for a preliminary injunction, see State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802 (1972).

Applied in Mangum v. Surles, 12 N.C. App. 547, 183 S.E.2d 839 (1971); Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80 (1972); City of Durham v. Lyckan Dev. Corp., 26 N.C. App. 210, 215 S.E.2d 814 (1975); Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806 (1975); Barnes v. Barnes, 30 N.C. App. 196, 226 S.E.2d 549 (1976); State v. West, 31 N.C. App. 431, 229 S.E.2d 826 (1976); Biddix v. Kellar Constr. Corp., 32 N.C. App. 120, 230 S.E.2d 796 (1977); In re Spinks, 32 N.C. App. 422, 232 S.E.2d 479 (1977); North Brook Farm Lines v. McBrayer, 35 N.C. App. 34, 241 S.E.2d 74 (1978); Sawyer v. Cox, 36 N.C. App. 300, 244 S.E.2d 173 (1978); Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978); Mazzocone v. Drummond, 42 N.C. App. 493, 256 S.E.2d 843 (1979); Bailey v. Gooding, 45 N.C. App. 335, 263 S.E.2d 634 (1980); Meachan v. Montgomery County Bd. of Educ., 47 N.C. App. 271, 267 S.E.2d 349 (1980); Hamlin v. Hamlin, 302 N.C. 478, 276 S.E.2d 381 (1981); Connor v. Royal Globe Ins. Co., 56 N.C. App. 1, 286 S.E.2d 810 (1982); Towery v. Anthony, 68 N.C. App. 216, 314 S.E.2d 570 (1984); Tay v. Flaherty, 100 N.C. App. 51, 394 S.E.2d 217 (1990); Pierce v. Johnson, 154 N.C. App. 34, 571 S.E.2d 661 (2002); Sprinkle v. N.C. Wildlife Res. Comm'n, 165 N.C. App. 721, 600 S.E.2d 473 (2004); Akshar Distrib. Co. v. Smoky's Mart Inc., - N.C. App. - , 837 S.E.2d 621 (2020).

Cited in Jackson v. Jones, 1 N.C. App. 71, 159 S.E.2d 580 (1968); Doxol Gas of Angier, Inc. v. Barefoot, 10 N.C. App. 703, 179 S.E.2d 890 (1971); North Carolina Monroe Constr. Co. v. Guilford County Bd. of Educ., 278 N.C. 633, 180 S.E.2d 818 (1971); Walton v. Meir, 14 N.C. App. 183, 188 S.E.2d 56 (1972); Spartan Leasing, Inc. v. Brown, 14 N.C. App. 383, 188 S.E.2d 574 (1972); Bill v. Hughes, 21 N.C. App. 152, 203 S.E.2d 395 (1974); Thacker v. Harris, 22 N.C. App. 103, 205 S.E.2d 744 (1974); Student Bar Ass'n Bd. of Governors v. Byrd, 32 N.C. App. 530, 232 S.E.2d 855 (1977); Gardner v. Gardner, 294 N.C. 172, 240 S.E.2d 399 (1978); Craver v. Craver, 298 N.C. 231, 258 S.E.2d 357 (1979); Johnson v. Robert Dunlap & Racing, Inc., 53 N.C. App. 312, 280 S.E.2d 759 (1981); Roberts v. Heffner, 51 N.C. App. 646, 277 S.E.2d 446 (1981); Brown v. Lanier, 60 N.C. App. 575, 299 S.E.2d 279 (1983); McNeal v. Black, 61 N.C. App. 305, 300 S.E.2d 575 (1983); Chappell v. Redding, 67 N.C. App. 397, 313 S.E.2d 239 (1984); Beard v. Pembaur, 68 N.C. App. 52, 313 S.E.2d 853 (1984); In re Estate of English, 83 N.C. App. 359, 350 S.E.2d 379 (1986); Smith v. North Carolina Farm Bureau Mut. Ins. Co., 84 N.C. App. 120, 351 S.E.2d 774 (1987); Stone v. Stone, 96 N.C. App. 633, 386 S.E.2d 602 (1989); Gummels v. North Carolina Dep't of Human Resources, 97 N.C. App. 245, 388 S.E.2d 223 (1990); Curtis v. Curtis, 104 N.C. App. 625, 410 S.E.2d 917 (1991); Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700 (1992); Kaplan v. Prolife Action League, 111 N.C. App. 1, 431 S.E.2d 828 (1993); Dunkley v. Shoemate, 1 21 N.C. App. 360, 465 S.E.2d 319 (1996); Soderlund v. North Carolina Sch. of Arts, 125 N.C. App. 386, 481 S.E.2d 336 (1997); Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 593 S.E.2d 595 (2004), cert. denied, 358 N.C. 543, 599 S.E.2d 48, 599 S.E.2d 49 (2004); Santana v. Santana, 171 N.C. App. 432, 614 S.E.2d 438 (2005); Early v. County of Durham, Dep't of Soc. Servs., 193 N.C. App. 334, 667 S.E.2d 512 (2008), review denied, 363 N.C. 372, 678 S.E.2d 237 (2009); Stewart v. Hodge, 211 N.C. App. 605, 711 S.E.2d 175 (2011); State Farm Fire & Cas. Co. v. Durapro, 212 N.C. App. 216, 713 S.E.2d 1 (2011); Gandhi v. Gandhi, 244 N.C. App. 208, 779 S.E.2d 185 (2015); Kelley v. Kelley, 252 N.C. App. 467, 798 S.E.2d 771 (2017).

II. PLEADINGS.

The function of a reply is to deny the new matter alleged in the answer or affirmative defenses which the plaintiff does not admit. A reply may not state a cause of action. Other matters within a reply outside of this scope may properly be stricken on motion. Miller v. Ruth's of N.C. Inc., 69 N.C. App. 153, 316 S.E.2d 622, cert. denied, 312 N.C. 494, 322 S.E.2d 557 (1984).

Answer is a required responsive pleading, and denials are required to fairly meet the substance of the averments denied. In a client's legal malpractice case alleging that the lawyers failed to advise the client of use restrictions on land purchased by the client, the trial court's order dismissing the case as time-barred was affirmed, where the client had failed to specifically deny that he was notified of the land use restrictions approximately two months after closing on the purchase of the land, and over three years before filing the legal malpractice case. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915 (2004).

"Counterclaim Denominated as Such". - This rule, in providing that a reply must be filed "to a counterclaim denominated as such," implies there will be counterclaims not so denominated. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Allegations in Counterclaim Deemed Denied in Divorce Case. - Despite the fact that the wife did not respond to allegations of marital misconduct and fault contained in the husband's counterclaim in the parties' divorce case, pursuant to G.S. 50-10(a), all of the allegations of the counterclaim were deemed denied. Phillips v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff'd, 362 N.C. 171, 655 S.E.2d 350 (2008).

No Reply Required to "Counterclaim" Merely Asserting Affirmative Defense. - Plaintiff 's failure to file a reply to defendant's purported "counterclaim" did not operate as an admission of the facts alleged therein where defendant's pleading did nothing more than raise an affirmative defense to plaintiff 's cause of action to which a reply was neither required nor permitted by section (a). Eubanks v. First Protection Life Ins. Co., 44 N.C. App. 224, 261 S.E.2d 28 (1979), cert. denied, 299 N.C. 735, 267 S.E.2d 661 (1980).

Trial court erred in granting a wife's motion to dismiss a husband's alimony claim on the grounds that he failed to reply to the wife's counterclaims because the allegations set forth in the wife's counterclaims, and reiterated in a finding of fact in the trial court's order, were merely denials in affirmative form of the allegations of the complaint, and the trial court erred in deeming admitted the allegations in the wife's counterclaim that the husband was not a dependent spouse and that he was not a supporting spouse; a plaintiff is not required to re-allege those allegations in a complaint that have been "denied in the affirmative" by way of a counterclaim by a defendant. Crowley v. Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (2010), review denied, 364 N.C. 324, 700 S.E.2d 749, 2010 N.C. LEXIS 591 (2010).

Permission to File Reply to Affirmative Defenses. - Allegations of affirmative defenses were deemed denied or avoided, so normally a reply was not necessary to protect the plaintiff's rights; there was no inequity in the procedure used by the trial court in entering judgment on the pleadings in a lender's claim for a deficiency judgment against guarantors. If the lender believed a reply to the guarantors' affirmative defenses was necessary, the lender could have sought permission to file a reply to the affirmative defenses, and, in any event, the lender brought its defenses to the attention of the trial court by way of its response to the guarantors' motion, its trial brief, and its arguments before the trial court. Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 651 S.E.2d 386 (2007).

Reply Alleging Last Clear Chance Not Exclusive Pleading Alternative. - While the recommended pleading practice is for the plaintiff to file a reply alleging last clear chance, it is not the exclusive pleading alternative. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

Doctrine of Last Clear Chance Need Not Be Pleaded by Name. - While the plaintiff must plead the facts making the doctrine of last clear chance applicable on order to rely upon it, it is not required that he plead the doctrine by its generally accepted name. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

But Some Pleading Alleging Last Clear Chance Is Necessary. - The words "may serve a reply" in section (a) could be misleading if a plaintiff construed the "may" as permissive and the failure to file a reply as not foreclosing any rights. When section (a) is read in conjunction with G.S. 1A-1, Rule 8(d), it is evident that some pleading alleging last clear chance is necessary if a plaintiff seeks to prove the avoidance at trial, because G.S. 1A-1, Rule 8(d) only deems affirmative defenses appearing in the answer as denied or avoided if a responsive pleading is neither required nor permitted. Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

Where the plaintiff in a negligence action did not exercise the option of filing a reply alleging last clear chance, nor plead facts in his complaint sufficient to invoke the doctrine, the pleadings were not sufficient to raise the defense. Meadows v. Lawrence, 75 N.C. App. 86, 330 S.E.2d 47 (1985), aff'd, 315 N.C. 383, 337 S.E.2d 851 (1986).

Until a pleading is withdrawn or changed with court's approval, it is a binding judicial admission of any fact stated therein; and the fact that that the pleading was signed only by lawyer makes no difference, unless it is made to appear that the party's attorney acted without authority. Stilwell v. Walden, 70 N.C. App. 543, 320 S.E.2d 329 (1984).

Procedure at Trial Where Party Not Permitted to File Responsive Pleading. - A party who is not permitted to file a responsive pleading may meet the allegations at trial in any manner that would have been proper had a reply been allowed. Malloy v. Malloy, 33 N.C. App. 56, 234 S.E.2d 199 (1977).

The right to amend the pleadings of a cause and allow answers or other pleadings to be filed at any time is an inherent power of the district and superior courts, which they may exercise at their discretion, unless prohibited by some statutory enactment or unless vested rights are interfered with. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420 (1972).

Joining Request for Equitable Distribution in a Reply. - A plaintiff in a divorce action may admit to a claim for equitable distribution in a reply, and join in the claims for an equitable distribution of the marital property through a reply pleading. The defendant is precluded, by principles of equitable estoppel, from defeating plaintiff's right to equitable distribution by submitting to a voluntary dismissal of his counterclaim. Hunt v. Hunt, 117 N.C. App. 280, 450 S.E.2d 558 (1994).

Pleading Damages to Jury. - Notwithstanding section (a) of this rule, it is still the practice in this State for counsel for both sides to suggest in argument to the jury, if they wish, lump-sum amounts for the jury's consideration on the personal injury damage issue. Trial judges, for example, ordinarily instruct juries on this issue as follows: "I instruct you that if you reach this issue, you are not to be governed by the amount of damages suggested by the parties or their attorneys, but you are to be governed exclusively by the evidence in the case and the rules of law I have given you with respect to the measure of damages." Weeks v. Holsclaw, 306 N.C. 655, 295 S.E.2d 596 (1982), rehearing denied, 307 N.C. 273, 302 S.E.2d 884 (1983).

G.S. 1A-1, N.C. R. Civ. P. 7, 26, and G.S. 8C-1, N.C. R. Civ. P. 101 et seq., permitted a husband who had not yet been declared a child's father to file pleadings and motions, obtain discovery, and present evidence; accordingly, the husband could have introduced evidence of his paternity and/or rebutted or discredited evidence of paternity presented by a putative father. Although the husband could have accomplished neither, his presence was not obviously, utterly immaterial, as it afforded him an opportunity to defend the presumption that he was the child's father and discredit the putative father's evidence to the contrary. In re Papathanassiou, 195 N.C. App. 278, 671 S.E.2d 572 (2009), review denied, 363 N.C. 374, 678 S.E.2d 667 (2009).

III. MOTIONS AND OTHER PAPERS.

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Similar Meaning of "Application" in Subsection (b)(1) and G.S. 50-16.8(b) and (d). - The word "application" as used in subsection (b)(1) of this rule and in former subsections (b) and (d) of G.S. 50-16.8 has reference to the same kind of procedure. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Under this rule, an application for default judgment is considered a motion in a civil action. Miller v. Belk, 18 N.C. App. 70, 196 S.E.2d 44, cert. denied, 283 N.C. 665, 197 S.E.2d 874 (1973).

A motion for involuntary dismissal may not be properly made pursuant to this rule, because this rule merely defines the form of motions made to the court. Smith v. Smith, 17 N.C. App. 416, 194 S.E.2d 568 (1973).

Oral motion made during the session of court at which a case is calendared is permitted by this rule. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979).

This rule clearly allows continuation of pre-rules practice under which oral motions to which no actual notice provision applied were allowed in an action during the session of court at which it was regularly calendared. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979).

A motion need not be made in writing if made during the session at which the cause is calendared for trial. Sims v. Oakwood Trailer Sales Corp., 18 N.C. App. 726, 198 S.E.2d 73, cert. denied, 283 N.C. 754, 198 S.E.2d 723 (1973).

Constructive Notice of Oral Motions. - Where an oral motion is appropriately made under this rule, the doctrine that a party to an action has constructive notice of all orders and motions made in the cause during the session of court at which the cause is regularly calendared is preserved in G.S. 1A-1, Rule 6 and this rule. Wood v. Wood, 297 N.C. 1, 252 S.E.2d 799 (1979).

Waiver of Notice. - Where the content of plaintiff's notice of hearing to modify custody, seeking "such relief as to the court may seem just and proper," was insufficient to comply with the requirement that the motion state the grounds therefor and the relief or order sought, but defendant's attorney failed to object, defendant waived proper notice of plaintiff's motion to modify custody. Dobos v. Dobos, 111 N.C. App. 222, 431 S.E.2d 861 (1993).

Pre-answer Motion to Dismiss was not a responsible pleading within the confines of Rule 12 of the North Carolina Rules of Civil Procedure, preventing the entry of default judgment pursuant to Rule 55 of the Rules of Civil Procedure. Eden's Gate, Ltd. v. Leeper, 121 N.C. App. 171, 464 S.E.2d 696 (1995).

Particularity of Grounds - Defendant store's motion to dismiss stated with sufficient particularity the grounds alleged by citing G.S. 1A-1, Rule 12(b)(4) and 12(b)(5) and specified that plaintiffs, a husband and wife, failed to properly serve it as a corporation and instead served a mailroom employee; fact that the store filed the affidavit of the mailroom employee after its motion was insignificant, because the trial court gave plaintiffs the opportunity to respond and oppose the amended motion. Lane v. Winn-Dixie Charlotte, Inc., 169 N.C. App. 180, 609 S.E.2d 456 (2005).

Defendant's motion to strike satisfied G.S. 1A-1, N.C. R. Civ. P. 7(b) and was properly granted as it cited G.S. 1A-1, N.C. R. Civ. P. 12(f) and specified that plaintiff's motions contained irrelevant and outrageous assertions; the trial court found that plaintiff's allegations were baseless and that plaintiff's conduct demonstrated a disregard for the rules of law and procedure, and defendant's motion specifically requested that the court strike from the record plaintiff's motion for sanctions and for relief from judgment, that the court enter an order that plaintiff's motions were not well grounded in law or in fact and were intended to harass defendant and its counsel, and that defendant recover all costs and reasonable attorneys' fees incurred in the defense of plaintiff's frivolous motions. Fatta v. M & M Props. Mgmt., 224 N.C. App. 18, 735 S.E.2d 836 (2012), cert. denied 134 S. Ct. 623, 187 L. Ed. 2d. 404, 2013 U.S. LEXIS 8148 (U.S. 2013).

Defendant's motion for sanctions satisfied G.S. 1A-1, N.C. R. Civ. P. 7(b) and was properly granted as it cited G.S. 1A-1, N.C. R. Civ. P. 11 and specified that plaintiff's motion for sanctions was frivolous and insufficient as a matter of law; the trial court found that plaintiff attempted to create a discovery dispute and filed his claims after a summary judgment had been entered without legal or factual support, relying on his own conclusory and factually inaccurate affidavit for the improper purpose of harassing defendant and causing it unnecessary time and expense in responding to the claims. Fatta v. M & M Props. Mgmt., 224 N.C. App. 18, 735 S.E.2d 836 (2012), cert. denied 134 S. Ct. 623, 187 L. Ed. 2d. 404, 2013 U.S. LEXIS 8148 (U.S. 2013).

Attorney's fee award was vacated because the asserted bases for the award were unclear, as were the court's bases for the award. In re Foreclosure of Real Prop. Under Deed of Trust from Garrett, 250 N.C. App. 358, 795 S.E.2d 1 (2016).

A bare-bones motion, which neither states the grounds therefor nor specifies the relief sought, fails to inform either the court or the adverse party of what the movant wants. Such complete failure to give notice cannot fairly be passed off as a technical defect, for where court and adverse cannot comprehend the basis of a motion, they are rendered powerless to respond to it. Dusenberry v. Dusenberry, 87 N.C. App. 490, 361 S.E.2d 605 (1987).

No Jurisdiction to Enter Order Where No Claim for Relief in Motion Papers. - Trial court lacked subject matter jurisdiction to enter an order on the county Department of Social Services' (DSS) "motion in the cause," which was made at the previous direction of the trial court for DSS to petition for termination of a mother's parental rights, where the motion lacked any request for relief, as required by G.S. 1A-1, Rule 7(b)(1); although the trial court had subject matter jurisdiction over termination proceedings and motions therein, pursuant to G.S.7B-200(a)(4) and 7B-1101, it was bound to follow the Rules of Civil Procedure in such an action, based on G.S. 1A-1, Rule 17(c)(2), and accordingly, the motion was found to be insufficient. In re McKinney, 158 N.C. App. 441, 581 S.E.2d 793 (2003).

Defendants' motion for a new trial did not meet the requirements of this section where the defendants merely stated that they were entitled to a new trial under G.S. 1A-1, Rule 59(a)(5), (a)(7) and (a)(8), but did not state any specific basis for granting a new trial. Meehan v. Cable, 135 N.C. App. 715, 523 S.E.2d 419 (1999).

Name and Number of Rule Pursuant to Which Motion Is Made. - While failure to give the number of the rule to which a motion is made is not necessarily fatal, it would be of great benefit to the trial court and the appellate court for counsel to name and number the rule pursuant to which a motion is made. Home Health & Hospice Care, Inc. v. Meyer, 88 N.C. App. 257, 362 S.E.2d 870 (1987).

While failure to give the number of the rule under which a motion is made is not necessarily fatal, the grounds for the motion and the relief sought must be consistent with the Rules of Civil Procedure. Gallbronner v. Mason, 101 N.C. App. 362, 399 S.E.2d 139, cert. denied, 329 N.C. 268, 407 S.E.2d 835 (1991), appeal dismissed, 333 N.C. 167, 399 S.E.2d 139 (1992).

State university's appeal of the denial of the university's motion to dismiss on sovereign immunity grounds under G.S. 1A-1, N.C. R. Civ. P. 12(b)(2) was dismissed because (1) the university did not obtain a ruling on that ground for dismissal, and (2) it was not unreasonable not to rule on that ground, since the motion did not cite the ground, so the issue was not preserved for appellate review. Murray v. Univ. of N.C. at Chapel Hill, 246 N.C. App. 86, 782 S.E.2d 531 (2016).

Motion to Alter or Amend Judgment. - In order to suspend the running of the appeal clock, a G.S. 1A-1, Rule 59(e) motion must not only be timely served, but it must also meet the demands of section (b) of this rule. Dusenberry v. Dusenberry, 87 N.C. App. 490, 361 S.E.2d 605 (1987).

If a G.S. 1A-1, Rule 59(e) motion fails to comply with the requirements of section (b) of this rule, it is ipso facto ineffective to suspend the running of appeal time. Dusenberry v. Dusenberry, 87 N.C. App. 490, 361 S.E.2d 605 (1987).

Trial court properly held that a motion to alter or amend violated G.S. 1A-1-7(b)(1) and was not a proper G.S. 1A-1-59(e) motion because the motion did not make reference to any of the grounds of that rule, did not use any of the language from the rule that gave notice of reliance on any of those grounds, and did not reveal the basis of the motion in terms of that rule; further, because the time for filing an appeal was not tolled by the improper G.S. 1A-1-59 motion, the notice of appeal was not a timely appeal of the order dismissing the petition. N.C. Alliance for Transp. Reform, Inc. v. N.C. Dep't of Transp., 183 N.C. App. 466, 645 S.E.2d 105 (2007), review denied, 361 N.C. 569, 650 S.E.2d 812 (2007).

Motion to Amend Failed to Meet Requirements of Rule. - Trial court did not err by failing to address a former employee's alleged motions to amend because the employee's alleged oral request to amend was contingent upon the trial court's dismissal of the case and did not adequately inform either the trial court or defendants that the employee truly intended to amend her complaint, but instead, the employee indicated a mere willingness to amend her complaint; the employee's alleged written motion, which took the form of a letter addressed to the trial judge and copied to defense counsel, did not meet the requirements of a written motion to amend under G.S. 1A-1, Rules 7 and 10 because the letter contained no designation, caption, or numbered paragraphs, it was not filed with the trial court, and even assuming arguendo that the letter could be construed as a motion to amend, the employee failed to show any abuse of discretion in the trial court's decision to not allow the amendment. Helm v. Appalachian State Univ., 194 N.C. App. 239, 670 S.E.2d 571 (2008).

Trial court erred in granting a motion captioned "Motion to Forfeit Security Deposit" in a landlord-tenant dispute, where the motion was in essence an attempt to amend the complaint, which made no reference to a security deposit, and judgment had been entered in the case. Gallbronner v. Mason, 101 N.C. App. 362, 399 S.E.2d 139, cert. denied, 329 N.C. 268, 407 S.E.2d 835 (1991), appeal dismissed, 333 N.C. 167, 399 S.E.2d 139 (1992).

Statute of Limitations Defense. - Attorney's failure to affirmatively plead a statute of limitations defense in his written motion to dismiss did not bar the trial court from considering the defense because a partner briefed and argued that his fraud, negligent misrepresentation, and civil conspiracy claims were not time-barred; further, the motion was in writing and stated with sufficient particularity the grounds for dismissal. Carlisle v. Keith, 169 N.C. App. 674, 614 S.E.2d 542 (2005).

Timeliness of Responsive Pleading. - Although plaintiff had no right to file a responsive pleading to the answer under this rule, plaintiff did have a continuing duty to review the appropriateness of persisting in litigating a claim which was alleged to be time-barred. Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 400 S.E.2d 435 (1991).

Motions for costs and fees were not time-barred. - The 14-day rule in Rule 54(d)(2)(B), F.R.Civ.P., clearly does not apply to litigation pending in North Carolina state courts, and the North Carolina Rules of Civil Procedure contain neither a counterpart to federal Rule 54(d)(2)(B) nor a deadline for filing a motion for costs and fees. Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 525 S.E.2d 481 (2000).

Particularity requirement of N.C. R. Civ. P. 7(b)(1) was met by a plaintiff with regard to upholding a trial court's judgment that plaintiff provided sufficient evidence to survive defendant insurance company's motion for summary judgment in a negligence and fraud action wherein one of the insurance company's agents misappropriated the plaintiff's annuity fund for his own gambling habit because the plaintiff presented sufficient allegations to support a jury finding that the insurance company failed to exercise reasonable skill, care, and diligence in allowing themselves to have been misled by the fraudulent acts of its agent or in failing to timely discover the fraud. White v. Consol. Planning, Inc., 166 N.C. App. 283, 603 S.E.2d 147 (2004), cert. denied, - N.C. - , 610 S.E.2d 717 (2005).

Limited liability company (LLC) showed no error in dismissing the LLC's complaint under G.S. 1A-1, N.C. R. Civ. P. 41, when the motion to dismiss cited G.S. 1A-1, N.C. R. Civ. P. 12(b)(6) and (7), because (1) the LLC responded to the former argument and sought no continuance, and (2) the LLC's appellate claim of lack of notice of the argument was unpreserved. Don't Do It Empire, LLC v. Tenntex, 246 N.C. App. 46, 782 S.E.2d 903 (2016).

IV. ABOLITION OF DEMURRERS, PLEAS, ETC.

.

"Pleas" Abolished. - Under section (c) of this rule, "pleas" are specifically abolished. Lehrer v. Edgecombe Mfg. Co., 13 N.C. App. 412, 185 S.E.2d 727 (1972).

Concept of "Defective Statement of a Good Cause of Action" Abolished. - When section (c) of this rule abolished demurrers and decreed that pleas "for insufficiency shall not be used," it also abolished the concept of "a defective statement of a good cause of action." Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12 (1970); Forrester v. Garrett, 280 N.C. 117, 184 S.E.2d 858 (1971).

Section (c) of this rule abolished demurrers, and with them the concept of a defective statement of a good cause of action. Dale v. Lattimore, 12 N.C. App. 348, 183 S.E.2d 417, cert. denied, 279 N.C. 619, 184 S.E.2d 113 (1971).

Motion to Dismiss May Be Interposed to Defective Claim. - Generally speaking, the motion to dismiss under G.S. 1A-1, Rule 12(b)(6) may be successfully interposed to a complaint which states a defective claim or cause of action. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Forrester v. Garrett, 280 N.C. 117, 184 S.E.2d 858 (1971).

But Not to Defective Statement of Good Claim. - The motion to dismiss under G.S. 1A-1, Rule 12(b)(6) may not be successfully interposed to a complaint which was formerly labeled a "defective statement of a good cause of action." For such complaint, other provisions of G.S. 1A-1, Rule 12, the rules governing discovery, and the motion for summary judgment provide procedures adequate to supply information not furnished by the complaint. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Forrester v. Garrett, 280 N.C. 117, 184 S.E.2d 858 (1971).

I. IN GENERAL.

Section (b) of this rule is virtually identical to FRCP, Rule 8(b). Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302 (1986).

Taken together, § 1A-1, Rule 12(b)(6) and section (a) of this rule suggest pleadings should be limited to those facts or descriptions of transactions, occurrences, or series of transactions or occurrences, intended to be proved. Bowlin v. Duke Univ., 108 N.C. App. 145, 423 S.E.2d 320 (1992), cert. denied, 333 N.C. 461, 427 S.E.2d 618 (1993).

Purpose of Section (a). - The purpose of section (a) is to establish that the plaintiff will be entitled to some form of relief should he prevail on the claim raised by the factual allegations in his complaint. Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 452 S.E.2d 233 (1994).

The right to amend the pleadings of a cause and allow answers or other pleadings to be filed at any time is an inherent power of the district and superior courts, which they may exercise at their discretion, unless prohibited by some statutory enactment or unless vested rights are interfered with. Johnson v. Johnson, 14 N.C. App. 40, 187 S.E.2d 420 (1972).

A motion to amend an answer is addressed to the sound discretion of the trial judge, and he has broad discretion in permitting or denying amendments. Hinson v. Brown, 80 N.C. App. 661, 343 S.E.2d 284, appeal dismissed and cert. denied, 318 N.C. 282, 348 S.E.2d 138 (1986).

This rule did not remove all requirements of particularity. Thus, mere assertion of a grievance will not suffice, but the pleader must plead with sufficient particularity to identify the legal issues and to allow the other party to frame a responsive pleading. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

The policy behind the notice theory of the present rules is to resolve controversies on the merits, following opportunity for discovery, rather than resolving them on technicalities of pleading. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

A pleading cannot give notice of occurrences that take place a year after filing of the pleading. Gordon v. Gordon, 7 N.C. App. 206, 171 S.E.2d 805 (1970).

Admissions in the pleadings and stipulations by the parties have the same effect as jury findings; the jury is not required to find the existence of such facts, and nothing else appearing, they are conclusive and binding upon the parties and the trial judge. Crowder v. Jenkins, 11 N.C. App. 57, 180 S.E.2d 482 (1971). See Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463 (1988), cert. denied, 324 N.C. 246, 378 S.E.2d 420 (1989).

Answer Treated as Counterclaim. - In a suit for absolute divorce, where defendant admitted the allegations of the complaint and prayed for an absolute divorce on the same grounds, the fact that defendant's pleading was labelled an "answer" did not preclude its being treated also as a counterclaim. McCarley v. McCarley, 289 N.C. 109, 221 S.E.2d 490 (1976).

Sanctions for Violations. - Although a dismissal with prejudice pursuant to subsection (b) is available as a sanction for a violation of subdivision (a)(2), it is not the only available sanction and should be imposed only where the trial court determines that less drastic sanctions are insufficient; therefore, the trial court did not err in only striking the punitive damages award in the slander case as a sanction. McLean v. Mechanic, 116 N.C. App. 271, 447 S.E.2d 459 (1994), review denied, 339 N.C. 738, 454 S.E.2d 654, cert. denied, 339 N.C. 738, 454 S.E.2d 653 (1995).

The trial court has the same authority to punish a filing of a response to a request for monetary relief before the action has been called for trial or entry of default entered in violation of G.S. 1A-1, Rule 8(a)(2) as it would if a complaint demanding a specific sum above $10,000 were filed in violation of G.S. 1A-1, Rule 8(a)(2). A dismissal of the action pursuant to G.S. 1A-1, Rule 41(b) is one of the permissible sanctions for violating the provision of G.S. 1A-1, Rule 8(a)(2) regarding pleading of damages in excess of $10,000. Patterson v. Sweatt, 146 N.C. App. 351, 553 S.E.2d 404 (2001), aff'd, 560 S.E.2d 792 (N.C. 2002).

Removal to Federal Court. - Because subsection (a)(2) of this rule provides that certain negligence actions claiming in excess of $10,000 may only so state and, therefore, no specific amount was alleged in the complaint, defendants were required to offer evidence such as pleadings, affidavits or other matters in the record, in support of its claim that the controversy satisfied the federal jurisdictional amount for removal to federal court. Aerial Images, Inc. v. Anderson, - F. Supp. 2d - (E.D.N.C. Feb. 21, 2000).

District court denied the borrowers' motion to remand, under 28 U.S.C.S. § 1447(c), their action alleging violations of state law by the banks and loan trusts because it found that the amount in controversy exceed $75,000, as opposed to what the borrowers' complaint asserted. The banks and loan trusts pointed to N.C. R. Civ. P. 8(a)(2), which permitted the borrowers to recover more than what they pled in their complaint, and they produced evidence that the actual amount in controversy exceeded $75,000; the borrowers had also requested treble damages under G.S. 75-16. Dash v. FirstPlus Home Loan Trust 1996-2, 248 F. Supp. 2d 489 (M.D.N.C. 2003).

Plaintiff's motion to remand under 28 U.S.C.S. § 1447 was denied because the request for damages in the complaint was unclear and defendant had a right to a statement of relief sought under subdivision (a)(2) of this rule; therefore, defendant's notice of removal based on diversity jurisdiction under 28 U.S.C.S. § 1332 which, was filed within 30 days of defendant's receipt of the statement of relief sought, was timely under the second paragraph of 28 U.S.C.S. § 1446(b). Lee Elec. Constr., Inc. v. Eagle Elec., LLC, - F. Supp. 2d - (M.D.N.C. June 10, 2003).

Issue Not Presented to Trial Court. - Where a hospital authority included no claim for breach of an express contract, and it did not argue on appeal that its motion for summary judgment was properly granted based upon any breach of an express contract, the issue was not presented to the trial court for consideration pursuant to G.S. 1A-1, Rule 8. Charlotte-Mecklenburg Hosp. Auth. v. Talford, 214 N.C. App. 196, 714 S.E.2d 476 (2011), rev'd 2012 N.C. LEXIS 408 (N.C. 2012).

Applied in Carolina Freight Carriers Corp. v. Local 61, 11 N.C. App. 159, 180 S.E.2d 461 (1971); North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794 (1971); Long v. Coble, 11 N.C. App. 624, 182 S.E.2d 234 (1971); Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972); Clouse v. Chairtown Motors, Inc., 14 N.C. App. 117, 187 S.E.2d 398 (1972); Fruit & Produce Packaging Co., Div. of Inland Container Corp. v. Stepp, 15 N.C. App. 64, 189 S.E.2d 536 (1972); Thompson v. Watkins, 15 N.C. App. 208, 189 S.E.2d 615 (1972); Whitaker v. Whitaker, 16 N.C. App. 432, 192 S.E.2d 80 (1972); Beachboard v. Southern Ry., 16 N.C. App. 671, 193 S.E.2d 577 (1972); Brantley v. Dunstan, 17 N.C. App. 19, 193 S.E.2d 423 (1972); City of Kings Mt. v. Goforth, 283 N.C. 316, 196 S.E.2d 231 (1973); Chance v. Jackson, 17 N.C. App. 638, 195 S.E.2d 321 (1973); Nolan v. Boulware, 21 N.C. App. 347, 204 S.E.2d 701 (1974); Thacker v. Harris, 22 N.C. App. 103, 205 S.E.2d 744 (1974); Clary v. Alexander County Bd. of Educ., 286 N.C. 525, 212 S.E.2d 160 (1975); Rose v. Epley Motor Sales, 288 N.C. 53, 215 S.E.2d 573 (1975); Jones v. Pettiford, 24 N.C. App. 546, 211 S.E.2d 455 (1975); First-Citizens Bank & Trust Co. v. Akelaitis, 25 N.C. App. 522, 214 S.E.2d 281 (1975); Andrews v. North Carolina Farm Bureau Mut. Ins. Co., 26 N.C. App. 163, 215 S.E.2d 373 (1975); Fagan v. Hazzard, 29 N.C. App. 618, 225 S.E.2d 640 (1976); Haddock v. Smithson, 30 N.C. App. 228, 226 S.E.2d 411 (1976); N.C. Monroe Constr. Co. v. Coan, 30 N.C. App. 731, 228 S.E.2d 497 (1976); Huss v. Huss, 31 N.C. App. 463, 230 S.E.2d 159 (1976); North Carolina State Ports Auth. v. Lloyd A. Fry Roofing Co., 32 N.C. App. 400, 232 S.E.2d 846 (1977); Raccoon Valley Inv. Co. v. Toler, 32 N.C. App. 461, 232 S.E.2d 717 (1977); Student Bar Ass'n Bd. of Governors v. Byrd, 32 N.C. App. 530, 232 S.E.2d 855 (1977); Reid v. Reid, 32 N.C. App. 750, 233 S.E.2d 620 (1977); Ross v. Ross, 33 N.C. App. 447, 235 S.E.2d 405 (1977); Streeter v. Streeter, 33 N.C. App. 679, 236 S.E.2d 185 (1977); North Carolina Nat'l Bank v. McCarley & Co., 34 N.C. App. 689, 239 S.E.2d 583 (1977); Sawyer v. Cox, 36 N.C. App. 300, 244 S.E.2d 173 (1978); Nugent v. Beckham, 37 N.C. App. 557, 246 S.E.2d 541 (1978); Beal v. Dellinger, 38 N.C. App. 732, 248 S.E.2d 775 (1978); Sanders v. Walker, 39 N.C. App. 355, 250 S.E.2d 84 (1979); Annas v. Davis, 40 N.C. App. 51, 252 S.E.2d 28 (1979); Lee v. Capitol Tire Co., 40 N.C. App. 150, 252 S.E.2d 252 (1979); Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627 (1979); Mazzocone v. Drummond, 42 N.C. App. 493, 256 S.E.2d 843 (1979); Bell v. Martin, 43 N.C. App. 134, 258 S.E.2d 403 (1979); Angel v. Ward, 43 N.C. App. 288, 258 S.E.2d 788 (1979); Watts v. Watts, 44 N.C. App. 46, 260 S.E.2d 170 (1979); Patrick v. Mitchell, 44 N.C. App. 357, 260 S.E.2d 809 (1979); Town of Bladenboro v. McKeithan, 44 N.C. App. 459, 261 S.E.2d 260 (1980); First Peoples Sav. & Loan Ass'n v. Cogdell, 44 N.C. App. 511, 261 S.E.2d 259 (1980); Thornton v. Thornton, 45 N.C. App. 25, 262 S.E.2d 326 (1980); Mabe v. Dillon, 46 N.C. App. 340, 264 S.E.2d 796 (1980); Hazard v. Hazard, 46 N.C. App. 280, 264 S.E.2d 908 (1980); Munchak Corp. v. Caldwell,
46 N.C. App. 414, 265 S.E.2d 654 (1980); Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207, 274 S.E.2d 206 (1981); Connor v. Royal Globe Ins. Co., 56 N.C. App. 1, 286 S.E.2d 810 (1982); Whichard v. Oliver, 56 N.C. App. 219, 287 S.E.2d 461 (1982); Watson v. White, 60 N.C. App. 106, 298 S.E.2d 174 (1982); Watson v. White, 309 N.C. 498, 308 S.E.2d 268 (1983); Coastal Chem. Corp. v. Guardian Indus., Inc., 63 N.C. App. 176, 303 S.E.2d 642 (1983); Phillips v. Grand Union Co., 64 N.C. App. 373, 307 S.E.2d 205 (1983); Hendrix v. Hendrix, 67 N.C. App. 354, 313 S.E.2d 25 (1984); Norlin Indus., Inc. v. Music Arts, Inc., 67 N.C. App. 300, 313 S.E.2d 166 (1984); Carter v. Carr, 68 N.C. App. 23, 314 S.E.2d 281 (1984); Towery v. Anthony, 68 N.C. App. 216, 314 S.E.2d 570 (1984); Starling v. Sproles, 69 N.C. App. 598, 318 S.E.2d 94 (1984); Jennings v. Lindsey, 69 N.C. App. 710, 318 S.E.2d 318 (1984); Isenhour v. Isenhour, 71 N.C. App. 762, 323 S.E.2d 369 (1984); Adkins v. Adkins, 82 N.C. App. 289, 346 S.E.2d 220 (1986); MCB Ltd. v. McGowan, 86 N.C. App. 607, 359 S.E.2d 50 (1987); Westover Prods., Inc. v. Gateway Roofing Co., 94 N.C. App. 63, 380 S.E.2d 369 (1989); Midgette v. Pate, 94 N.C. App. 498, 380 S.E.2d 572 (1989); Young v. Warren, 95 N.C. App. 585, 383 S.E.2d 381 (1989); Town of Sparta v. Hamm, 97 N.C. App. 82, 387 S.E.2d 173 (1990); Oxendine v. Bowers, 100 N.C. App. 712, 398 S.E.2d 57 (1990); Wallace v. Haserick, 105 N.C. App. 315, 412 S.E.2d 694 (1992); Dunleavy v. Yates Constr. Co., 106 N.C. App. 146, 416 S.E.2d 193 (1992); Lewis v. Blackman, 116 N.C. App. 414, 448 S.E.2d 133 (1994); Hunt v. Hunt, 117 N.C. App. 280, 450 S.E.2d 558 (1994); Miller v. Talton, 112 N.C. App. 484, 435 S.E.2d 793 (1993); Haywood Street Redevelopment Corp. v. Harry S. Peterson, Co., 120 N.C. App. 832, 463 S.E.2d 564 (1995); Sloan v. Miller Bldg. Corp., 128 N.C. App. 37, 493 S.E.2d 460 (1997); Hoffman v. Vulcan Materials Co., 19 F. Supp. 2d 475 (M.D.N.C. 1998); Norman v. Nash Johnson & Sons' Farms, Inc., 140 N.C. App. 390, 537 S.E.2d 248 (2000); Beneficial Mortg. Co. of N.C. Inc. v. Barrington & Jones Law Firm, P.A., 164 N.C. App. 41, 595 S.E.2d 705 (2004); Sprinkle v. N.C. Wildlife Res. Comm'n, 165 N.C. App. 721, 600 S.E.2d 473 (2004); Revelle v. Chamblee, 168 N.C. App. 227, 606 S.E.2d 712 (2005); Allred v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 669 S.E.2d 777 (2008); Craig v. New Hanover County Bd. of Educ., 363 N.C. 334, 678 S.E.2d 351 (June 18, 2009); Estate of Means v. Scott Elec. Co., 207 N.C. App. 713, 701 S.E.2d 294 (2010); Highland Paving Co. v. First Bank, 227 N.C. App. 37, 742 S.E.2d 287 (2013); Johnson v. Starboard Ass'n, 244 N.C. App. 619, 781 S.E.2d 813 (2016).

Cited in Ketner v. Rouzer, 11 N.C. App. 483, 182 S.E.2d 21 (1971); Gore v. George J. Ball, Inc., 279 N.C. 192, 182 S.E.2d 389 (1971); Brewer v. Harris, 10 N.C. App. 515, 179 S.E.2d 160 (1971); Langdon v. Hurdle, 15 N.C. App. 158, 189 S.E.2d 517 (1972); Bercegeay v. Surfside Realty Co., 16 N.C. App. 718, 193 S.E.2d 356 (1972); Morris v. Dickson, 14 N.C. App. 122, 187 S.E.2d 409 (1972); In re Mark, 15 N.C. App. 574, 190 S.E.2d 381 (1972); Hamrick v. Beam, 19 N.C. App. 729, 200 S.E.2d 337 (1973); Wallace Men's Wear, Inc. v. Harris, 28 N.C. App. 153, 220 S.E.2d 390 (1975); Cogdill v. Scates, 290 N.C. 31, 224 S.E.2d 604 (1976); Recreatives, Inc. v. Travel-On Motorcycles Co., 29 N.C. App. 727, 225 S.E.2d 637 (1976); Critcher v. Ogburn, 30 N.C. App. 182, 226 S.E.2d 414 (1976); Gagan v. Hazzard, 34 N.C. App. 312, 237 S.E.2d 916 (1977); Biddix v. Kellar Constr. Corp., 32 N.C. App. 120, 230 S.E.2d 796 (1977); Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977); Booker v. Everhart, 33 N.C. App. 1, 234 S.E.2d 46 (1977); Acker v. Barnes, 33 N.C. App. 750, 236 S.E.2d 715 (1977); Hudspeth v. Bunzey, 35 N.C. App. 231, 241 S.E.2d 119 (1978); Craig v. Kessing, 36 N.C. App. 389, 244 S.E.2d 721 (1978); Thigpen v. Piver, 37 N.C. App. 382, 246 S.E.2d 67 (1978); Shellhorn v. Brad Ragan, Inc., 38 N.C. App. 310, 248 S.E.2d 103 (1978); Lupo v. Powell, 44 N.C. App. 35, 259 S.E.2d 777 (1979); Danjee, Inc. v. Addressograph Multigraph Corp., 44 N.C. App. 626, 262 S.E.2d 665 (1980); Cranford v. Helms, 53 N.C. App. 337, 280 S.E.2d 756 (1981); Outer Banks Contractors v. Forbes, 302 N.C. 599, 276 S.E.2d 375 (1981); Deal v. Christenbury, 50 N.C. App. 600, 274 S.E.2d 867 (1981); Hasty v. Carpenter, 51 N.C. App. 333, 276 S.E.2d 513 (1981); Patterson v. Phillips, 53 N.C. App. 802, 281 S.E.2d 716 (1981); Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981); Pigott v. City of Wilmington, 50 N.C. App. 401, 273 S.E.2d 752 (1981); Ridings v. Ridings, 55 N.C. App. 630, 286 S.E.2d 614 (1982); Federal Realty Inv. Trust v. Belk-Tyler of Elizabeth City, Inc., 56 N.C. App. 363, 289 S.E.2d 145 (1982); Loman-Garrett Supply Co. v. Dudney, 56 N.C. App. 622, 289 S.E.2d 600 (1982); Four Seasons Homeowners Ass'n v. Sellers, 62 N.C. App. 205, 302 S.E.2d 848 (1983); Hull v. Floyd S. Pike Elec. Contractor, 64 N.C. App. 379, 307 S.E.2d 404 (1983); Chappell v. Redding, 67 N.C. App. 397, 313 S.E.2d 239 (1984); Beard v. Pembaur, 68 N.C. App. 52, 313 S.E.2d 853 (1984); Hawkins v. State Capital Ins. Co., 74 N.C. App. 499, 328 S.E.2d 793 (1985); Wilder v. Amatex Corp., 314 N.C. 550, 336 S.E.2d 66 (1985); Rowe v. Franklin County, 318 N.C. 344, 349 S.E.2d 65 (1986); WXQR Marine Broadcasting Corp. v. JAI, Inc., 83 N.C. App. 520, 350 S.E.2d 912 (1986); Brown v. Lumbermens Mut. Cas. Co., 90 N.C. App. 464, 369 S.E.2d 367 (1988); Rivenbark v. Southmark Corp., 93 N.C. App. 414, 378 S.E.2d 196 (1989); Howell v. Landry, 96 N.C. App. 516, 386 S.E.2d 610 (1989); Sunamerica Fin. Corp. v. Bonham, 328 N.C. 254, 400 S.E.2d 435 (1991); Estridge v. Ford Motor Co., 101 N.C. App. 716, 401 S.E.2d 85 (1991); Metric Constructors, Inc. v. Industrial Risk Insurers, 102 N.C. App. 59, 401 S.E.2d 126 (1991); Fox v. Killian, 102 N.C. App. 819,
403 S.E.2d 546 (1991); Johnson v. North Carolina DOT, 107 N.C. App. 63, 418 S.E.2d 700 (1992); Marler v. Amoco Oil Co., 793 F. Supp. 656 (E.D.N.C. 1992); Heart of Valley Motel, Inc. v. Edwards, 111 N.C. App. 896, 433 S.E.2d 466 (1993); Griffin v. Holmes, 843 F. Supp. 81 (E.D.N.C. 1993); Burwell v. Giant Genie Corp., 115 N.C. App. 680, 446 S.E.2d 126 (1994); Tipton & Young Constr. Co. v. Blue Ridge Structure Co., 116 N.C. App. 115, 446 S.E.2d 603 (1994); Byrd v. Arrowood, 118 N.C. App. 418, 455 S.E.2d 672 (1995); Soderlund v. North Carolina Sch. of Arts, 125 N.C. App. 386, 481 S.E.2d 336 (1997); Estate of Smith ex rel. Smith v. Underwood, 127 N.C. App. 1, 487 S.E.2d 807, cert. denied, 347 N.C. 398, 494 S.E.2d 410 (1997); Soto v. McLean, 20 F. Supp. 2d 901 (E.D.N.C. 1998); State ex rel. Long v. Petree Stockton, 129 N.C. App. 432, 499 S.E.2d 790 (1998), cert. granted, 349 N.C. 240, 516 S.E.2d 607 (1998); Robinson v. Powell, 348 N.C. 562, 500 S.E.2d 714 (1998); Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891 (1998), appeal dismissed, 349 N.C. 356, 517 S.E.2d 891 (1998); First Atl. Mgt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 507 S.E.2d 56 (1998); Atkinson v. Atkinson, 132 N.C. App. 82, 510 S.E.2d 178 (1999); McIver v. Smith, 134 N.C. App. 583, 518 S.E.2d 522 (1999); Save Our Schs. of Bladen County, Inc. v. Bladen County Bd. of Educ., 140 N.C. App. 233, 535 S.E.2d 906 (2000); Schlossberg v. Goins, 141 N.C. App. 436, 540 S.E.2d 49 (2000); Mabrey v. Smith, 144 N.C. App. 119, 548 S.E.2d 183 (2001); Ausley v. Bishop, 150 N.C. App. 56, 564 S.E.2d 252 (2002); Orthodontic Ctrs. of Am., Inc. v. Hanachi, 151 N.C. App. 133, 564 S.E.2d 573 (2002), cert. denied, 356 N.C. 304, 570 S.E.2d 727 (2002); Childs v. Johnson, 155 N.C. App. 381, 573 S.E.2d 662 (2002); Lawson v. Tyco Elecs. Corp., 286 F. Supp. 2d 639 (M.D.N.C. 2003); Zubaidi v. Earl L. Pickett Enters., 164 N.C. App. 107, 595 S.E.2d 190 (2004); Dixon v. Hill, 174 N.C. App. 252, 620 S.E.2d 715 (2005), cert. denied, - U.S. - , 126 S. Ct. 2972, 165 L. Ed. 2d 954 (2006); State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 624 S.E.2d 371 (2005); James River Equip., Inc. v. Mecklenburg Utils., Inc., 179 N.C. App. 414, 634 S.E.2d 557 (2006); In re D.R.S., 181 N.C. App. 136, 638 S.E.2d 626 (2007); In re L.T.R., 181 N.C. App. 376, 639 S.E.2d 122 (2007); Wilson v. Wilson, 183 N.C. App. 267, 644 S.E.2d 379 (2007); Willow Bend Homeowners Ass'n v. Robinson, 192 N.C. App. 405, 665 S.E.2d 570 (2008); Hensey v. Hennessy, 201 N.C. App. 56, 685 S.E.2d 541 (2009); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38, 698 S.E.2d 404 (2010); Haynie v. Cobb, 207 N.C. App. 143, 698 S.E.2d 194 (2010); Johnson v. Johnson, 208 N.C. App. 118, 701 S.E.2d 722 (2010); Rabon v. Hopkins, 208 N.C. App. 351, 703 S.E.2d 181 (2010), review denied 365 N.C. 195, 710 S.E.2d 22, 2011 N.C. LEXIS 470 (N.C. 2011); Cohen v. McLawhorn, 208 N.C. App. 492, 704 S.E.2d 519 (2010); Quesinberry v. Quesinberry, 210 N.C. App. 578, 709 S.E.2d 367 (2011); Hous. Auth. v. Sparks Eng'g, PLLC, 212 N.C. App. 184, 711 S.E.2d 180 (2011); Ray v. Greer, 212 N.C. App. 358, 713 S.E.2d 93 (2011), cert. denied, 718 S.E.2d 634, 2011 N.C. LEXIS 944 (2011); Herbert v. Marcaccio, 213 N.C. App. 563, 713 S.E.2d 531
(2011); N.C. State Bar v. Barrett, 219 N.C. App. 481, 724 S.E.2d 126 (2012); Bigelow v. Town of Chapel Hill, 227 N.C. App. 1, 745 S.E.2d 316, review denied, 747 S.E.2d 543, 2013 N.C. LEXIS 806 (2013); McMillan v. Ryan Jackson Props., LLC, 232 N.C. App. 35, 753 S.E.2d 373 (2014); Town of Black Mt. v. Lexon Ins. Co., 238 N.C. App. 180, 768 S.E.2d 302 (2014); Kearney v. Bolling, 242 N.C. App. 67, 774 S.E.2d 841 (2015); DOT v. Adams Outdoor Adver. of Charlotte Ltd. P'ship, 247 N.C. App. 39, 785 S.E.2d 151 (2016), aff'd in part and rev'd in part, 370 N.C. 101, 804 S.E.2d 486, 2017 N.C. LEXIS 687 (2017); Piazza v. Kirkbride, 246 N.C. App. 576, 785 S.E.2d 695 (2016); Unifund CCR, LLC v. Francois, 260 N.C. App. 433, 817 S.E.2d 915 (2018).

II. PLEADINGS; GENERALLY.

This rule did not remove all requirements of particularity. Thus, mere assertion of a grievance will not suffice, but the pleader must plead with sufficient particularity to identify the legal issues and to allow the other party to frame a responsive pleading. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

The requirement of particularity in G.S. 1A-1, Rule 9(b) must be reconciled with this rule, which requires a short and concise statement of claims, and with the general notice pleading theory of the Rules of Civil Procedure. Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718 (1981).

Compliance With Subsections (b) and (c). - Trial court did not abuse its discretion when it denied an G.S. 1A-1, N.C. R. Civ. P. 12(f), motion to strike the overview section of a count's answer to a complaint for declaratory relief. The answer complied with G.S. 1A-1, N.C. R. Civ. P. 8(b) and (c), the objectionable language ascribed a motive for plaintiff's institution of litigation that was personal to him as one engaged in business pursuits with an alternative plan for the subject properties, and the matter might have had a bearing upon the litigation. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

Phrases "Cause of Action" and "Claim for Relief " Not Substantially Different. - While neither the North Carolina nor the federal rules incorporate the phrase "cause of action," in the manner of their use, there is no substantial difference in the meaning of "cause of action" and "claim for relief." Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

As to the use of precedent under New York and federal rules in construing this section, see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

Concept of "Notice Pleading" Adopted. - By repealing G.S. 1-122, which required a complaint to state "the facts constituting a cause of action," and substituting in lieu thereof the requirement that a "claim for relief " shall be stated with sufficient particularity to give notice of the events intended to be proved showing that the pleader is entitled to relief, the legislature intended to relax somewhat the strict requirements of detailed fact pleading and to adopt the concept of "notice pleading." Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

By repealing former section which required a complaint to state "the facts constituting a cause of action," and substituting in lieu thereof the requirement that a "claim for relief " shall be stated with sufficient particularity to give notice of the events intended to be proved showing that the pleader is entitled to relief, the legislature obviously intended to change prior law. Its choice of "new semantics" was neither accidental nor casual. Rather, the legislature intended to relax somewhat the strict requirements of detailed fact pleading and to adopt the concept of "notice pleading." Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

By repealing G.S. 1-122 and enacting subsection (a)(1) of this rule, the General Assembly intended to relax somewhat the strict requirements of detailed fact pleading and to adopt the concept of "notice pleading." Madigan v. Jenkins, 31 N.C. App. 391, 229 S.E.2d 213 (1976).

This rule was intended to liberalize pleading requirements by adopting the concept of "notice pleading," thereby abolishing the more strict requirements of "fact pleading." Smith v. North Carolina Farm Bureau Mut. Ins. Co., 84 N.C. App. 120, 351 S.E.2d 774, aff'd, 321 N.C. 60, 361 S.E.2d 571 (1987).

In enacting subsection (a)(1), the General Assembly adopted the concept of notice pleading. Pyco Supply Co. v. American Centennial Ins. Co., 321 N.C. 435, 364 S.E.2d 380 (1988).

The policy behind the notice theory of the present rules is to resolve controversies on the merits, following opportunity for discovery, rather than resolving them on technicalities of pleading. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

Controversies to Be Resolved on Merits and Not Technicalities. - The adoption of the notice theory of pleading indicates the legislature's intention that controversies be resolved on their merits, following an opportunity for discovery, rather than resolving them on technicalities of pleading. Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, cert. denied, 322 N.C. 610, 370 S.E.2d 257 (1988).

Detailed Fact Pleading No Longer Required. - Under the "notice theory" of pleading contemplated by subsection (a)(1), detailed fact pleading is no longer required. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12 (1970); Madigan v. Jenkins, 31 N.C. App. 391, 229 S.E.2d 213 (1976).

Under the notice theory of this rule, pleadings need not contain detailed factual allegations to raise issues. Southern of Rocky Mount, Inc. v. Woodward Specialty Sales, Inc., 52 N.C. App. 549, 279 S.E.2d 32 (1981).

But there is nothing in the rules to prevent detailed pleading if the pleader deems it desirable. He may plead enough facts to prevent the invocation of discovery devices or the use of motions for more definite statement. Such a complaint could clearly identify the issues, since G.S. 1A-1, Rule 10(b) requires the claim or claims to be averred in numbered paragraphs. In other words, there is nothing to prevent skillful and candid pleaders from meeting head-on in the pleadings. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

Simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971).

Effect of Notice Pleading in One-Year Provision. - Wrongful death complaint was properly dismissed on the statute of limitations because it failed to satisfy the N.C. R. Civ. P. 8(a)(1) notice pleadings requirements where it did not show an entitlement to relief; therefore, the one-year tolling provision in N.C. R. Civ. P. 41(a)(1) was unavailable. Inter alia, the complaint did not include an allegation that a propane company owed any duty to a decedent or that the propane tank installed in a barn was defective, unreasonably dangerous, improperly installed, or negligently maintained. Murphy v. Hinton, 242 N.C. App. 95, 773 S.E.2d 355 (2015).

Sufficiency of Pleading Under Notice Theory. - Under the "notice theory of pleading," a statement of claim is adequate if it gives sufficient notice of the claim asserted to enable the adverse party to answer and prepare for trial, to allow for the application of the doctrine of res judicata, and to show the type of case brought. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971); Roberts v. William N. & Kate B. Reynolds Mem. Park, 281 N.C. 48, 187 S.E.2d 721 (1972); Lewis v. Gastonia Air Serv., Inc., 16 N.C. App. 317, 192 S.E.2d 6 (1972); Patterson v. Weatherspoon, 17 N.C. App. 236, 193 S.E.2d 585 (1972); Randolph v. Schuyler, 18 N.C. App. 393, 197 S.E.2d 3 (1973), rev'd on other grounds, 284 N.C. 496, 201 S.E.2d 833 (1974); Luther v. Hauser, 24 N.C. App. 71, 210 S.E.2d 218 (1974).

A pleading complies with this rule if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand the nature of it and the basis for it, to file a responsive pleading, and, by using the rules provided for obtaining pretrial discovery, to get any additional information he may need to prepare for trial. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970); Cassels v. Ford Motor Co., 10 N.C. App. 51, 178 S.E.2d 12 (1970); Lewis v. Gastonia Air Serv., Inc., 16 N.C. App. 317, 192 S.E.2d 6 (1972); Patterson v. Weatherspoon, 17 N.C. App. 236, 193 S.E.2d 585 (1972); Roberts v. Whitley, 17 N.C. App. 554, 195 S.E.2d 62 (1973); Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979); Henry v. Deen, 61 N.C. App. 189, 300 S.E.2d 707 (1983); Huff v. Chrismon, 68 N.C. App. 525, 315 S.E.2d 711, cert. denied, 311 N.C. 756, 321 S.E.2d 134 (1984); Brad Ragan, Inc. v. Callicut Enters., Inc., 73 N.C. App. 134, 326 S.E.2d 62 (1985); Buchanan v. Hunter Douglas, Inc., 87 N.C. App. 84, 359 S.E.2d 271, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

The allegations of the verified complaint were sufficiently particular as required by this rule to give the defendant notice of the transactions and occurrences intended to be proved and the type of relief demanded. North Am. Acceptance Corp. v. Samuels, 11 N.C. App. 504, 181 S.E.2d 794 (1971).

True test under this rule is whether the pleading gives fair notice and states the elements of the claim plainly and succinctly. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

A party is not required to plead evidence. Lea Co. v. North Carolina Bd. of Transp., 308 N.C. 603, 304 S.E.2d 164 (1983).

Under the "notice theory of pleading" a complainant must state a claim sufficient to enable the adverse party to understand the nature of the claim, to answer, and to prepare for trial. Ipock v. Gilmore, 73 N.C. App. 182, 326 S.E.2d 271, cert. denied, 314 N.C. 116, 332 S.E.2d 481 (1985).

Under the notice theory of pleading, a complaint need no longer allege facts or elements showing aggravating circumstances which would justify an award of punitive damages. Huff v. Chrismon, 68 N.C. App. 525, 315 S.E.2d 711, cert. denied, 311 N.C. 756, 321 S.E.2d 134 (1984).

Under our modern practice only claims for fraud, duress, libel and slander have to be pleaded with any particularity at all. In all other instances the complaint is sufficient if it gives the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved, showing that the pleader is entitled to relief. Newton v. Whitaker, 83 N.C. App. 112, 349 S.E.2d 333 (1986), aff'd, 319 N.C. 455, 355 S.E.2d 138 (1987).

A pleading is sufficient if it gives notice of the events and transactions and allows the adverse party to understand the nature of the claim and to prepare for trial. Smith v. North Carolina Farm Bureau Mut. Ins. Co., 84 N.C. App. 120, 351 S.E.2d 774, aff'd, 321 N.C. 60, 361 S.E.2d 571 (1987).

Under the notice theory of pleading, a statement of a claim is adequate if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand its nature and basis and to file a responsive pleading. Pyco Supply Co. v. American Centennial Ins. Co., 321 N.C. 435, 364 S.E.2d 380 (1988).

A worker's complaint demanding entry of judgment against his employer for the sums due under an Industrial Commission Form 60 was an acceptable method for asserting a claim, where the complaint failed to state that the claimant was seeking judgment under this section, but he pled facts sufficient to alert the employer that relief was being sought under this section. Calhoun v. Wayne Dennis Heating & Air Conditioning, 129 N.C. App. 794, 501 S.E.2d 346 (1998).

Where plaintiff's complaint did not allege equitable mortgage as a possible claim against defendants, and did not allege any facts that would put defendants on notice of an equitable mortgage claim, plaintiff's pleadings did not provide defendants with the notice of such claim as required by section (a) of this rule. Parkersmith Props. v. Johnson, 136 N.C. App. 626, 525 S.E.2d 491 (2000).

Wife did not sufficiently plead her claim for alimony when her counterclaim for this relief only requested a certain monthly amount of alimony because she did not specify the grounds upon which she based her alimony claim, so her husband was not put on notice of such grounds and could not defend against them, as required by G.S.1A-1-8(a)(1). Coleman v. Coleman, 182 N.C. App. 25, 641 S.E.2d 332 (2007).

Former husband's allegation that he and his former wife understood that, despite title in both names, certain properties would remain his sole property and that they would pass, as a whole, to the parties' only son, sufficiently described the alleged agreement between the parties, enough that petitioner former wife would have notice of the husband's claim, as required by G.S. 1A-1, N.C. R. Civ. P. 8(a)(1). Dillingham v. Dillingham, 202 N.C. App. 196, 688 S.E.2d 499 (2010).

Dismissal of North Carolina counties' contract claim was appropriate because the appellate court could not find that the counties' contract theory was sufficiently pled to provide online travel companies with notice of the counties' contractual obligation theory. Wake County v. Hotels.com, L.P., 235 N.C. App. 633, 762 S.E.2d 477, review denied 367 N.C. 799, 2014 N.C. LEXIS 1229 (2014).

Allegations of the complaint as to failing to safeguard clients' funds were sufficient under the notice pleading standard to give the attorney sufficient notice of the events or transactions which produced the claim so as to understand its nature and prepare for trial. N.C. State Bar v. Merrell, 243 N.C. App. 356, 777 S.E.2d 103 (2015).

Under the notice-pleading standard, the allegations of plaintiff's complaint were adequate for her rescission claim to survive a dismissal for failure to allege sufficient facts to state a claim because, despite not enumerating a separate rescission claim, when accepting the factual allegations surrounding the execution of the separation agreement as true, and liberally construing plaintiff's complaint, her complaint provided defendant sufficient notice of the transaction - the allegedly invalid execution of the separation agreement - to produce a claim for rescission of that agreement; thus, the trial court improperly dismissed her rescission claim for failure to allege sufficient facts. Holton v. Holton, 258 N.C. App. 408, 813 S.E.2d 649 (2018).

Because the wife's complaint made no mention of the husband's driving tendencies, and none of the allegations in the complaint provided the husband with notice that his driving would be an issue at the hearing, the trial court erred in admitting testimony regarding his alleged reckless driving and finding that ground as a basis for its conclusion that the husband committed domestic violence. Martin v. Martin, - N.C. App. - , 832 S.E.2d 191 (2019).

Pro se complaint was improperly dismissed for failure to state a claim where plaintiff alleged that defendant was verbally abusive to her and her children, that her daughter had reported allegations of sexual abuse committed by defendant to her school counselor, and the additional alleged acts of abuse were sufficiently detailed so as to give the court and defendant a fair idea of what plaintiff was complaining. Quackenbush v. Groat, - N.C. App. - , 844 S.E.2d 26 (2020).

All this rule requires is a "short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff 's claim is and the grounds upon which it rests. Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971).

It was error for the court to strike a lengthy, highly detailed and technical complaint on the apparent grounds that it did not contain a short and plain statement of the facts. This rule prescribes the minimum information that a pleading must contain; it does not require that a complaint contain only a "short and plain statement." Holley v. Burroughs Wellcome Co., 74 N.C. App. 736, 330 S.E.2d 228 (1985), aff'd, 318 N.C. 352, 348 S.E.2d 772 (1986).

Which Must Be More Than a General Statement. - Even construing pleadings liberally, the "short and plain statement of the claim" required by subsection (a)(1) requires more than a general statement that a notice for relief has been filed pursuant to some statute. Baumann v. Smith, 41 N.C. App. 223, 254 S.E.2d 627, rev'd on other grounds, 298 N.C. 778, 260 S.E.2d 626 (1979).

While this rule does not require detailed fact pleading, nevertheless it does require a certain degree of specificity. It is not enough to indicate merely that the plaintiff has a grievance, but sufficient detail must be given so that the defendant and the court can obtain a fair idea of what the plaintiff is complaining about, and can see that there is some basis for recovery. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

Mere assertion of a grievance is insufficient to state a claim upon which relief can be granted. Some degree of factual particularity is required. The statement of a claim for relief must satisfy the requirements of the substantive law which give rise to the pleadings. Alamance County v. North Carolina Dep't of Human Resources, 58 N.C. App. 748, 294 S.E.2d 377 (1982).

Language of a letter attached to pleadings controlled over plaintiff's allegations and refuted his argument that an exchange of properties contemplated by an interlocal agreement was hastily arranged; therefore the claim failed to overcome the presumption of legality afforded to acts by public officials. The allegations were grievances, rather than allegations sufficient to demonstrate bad faith circumvention of the statutory requirements of G.S. 160A-266. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

Claim for relief and basis for defense must still satisfy requirements of substantive law which give rise to the pleadings, and no amount of liberalization should seduce the pleader into failing to state enough to give the substantive elements of his claim or of his defense. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

Despite the liberal nature of the concept of notice pleading, a complaint must nonetheless state enough to give the substantial elements of at least some legally recognized claim or it is subject to dismissal under G.S. 1A-1, Rule 12(b)(6). Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979).

Damages Governed by Evidence Presented. - There is a longstanding rule that damages in this state are governed by the evidence presented rather than the claim made for relief; the fact that the complaint contained a much lower figure than the amount awarded did not mean that the trial judge abused his discretion. Lovell v. Nationwide Mut. Ins. Co., 108 N.C. App. 416, 424 S.E.2d 181, aff'd in part; discretionary review improvidently granted in part, 334 N.C. 682, 435 S.E.2d 71 (1993).

Inclusion of Statute Authorizing Measure of Damages Not Necessary. - This rule requires only that a pleading contain "[a] demand for judgment for the relief to which [the party] deems himself entitled." This language does not necessitate including the specific statute authorizing a particular measure of damages. Atkins v. Mitchell, 91 N.C. App. 730, 373 S.E.2d 152 (1988).

In an action by the seller of securities under a contract for sale to recover the purchase price of securities not accepted by the buyer, sellers' failure to specifically cite G.S. 25-8-107 in their complaint did not foreclose them from seeking the contract price remedy nor limit them to recovering only the more traditional measure of the difference between fair market value and unpaid contract price. Atkins v. Mitchell, 91 N.C. App. 730, 373 S.E.2d 152 (1988).

Where a petition requested relief not authorized by statute, the petition stated a defective claim in that it requested relief the court was powerless to grant regardless of what facts could be proved, and thus a motion to dismiss was properly granted. Forrester v. Garrett, 280 N.C. 117, 184 S.E.2d 858 (1971).

"Ultimate" and "Evidentiary" Facts No Longer Distinguished. - One of the objectives sought to be attained by enactment of subsection (a)(1) of this rule was to eliminate the sometimes troublesome and often sterile discussion as to whether a particular allegation states an "ultimate" fact or an "evidentiary" fact or conclusion of law. Hoover v. Hoover, 9 N.C. App. 310, 176 S.E.2d 10 (1970).

Allegations must be liberally construed. Gore v. George J. Ball, Inc., 279 N.C. 192, 182 S.E.2d 389 (1971).

Pleadings must be liberally construed to do substantial justice, and must be fatally defective before they may be rejected as insufficient. Smith v. North Carolina Farm Bureau Mut. Ins. Co., 84 N.C. App. 120, 351 S.E.2d 774, aff'd, 321 N.C. 60, 361 S.E.2d 571 (1987).

Mere vagueness or lack of detail is not ground for a motion to dismiss. Such a deficiency should be attacked by a motion for a more definite statement. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

But vague and conclusory pleading is not encouraged or commended. Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976).

And the courts should not engage in judicial amending or rewriting of pleadings. FCX, Inc. v. Bailey, 14 N.C. App. 149, 187 S.E.2d 381 (1972).

Pleading of Fraud as Exception to Notice Pleading Approach. - G.S. 1A-1, Rule 9(b) is in contrast to the notice pleading approach adopted upon the enactment of section (a) of this rule and is essentially a codification of former case law of this State with respect to pleading fraud. Girard Trust Bank v. Belk, 41 N.C. App. 328, 255 S.E.2d 430, cert. denied, 298 N.C. 293, 259 S.E.2d 299 (1979).

The provision that pleadings are to be liberally construed under the notice theory of pleadings does not apply to fraud cases. In a fraud case the plaintiff must allege all material facts and circumstances constituting the fraud with particularity. Rosenthal v. Perkins, 42 N.C. App. 449, 257 S.E.2d 63 (1979).

For case comparing specificity requirements of subsection (a)(1) of this rule and corresponding federal and New York rules, see Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

Punitive Damages Need Not Be Specially Pled. - Where a pleading fairly apprises opposing parties of facts which will support an award of punitive damages, they may be recovered at trial without having been specially pleaded. Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 452 S.E.2d 233 (1994).

Allegations Sufficient to Give Rise to Punitive Damages Claim. - Where complaint alleged that defendant intentionally pointed a gun at the plaintiffs in an attempt to intimidate them, reached into plaintiff's vehicle and struggled with her, making contact with plaintiff infant and plaintiff mother in the process, the acts were intentional acts of the type giving rise to punitive damages. Holloway v. Wachovia Bank & Trust Co., 339 N.C. 338, 452 S.E.2d 233 (1994).

Mislabeled Claims. - In order to survive a motion to dismiss, the allegations of a mislabeled claim must reveal that plaintiff has properly stated a claim under a different legal theory. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979).

When the allegations in the complaint give sufficient notice of the wrong complained of, an incorrect choice of legal theory should not result in dismissal of the claim if the allegations are sufficient to state a claim under some legal theory. Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979).

Action on Contract Does Not Require Entire Writing. - The principle of pleading, well established under the former Code, that in an action on a written contract it is not mandatory to make the entire writing a part of the complaint, is not specifically set forth in the present Rules of Civil Procedure, but it is implicit in the requirement of this rule that the plaintiff 's claim for relief be set forth in "a short and plain statement of the claim" and that "each averment of a pleading shall be simple, concise, and direct." RGK, Inc. v. United States Fid. & Guar. Co., 292 N.C. 668, 235 S.E.2d 234 (1977).

To hold that in order to resist successfully a motion to dismiss, a materialman, who sues on a contractor's payment bond, must set forth in his complaint, by attachment or otherwise, the contract between the builder and the owner, including all plans and specifications for the construction of an apartment complex, would make a farce of the requirement of the present rule that the plaintiff state his claim in a "short and plain statement . . . simple, concise, and direct." RGK, Inc. v. United States Fid. & Guar. Co., 292 N.C. 668, 235 S.E.2d 234 (1977).

Illustrative Forms 3 and 4, § 1A-1, Rule 84, illustrate the sufficient form of a complaint for negligence; they contain much more than the corresponding federal forms, by requiring the pleader to allege the specific acts which constitute the defendant's negligence. Ormond v. Crampton, 16 N.C. App. 88, 191 S.E.2d 405, cert. denied, 282 N.C. 304, 192 S.E.2d 194 (1972).

A petition to condemn land for urban renewal is sufficient under the Rules of Civil Procedure to state a claim for relief where it gives notice of the nature and basis of the petitioners' claim and the type of case brought, and alleges generally the occurrence or performance of the required statutory conditions precedent. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

Sufficiency of Amended Complaint Where Demurrer to Original Complaint Sustained Under Prior Practice. - Where a demurrer to original complaint was sustained under former G.S. 1-122(2), and motion to dismiss the amended complaint for failure to state a claim for relief was filed after the effective date of the new Rules of Civil Procedure, the sufficiency of the amended complaint would be tested against the standard provided in subsection (a)(1) of this rule; the order sustaining the demurrer to the original complaint could not be res judicata when considering the question of the sufficiency of the amended complaint under the new rule. Hoover v. Hoover, 9 N.C. App. 310, 176 S.E.2d 10 (1970).

Purpose of Subsection (a)(2). - The General Assembly enacted subsection (a)(2) in response to a perceived crisis in the area of professional liability insurance. A study commission thereon recommended elimination of the ad damnum clause in professional malpractice cases to avoid adverse press attention prior to trial, and thus save reputations from the harm which can result from persons reading about huge malpractice suits and drawing their own conclusions based on the money demanded. Rather than eliminating the clause entirely, the General Assembly chose to follow the Wisconsin approach in which only a jurisdictional amount is named (e.g., the plaintiff claims in excess of $10,000 in damages). Jones v. Boyce, 60 N.C. App. 585, 299 S.E.2d 298 (1983); Harris v. Maready, 64 N.C. App. 1, 306 S.E.2d 799 (1983); Biggs v. Cumberland County Hosp. Sys., 69 N.C. App. 547, 317 S.E.2d 421 (1984).

Provision of subsection (a)(2) of this rule relating to professional malpractice actions was enacted to reduce the believed impact of pretrial publicity about medical malpractice cases, and for no other purpose. It has no bearing on the damages that a victim of medical negligence is entitled to recover, as the long-standing rule that damages in this State are governed by the evidence presented, rather than the claim made for relief, still abides except in cases of default. Nor does this provision curtail the rights that counsel in this State have long had to argue the facts in evidence and all reasonable inferences drawable therefrom. Biggs v. Cumberland County Hosp. Sys., 69 N.C. App. 547, 317 S.E.2d 421 (1984).

The General Assembly enacted subsection (a)(2) of this rule in response to what has been called a national medical malpractice crisis brought on by increasing numbers of malpractice suits and resultant sharply rising malpractice insurance rates. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

The North Carolina General Assembly enacted subsection (a)(2) of this rule to respond to a national medical malpractice crisis and the adverse publicity which sometimes accompanies frivolous or exorbitant claims. Richards & Assocs. v. Boney, 604 F. Supp. 1214 (E.D.N.C. 1985), overruled on other grounds, 148 F.R.D. 545 (E.D.N.C. 1993).

Applicability of Subdivision (a)(2). - Subdivision (a)(2) does not apply to diversity cases in U.S. District Court, and therefore could not provide a basis for dismissal of diversity personal injury action. Creech v. Denning, 148 F.R.D. 545 (E.D.N.C. 1993).

Penalty for Violation of Subsection (a)(1) of This Rule. - General Assembly thus must have intended application of the power of dismissal under the rule as a permissible sanction for violation of the G.S. 1A-1, N.C. R. Civ. P. 8(a)(2) proscription, and the same analysis applies to Rule 8(a)(1), as it also does not identify a particular sanction that may be imposed upon violation of its requirements. Plasman ex rel. Bolier & Co. v. Decca Furniture (USA), Inc., 257 N.C. App. 684, 811 S.E.2d 616 (2018).

Penalty for Violation of Subsection (a)(2) of This Rule. - Subsection (a)(2) of this rule prescribes no penalty for violation of its proscription against stating the demand for monetary relief. Absent application of the G.S. 1A-1, Rule 41(b) provision for dismissal for violation of the rules, litigants could ignore the proscription with impunity, thereby nullifying the express legislative purpose for its enactment. The General Assembly thus must have intended application of the G.S. 1A-1, Rule 41(b) power of dismissal as a permissible sanction for violation of the proscription of subsection (a)(2). Jones v. Boyce, 60 N.C. App. 585, 299 S.E.2d 298 (1983).

Although the North Carolina Supreme Court has never decided what sanctions are appropriate for parties who violate subsection (a)(2) of this rule, decision in other jurisdictions favor penalties less harsh than dismissal. Stokes v. Wilson & Redding Law Firm, 72 N.C. App. 107, 323 S.E.2d 470 (1984), cert. denied, 313 N.C. 612, 332 S.E.2d 83 (1985).

Dismissal for a violation of subsection (a)(2) of this rule is not always the best sanction available to the trial court and is certainly not the only sanction available. Although an action may be dismissed under G.S. 1A-1, Rule 41(b) for a plaintiff's failure to comply with subsection (a)(2), this extreme sanction is to be applied only when the trial court determines that less drastic sanctions will not suffice. Harris v. Maready, 311 N.C. 536, 319 S.E.2d 912 (1984).

A dismissal with prejudice, pursuant to G.S. 1A-1, Rule 41(b), is an available sanction for a plaintiff's violation of subsection (a)(2) of this rule. It is not, however, the only available sanction and should be applied only when the trial court determines that less drastic sanctions will not suffice. Miller v. Ferree, 84 N.C. App. 135, 351 S.E.2d 845 (1987).

The determination of whether to dismiss for a violation of subsection (a)(2) and whether such a dismissal should be with prejudice so as to bar a subsequent action involves the exercise of judicial discretion. Miller v. Ferree, 84 N.C. App. 135, 351 S.E.2d 845 (1987).

Dismissal May Not Be Imposed Mechanically. - Although dismissal under subsection (a)(2) of this rule is within the discretion of the trial court, when the rule is violated such sanction may not be imposed mechanically. Because the drastic sanction of dismissal is not always the best sanction available to the trial court and is certainly not the only sanction available, dismissal is to be applied only when the trial court determines that less drastic sanctions will not suffice. Foy v. Hunter, 106 N.C. App. 614, 418 S.E.2d 299 (1992).

As to use of the G.S. 1A-1, Rule 41(b) power of dismissal as a sanction for violation of provision of subsection (a)(2) of this rule as to pleading of malpractice damages, see Schell v. Coleman, 65 N.C. App. 91, 308 S.E.2d 662 (1983), appeal dismissed and cert. denied, 311 N.C. 763, 321 S.E.2d 145 (1984).

A motion for a more definite statement is the most purely dilatory of all the motions available under the Rules of Civil Procedure, and should not be granted so long as the pleading meets the requirements of this rule and/or G.S. 1A-1, Rule 9 and fairly notifies the opposing party of the nature of the claim. Fisher v. Lamm, 66 N.C. App. 249, 311 S.E.2d 61 (1984).

Effect of Denial. - Trial court properly allowed defendant to refute allegations in plaintiff's complaint that he had denied in his answer based on a lack of knowledge and information under G.S. 1A-1, N.C. R. Civ. P. 8(b) since the denial was expressly based on the fact that the complete medical records were not available for review at the time the answer was filed; the trial court did not abuse its discretion in holding that the denial was made in good faith. Manning v. Anagnost, 225 N.C. App. 576, 739 S.E.2d 859 (2013).

Complaint Held Insufficient. - Where complaint merely alleged that defendant treated plaintiff cruelly and offered indignities to her person, using the exact language of the alimony statute, but it did not refer to any transactions, occurrences or series of transactions or occurrences intended to be proved, nor mention any specific act of cruelty or indignity, such complaint did not give defendant fair notice of plaintiff 's claim, but was merely an "assertion of a grievance," and did not comply with section (a) of this rule. Manning v. Manning, 20 N.C. App. 149, 201 S.E.2d 46 (1973).

Board of education's resolution to authorize its chairman to approve an interlocal agreement was afforded a presumption of legality and correctness: (1) G.S. 160A-274 and G.S. 115C-518 authorized the board, upon such terms and conditions as it deemed wise, to exchange property owned by the board, based upon a determination that the property was no longer suitable and necessary for public school purposes; (2) the board determined that the replacement office space in the Government Center was more suitable for its needs; (3) this determination was adequate to meet the unnecessary or unsuitable requirement of G.S. 115C-518, (4) plaintiff failed to overcome the presumption of legality afforded public officials; therefore (5) plaintiff's complaint did not state a cause of action, as required by G.S. 1A-1, N.C. R. Civ. P. 8(a), for which relief could be granted. Reese v. Charlotte-Mecklenburg Bd. of Educ. & Mecklenburg, 196 N.C. App. 539, 676 S.E.2d 481 (2009).

Dismissal of a bank's complaint, for failure to state a claim, was proper because to enforce a promissory note, the bank had to allege facts sufficiently particular to indicate the bank's right to enforce the instrument, but the bank's complaint was missing this essential element. First Fed. Bank v. Aldridge, 230 N.C. App. 187, 749 S.E.2d 289 (2013).

Complaint Held Sufficient. - Complaint was sufficient where it gave notice of the nature and basis of plaintiff 's claim and the type of case brought and alleged that a lease agreement was entered into by the parties and subsequently breached by nonpayment of rent. Luther v. Hauser, 24 N.C. App. 71, 210 S.E.2d 218 (1974).

While the allegation in a malpractice claim that the defendant-physician's conduct "amounted to a reckless and wanton disregard of and indifference to the rights and safety of " the plaintiff-patient mentioned no particular instance of aggravated conduct, it was sufficient to put the defendant on notice of a punitive damage claim, to provide an understanding of the nature and basis of the claim, and to allow him to prepare his defense. Paris v. Kreitz, 75 N.C. App. 365, 331 S.E.2d 234, cert. denied, 315 N.C. 185, 337 S.E.2d 858 (1985).

Plaintiff sufficiently set out his claim against hospital for medical malpractice where he alleged that under the direction of his doctors, agents or employees of the hospital anesthetized him, that immediately after the surgery he noticed numbness in his left hand, later diagnosed as ulnar neuropathy, and that this condition was the direct and proximate result of the negligent procedures employed in anesthetizing him and immobilizing him during his surgery. Fournier v. Haywood County Hosp., 95 N.C. App. 652, 383 S.E.2d 227 (1989).

Complaint's allegations that a doctor improperly allowed access to and exposure of a patient's medical records by third parties sufficiently stated a claim for negligent infliction of emotional distress, and dismissal of the claim against the doctor was error. Acosta v. Byrum, 180 N.C. App. 562, 638 S.E.2d 246 (2006).

Failure to Comply with Subsection (a)(2) in Federal Case Transferred to This State. - Where malpractice action was commenced in Virginia and was transferred intact, the action would not be dismissed because the complaint failed to comply with subsection (a)(2) of this rule, as since the action was commenced in Virginia, there was no foreseeable need at that time to comply with this State's pleading rules. Porter v. Groat, 713 F. Supp. 893 (M.D.N.C. 1989).

Responsive Letter Deemed Answer. - A letter, or any document, that is filed with the court and substantively responds to a complaint may constitute an answer, notwithstanding its failure to comply with all of the technical requirements of the Rules of Civil Procedure. Brown v. American Messenger Servs., Inc., 129 N.C. App. 207, 498 S.E.2d 384 (1998), cert. denied, 348 N.C. 692, 511 S.E.2d 644 (1998).

Notice Theory Does Not Necessarily Require Full-Blown Trial. - The notice theory of pleading does not necessarily mean that there must be a full-blown trial. Utilizing the facility of pretrial discovery, the real facts can be ascertained, and by motion for summary judgment (or other suitable device) the trial court can determine whether as a matter of law there is any right of recovery on those facts. Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161 (1970).

Methods for Obtaining Facts More Specifically. - If, for purposes of preparing a defense, a defendant wishes to know more specifically than the complaint alleges exactly what facts plaintiffs intend to rely upon, tools, such as discovery proceedings under G.S. 1A-1, Rule 26 or a motion for more definite statement under G.S. 1A-1, Rule 12(e), are available. Nolan v. Boulware, 21 N.C. App. 347, 204 S.E.2d 701, cert. denied, 285 N.C. 590, 206 S.E.2d 863 (1974).

Once a complaint gives general notice of the matter being pleaded, the defendant must rely on other procedures, such as discovery, to further define the issues and prepare for trial. Smith v. North Carolina Farm Bureau Mut. Ins. Co., 84 N.C. App. 120, 351 S.E.2d 774, aff'd, 321 N.C. 60, 361 S.E.2d 571 (1987).

Plaintiff's original complaint held to have given notice of amended claim. Pyco Supply Co. v. American Centennial Ins. Co., 321 N.C. 435, 364 S.E.2d 380 (1988).

Mislabeled Claims. - The fact that plaintiff's claim is mislabeled in his complaint will not, in and of itself, prove fatal to the action, if critical facts are sufficiently pled in the body of the complaint that will give the adverse party notice of the assertions against him. Buchanan v. Hunter Douglas, Inc., 87 N.C. App. 84, 359 S.E.2d 271, cert. denied, 321 N.C. 296, 362 S.E.2d 779 (1987).

Disability Need Not Be Pleaded. - Plaintiff was not required to plead mental disability in avoidance of the affirmative defense of statute of limitations. Dunkley v. Shoemate, 121 N.C. App. 360, 465 S.E.2d 319 (1996).

Requests for Monetary Relief. - A request for monetary relief sought must be served, and the request must also be filed with the court unless it can be shown to be a discovery document of the type specifically excepted in Rule 5(d). Cottle v. Thompson, 123 N.C. App. 147, 472 S.E.2d 189 (1996).

Trial court erred in dismissing plaintiff's action for failing to file a statement of monetary relief sought where no request for a statement of monetary relief sought was ever filed with the court. Cottle v. Thompson, 123 N.C. App. 147, 472 S.E.2d 189 (1996).

A request for a statement of monetary relief sought cannot be considered a discovery document of the type specifically excepted in Rule 5(d). Cottle v. Thompson, 123 N.C. App. 147, 472 S.E.2d 189 (1996).

Pleading inadequate on reckless driving to support domestic violence. - Trial court erred in admitting testimony on reckless driving and finding this ground as a basis for the court's conclusion that defendant-husband committed domestic violence. Martin v. Martin, - N.C. App. - , 832 S.E.2d 191 (2019).

Attachments to Complaint Should Have Been Considered. - The trial court erred in failing to consider several pages of attachments to pro se plaintiff's complaint seeking a domestic violence protection order where the attachments were included with the filed complaint, the purpose of each attachment was obvious by the numbers on the attached pages, and defendant was served with the entire complaint, including the attached pages. Quackenbush v. Groat, - N.C. App. - , 844 S.E.2d 26 (2020).

III. AFFIRMATIVE DEFENSES.

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Section (c) of this rule applies only to responsive pleadings. Meachan v. Montgomery County Bd. of Educ., 47 N.C. App. 271, 267 S.E.2d 349 (1980).

Affirmative Defense Defined. - A defense which introduces new matter in an attempt to avoid defendant's counterclaim, regardless of the truth or falsity of the allegations in the counterclaim, is an affirmative defense. Roberts v. Heffner, 51 N.C. App. 646, 277 S.E.2d 446 (1981).

Requirements for Pleading Affirmative Defense. - The language in section (a), dealing with general pleading, and that in section (c), dealing with pleading affirmative defenses, are largely identical. The requirements for pleading an affirmative defense are no more stringent than those for pleading a cause of action. Bell v. Traders & Mechanics Ins. Co., 16 N.C. App. 591, 192 S.E.2d 711 (1972).

When an injured party sued a rural fire department and one of its firemen for injuries he received from one of the department's vehicles after the department responded to a fire in the injured party's neighborhood, the department and the fireman adequately pled the affirmative defense of immunity, under G.S. 58-82-5, in both their answer and their motion for summary judgment to satisfy the requirements of G.S. 1A-1, N.C. R. Civ. P. 8(c) and provide the injured party with notice of this defense. Luhmann v. Hoenig, 161 N.C. App. 452, 588 S.E.2d 550 (2003).

Failure to plead an affirmative defense ordinarily results in waiver thereof. The parties may, however, still try the issue by express or implied consent. Nationwide Mut. Ins. Co. v. Edwards, 67 N.C. App. 1, 312 S.E.2d 656, rev'd on other grounds, 311 N.C. 170, 316 S.E.2d 298 (1984); Alston v. Monk, 92 N.C. App. 59, 373 S.E.2d 463 (1988), cert. denied, 324 N.C. 246, 378 S.E.2d 420 (1989); Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36 (1989).

Defendants waived the affirmative defense of estoppel at summary judgment by failing to affirmatively assert the defense of estoppel in either their original answer or their amended answer. HSI N.C. LLC v. Diversified Fire Prot. of Wilmington, Inc., 169 N.C. App. 767, 611 S.E.2d 224 (2005).

Where a nursing home did not plead the affirmative defense of estoppel, the nursing home could not argue the issue on appeal. Munn v. Haymount Rehab. & Nursing Ctr., Inc., 208 N.C. App. 632, 704 S.E.2d 290 (2010).

Because defendants raised the defense of lack of notice of the foreclosure proceeding for the first time in their memorandum of law opposing plaintiff's motion for judgment on the pleadings, filed approximately 15 months after their answer and 6 months after their amended answer, it was employed as an affirmative defense and should have been affirmatively pled and defendants waived the defense by failing to plead it in their answer. Home Realty Co. & Ins. Agency, Inc. v. Red Fox Country Club Owners Ass'n, Inc., - N.C. App. - , - S.E.2d - (Nov. 17, 2020).

However, failure to plead arbitration as an affirmative defense pursuant to this section did not result in a waiver of the right later in the proceedings. Smith v. Young Moving & Storage, Inc., 141 N.C. App. 469, 540 S.E.2d 383 (2000), aff'd, 353 N.C. 521, 546 S.E.2d 87 (2001).

Failure to File an Answer Barred Affirmative Defenses. - Because a party failed to answer an amended third-party complaint, it was barred from raising affirmative defenses. Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162 (2012), review denied, 743 S.E.2d 189, 2013 N.C. LEXIS 531 (2013).

Failure to Plead Barred Issue on Appeal. - Defendants' failure to plead plaintiffs' contributory negligence case was a bar to this issue being raised on appeal. Forbes v. Par Ten Group, Inc., 99 N.C. App. 587, 394 S.E.2d 643 (1990), discretionary review denied, 99 N.C. 587, 402 S.E.2d 824 (1991).

Failure to Plead Res Judicata. - The failure of the defendant to plead res judicata is not a bar to that issue being raised at hearing on summary judgment. County of Rutherford ex rel. Child Support Enforcement Agency ex rel. Hedrick v. Whitener, 100 N.C. App. 70, 394 S.E.2d 263 (1990).

Consenting to claim splitting does not constitute waiver of defense of collateral estoppel under Bockweg or Howerton . Youse v. Duke Energy Corp., 171 N.C. App. 187, 614 S.E.2d 396 (2005).

Illegality is an affirmative defense under section (c) of this rule, and the burden of proving illegality is on the party who pleads it. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973); Collins v. Davis, 68 N.C. App. 588, 315 S.E.2d 759, aff'd, 312 N.C. 324, 321 S.E.2d 892 (1984).

As Is Contributory Negligence. - Contributory negligence is an affirmative defense, and the burden of proof on a contributory negligence issue rests on defendant. Clary v. Alexander County Bd. of Educ., 286 N.C. 525, 212 S.E.2d 160 (1975).

And Misconduct in Divorce Action. - The burden of pleading, as well as establishing, the affirmative defense of misconduct in a divorce action is on the defendant. Gray v. Gray, 16 N.C. App. 730, 193 S.E.2d 492 (1972).

As Well as Laches. - Laches is an affirmative defense which must be pleaded, and the party pleading it bears the burden of proof. Young v. Young, 43 N.C. App. 419, 259 S.E.2d 348 (1979); Larsen v. Sedberry, 54 N.C. App. 166, 282 S.E.2d 551 (1981), cert. denied, 304 N.C. 728, 288 S.E.2d 381 (1982).

Laches is an affirmative defense which must be specifically pleaded by answer. Bertie-Hertford Child Support Enforcement Agency v. Barnes, 80 N.C. App. 552, 342 S.E.2d 579 (1986).

Payment is an affirmative defense, and as such it must be pleaded by the party asserting it. The general rule is that the burden of showing payment must be assumed by the party interposing it. Shaw v. Shaw, 63 N.C. App. 775, 306 S.E.2d 506 (1983).

Payment is an affirmative defense which must be established by the party claiming its protection. Where creditor's evidence establishes an existing indebtedness and nonpayment, and debtor offers no competent evidence in support of his defense of payment, summary judgment or directed verdict for the creditor is properly granted. Murphrey v. Winslow, 70 N.C. App. 10, 318 S.E.2d 849, cert. denied as to additional issues, 312 N.C. 495, 322 S.E.2d 558 (1984).

Statute of Frauds. - To support a claim for breach of a lease, a plaintiff must allege sufficient facts to show the existence of a valid contract and breach of the terms of that contract. However, where a claim implicates the enforceability of a contract, rather than its underlying validity, a motion to dismiss or for judgment on the pleadings may not be warranted - for example, in cases where one party attempts to use the North Carolina statute of frauds, G.S. 22-2, as an affirmative defense pursuant to G.S. 1A-1, N.C. R. Civ. P. 8(c). Walter v. Freeway Foods, Inc. (In re Freeway Foods of Greensboro, Inc.), 467 B.R. 853 (Bankr. M.D.N.C. 2012).

Pleading Held to Give Sufficient Notice to Putative Husband. - It was apparent that the averments of a putative wife pled in her answer sufficiently placed the putative husband on notice that she intended to put forth evidence that the putative husband should be estopped from asserting the invalidity of the marriage. Hurston v. Hurston, 179 N.C. App. 809, 635 S.E.2d 451 (2006).

Sudden Emergency. - Defendants failed to meet the requirement of section (c) of this rule when they failed to set forth affirmatively sudden emergency as an avoidance or affirmative defense. Hinson v. Brown, 80 N.C. App. 661, 343 S.E.2d 284, appeal dismissed and cert. denied, 318 N.C. 282, 348 S.E.2d 138 (1986).

Ordinarily waiver and estoppel must be pleaded as affirmative defenses. Stuart v. United States Fire Ins. Co., 18 N.C. App. 518, 197 S.E.2d 250 (1973).

Waiver, the voluntary relinquishment of a known right, is an affirmative defense which a defendant must plead and which he has the burden of proving. Rose v. Vulcan Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973).

A defense based on waiver or release is an affirmative defense, and therefore the defendant bears the burden of proof. Lyon v. Shelter Resources Corp., 40 N.C. App. 557, 253 S.E.2d 277 (1979).

Waiver and estoppel are affirmative defenses which must be pleaded with certainty and particularity and established by the greater weight of the evidence. Duke Univ. v. St. Paul Mercury Ins. Co., 95 N.C. App. 663, 384 S.E.2d 36 (1989).

The doctrine of equitable estoppel did not bar an action by the Attorney General against finance companies who neither participated in deceptive practices of defendant grocery chain nor were put on notice that the Attorney General was investigating the defendant, from whom they purchased disputed retail installment sales contracts, for possible violations of Chapter 75, where they failed to affirmatively plead estoppel as required by this section, and where the delay before the action was filed was attributed to the extensive investigation undertaken by the Consumer Protection Division of the Attorney General's Office, the efforts to obtain information from defendant grocery chain, and intensive efforts to arrive at a resolution; furthermore, estoppel does not normally operate to bar the actions of the State or its agencies and arises only "if such an estoppel will not impair the exercise of the governmental powers of the county." State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 535 S.E.2d 84 (2000).

Contributory Negligence Sufficiently Pleaded. - Where defendant in her answer specifically alleged contributory negligence and referred to the actions which constituted the alleged contributory negligence, plaintiff was therefore put on notice that defendant would try to prove that plaintiff could not recover on those grounds. Watkins v. Hellings, 83 N.C. App. 430, 350 S.E.2d 590 (1986), rev'd on other grounds, 321 N.C. 78, 361 S.E.2d 568 (1987).

Where the parties' pleadings were sufficient to give notice of all theories, claims and facts sought to be proven by each party, the trial court did not err in submitting the issue of contributory negligence to the jury. Wentz v. Unifi, Inc., 89 N.C. App. 33, 365 S.E.2d 198, cert. denied, 322 N.C. 610, 370 S.E.2d 257 (1988).

Plaintiff Failed to Carry Burden of Proof on Contributory Negligence. - Store owners' summary judgment motion was denied because they failed to carry their burden of proving, in accordance with N.C. R. Civ. P. 8(c), that a patron was contributorily negligent in not looking at the floor while he was walking where (1) a tote bag that was left in a store aisle was known by an employee to have been left there; (2) the patron had no knowledge of the tote; (3) the tote was not visible when rounding the corner of the aisle; and (4) the patron was trying to avoid bumping into other customers, rather than looking at the floor. Allen v. Crown Cent. Petroleum Corp., 352 F. Supp. 2d 629 (M.D.N.C. 2005).

On an affirmative defense, the burden of proof lies with the defendant. Price v. Conley, 21 N.C. App. 326, 204 S.E.2d 178 (1974).

When not raised by the pleadings, the issue of usury may still be tried if raised by express or implied consent of the parties at trial. Wallace Men's Wear, Inc. v. Harris, 28 N.C. App. 153, 220 S.E.2d 390 (1975), cert. denied, 289 N.C. 298, 222 S.E.2d 703 (1976).

Although defendants failed to plead the affirmative defense of judicial estoppel, as required under G.S. 1A-1, N.C. R. Civ. P. 8, both parties argued extensively and specifically for and against the application of the doctrine at a hearing on plaintiffs' motion for summary judgment and plaintiffs made no objection to the consideration of judicial estoppel on the grounds that it was not included in defendants' pleadings. Therefore, by the implied consent of the parties, the trial court properly considered the doctrine of judicial estoppel. T-Wol Acquisition Co. v. ECDG South, LLC, 220 N.C. App. 189, 725 S.E.2d 605 (2012).

Exclusion of evidence on the ground that an affirmative defense was not specifically pleaded may be properly raised at trial. Cooke v. Cooke, 34 N.C. App. 124, 237 S.E.2d 323, cert. denied, 293 N.C. 740, 241 S.E.2d 513 (1977).

Where a defendant does not raise an affirmative defense in his pleadings or in the trial, he cannot present it on appeal. Delp v. Delp, 53 N.C. App. 72, 280 S.E.2d 27, cert. denied, 304 N.C. 194, 285 S.E.2d 97 (1981).

Where defendant did not raise the defense of the statute of frauds, one of the affirmative defenses which must be pleaded, in his pleadings or in the trial, he could not present it on appeal. Grissett v. Ward, 10 N.C. App. 685, 179 S.E.2d 867 (1971).

A defendant may not take advantage of the provisions of the statute of frauds by a motion to dismiss for failure to state a claim upon which relief could be granted, which must be pleaded as an affirmative defense. Green v. Harbour, 113 N.C. App. 280, 437 S.E.2d 719 (1993).

Pleading of Affirmative Defense Not Required. - Because a husband neither disputed a property contract nor brought any new claim of his own, it would not have been appropriate for the wife to specifically plead an affirmative defense under G.S. 1A-1, N.C. R. Civ. P. 8(c); accordingly, the property contract was improperly disregarded by the trial court. Street v. Street, 191 N.C. App. 815, 664 S.E.2d 69 (2008).

Waiver. - Where neither the defendants' original nor amended answer included an affirmative defense based upon G.S. 39-13.6, they waived this defense by failing to affirmatively assert this defense. Purchase Nursery, Inc. v. Edgerton, 153 N.C. App. 156, 568 S.E.2d 904 (2002).

Bank and its subsidiary waived the defense of federal preemption because they did not raise the defense in their answer, and they also did not raise the defense in their motions for summary judgment; instead, they raised the defense for the first time in their memorandum in response to the borrowers' motion for partial summary judgment, which was filed after the bank and its subsidiary filed their motions for summary judgment. Richardson v. Bank of Am., N.A., 182 N.C. App. 531, 643 S.E.2d 410 (2007), petition allowed as to additional issues 361 N.C. 569, 650 S.E.2d 439 (2007).

Failure to Affirmatively Plead Defenses of Consideration and Statute of Frauds. - In an action to recover damages for breach of contract for the sale of land and construction of a house thereon, where defendants failed to affirmatively plead in their answer the defenses of consideration and the statute of frauds, defendants thereby waived their right to assert these defenses. Smith v. Hudson, 48 N.C. App. 347, 269 S.E.2d 172 (1980).

Complaint Sufficient to Put Defendants on Notice of a Contract. - Complaint alleging, that there was an express contract between plaintiff and defendants for payment of funeral expenses was sufficient to put defendants on notice of a contract; therefore, where defendants did not specifically plead the affirmative defense of the statute of frauds as required by G.S. 1A-1, Rule 8(c), it would not be available as a defense to the contract. Parrish Funeral Home v. Pittman, 104 N.C. App. 268, 409 S.E.2d 327 (1991).

Amendment of Complaint. - Order allowing estates to amend their complaint in a medical malpractice suit was not immediately appealable where the issues of a hospital's claim that, without immediate review, it lost the right to avoid trial altogether by (1) raising the statute of limitations, (2) raising "estoppel by laches" as an affirmative defense, or (3) having the amended complaint dismissed for failure to comply with G.S. 1A-1, N.C. R. Civ. P. 9(j), were not brought before the trial court, and no substantial right was lost by the failure to allow immediate review; the estates were also entitled to sanctions against the hospital. Estate of Spell v. Ghanem, 175 N.C. App. 191, 622 S.E.2d 725 (2005).

Failure to Cite Statutory Statute of Limitations Provision. - Failure to plead G.S. 1-52(16) by precise number and subdivision is not fatal under subsection (c) of this Rule. Bonestell v. North Topsail Shores Condominiums, Inc., 103 N.C. App. 219, 405 S.E.2d 222 (1991).

Burden on Plaintiff When Statute of Limitations Is Pleaded. - North Carolina, apparently alone among American jurisdictions, continues to adhere to the rule that once the statute of limitations has been properly pleaded in defense the burden of proof shifts to the plaintiff to show that the action was filed within the statutory period. This anomalous rule survived the adoption of the Rules of Civil Procedure, which specifically list the statute of limitations as an affirmative defense and operate generally to place the burden of proof of affirmative defenses on the party raising them. Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302 (1986).

Where the defense admits that the statute of limitations does not bar the claim, the question should be summarily treated (if at all) by the court, not the jury. Georgia-Pacific Corp. v. Bondurant, 81 N.C. App. 362, 344 S.E.2d 302 (1986).

Defenses Raised in Hearing on Summary Judgment Motion Deemed Part of Pleadings. - The nature of summary judgment procedure, coupled with the generally liberal rules relating to amendment of pleadings, requires that unpleaded affirmative defenses be deemed part of the pleadings where such defenses are raised in a hearing on a motion for summary judgment. Cooke v. Cooke, 34 N.C. App. 124, 237 S.E.2d 323, cert. denied, 293 N.C. 740, 241 S.E.2d 513 (1977); Barrett, Robert & Woods, Inc. v. Armi, 59 N.C. App. 134, 296 S.E.2d 10, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982); C.C. Walker Grading & Hauling, Inc. v. S.R.F. Mgt. Corp., 66 N.C. App. 170, 310 S.E.2d 615, rev'd on other grounds, 311 N.C. 170, 316 S.E.2d 298 (1984).

Debt collector sued by consumers showed that the collector was exempt from the definition of a collection agency in G.S. 58-70-15 because the collector showed that the collector was the type of bank subsidiary meant to be exempt under G.S. 58-70-15(c)(2); the collector was not estopped under G.S. 1A-1-8(c) from asserting this exemption because the collector did not assert the exemption in the collector's answer as unpleaded defenses, when raised by the evidence, were to be considered in resolving the collector's motion for summary judgment. Williams v. HomEq Servicing Corp., 184 N.C. App. 413, 646 S.E.2d 381 (2007).

And May Be Heard for First Time on Motion for Summary Judgment. - Unpleaded affirmative defenses may be heard for the first time on motion for summary judgment, even though not asserted in the answer, at least where both parties are aware of the defense. Dickens v. Puryear, 45 N.C. App. 696, 263 S.E.2d 856 (1980), rev'd on other grounds, 302 N.C. 437, 276 S.E.2d 325 (1981).

For the purpose of ruling on a motion for summary judgment, an affirmative defense may be raised for the first time by affidavit. Bassett Furn. Indus. of N.C. Inc. v. Griggs, 47 N.C. App. 104, 266 S.E.2d 702 (1980).

Unpled affirmative defenses may be heard for the first time on motion for summary judgment even though not asserted in the answer, at least where both parties are aware of the defense. Gillis v. Whitley's Disct. Auto Sales, Inc., 70 N.C. App. 270, 319 S.E.2d 661 (1984).

Raising of Affirmative Defense in Support of Summary Judgment Before Responsive Pleadings Due. - A party whose responsive pleading is not yet due may, by motion for summary judgment and in support of the motion, raise an affirmative defense to an asserted claim before he pleads responsively to the claim. Dickens v. Puryear, 302 N.C. 437, 276 S.E.2d 325 (1981).

Affirmative Defenses Deemed Denied. - Allegations of affirmative defenses were deemed denied or avoided, so normally a reply was not necessary to protect the plaintiff's rights; there was no inequity in the procedure used by the trial court in entering judgment on the pleadings in a lender's claim for a deficiency judgment against guarantors. If the lender believed a reply to the guarantors' affirmative defenses was necessary, the lender could have sought permission to file a reply to the affirmative defenses, and, in any event, the lender brought its defenses to the attention of the trial court by way of its response to the guarantors' motion, its trial brief, and its arguments before the trial court. Carolina Bank v. Chatham Station, Inc., 186 N.C. App. 424, 651 S.E.2d 386 (2007).

Failure to be properly licensed is an affirmative defense which ordinarily must be specifically pleaded. Barrett, Robert & Woods, Inc. v. Armi, 59 N.C. App. 134, 296 S.E.2d 10, cert. denied, 307 N.C. 269, 299 S.E.2d 214 (1982).

Defense of Consideration Waived. - Where defendant failed to plead or offer evidence on the defense of consideration advanced in good faith, defendant waived right to assert this defense. Arnette v. Morgan, 88 N.C. App. 458, 363 S.E.2d 678 (1988).

Failure to Plead Election of Remedies. - Defendant, who claimed that plaintiff was barred from recovery because plaintiff elected inconsistent remedies, could not introduce election of remedy theory for the first time on appeal, since the defense of inconsistent remedies is an affirmative defense, and defendant did not plead election of remedies or present that theory at trial. North Carolina Fed. Savs. & Loan Ass'n v. Ray, 95 N.C. App. 317, 382 S.E.2d 851 (1989).

Failure to Plead Good Faith Purchaser for Value. - Limited liability company (LLC) that purchased a mobile home at a tax sale waived its claim that a lienholder was not entitled to invalidate the sale because the LLC was a good faith purchaser for value by failing to raise that claim as an affirmative defense when it answered the lienholder's complaint. Oakwood Acceptance Corp., LLC v. Massengill, 162 N.C. App. 199, 590 S.E.2d 412 (2004).

Abatement Where Prior Action Pending in Appellate Division. - A prior action which is pending in the appellate division may serve as a prior action pending for the purpose of basing a judgment of abatement in a subsequent action between the same parties upon the same issues. Clark v. Craven Regional Medical Auth., 326 N.C. 15, 387 S.E.2d 168 (1990).

Assertion of Affirmative Defense on Appeal from Small Claims Court. - When a landlord successfully sued a tenant for summary ejectment in small claims court, and the tenant obtained a trial de novo in district court, the tenant did not waive its affirmative defense of estoppel by not pleading it in district court because, in small claims court, the only pleading was the complaint, and on appeal to district court, the district court judge could elect to try the case on the pleadings filed, so the tenant did not waive its affirmative defense. Don Setliff & Assocs. v. Subway Real Estate Corp., 178 N.C. App. 385, 631 S.E.2d 526 (2006).

Effect of an Entry of Default. - The effect of an entry of default is that the defendant against whom entry of default is made is deemed to have admitted the allegations in plaintiff's complaint and is prohibited from defending on the merits of the case. Spartan Leasing, Inc. v. Pollard, 101 N.C. App. 450, 400 S.E.2d 476 (1991).

Evidence of a fraudulent scheme on the part of plaintiff and her husband, submitted pursuant to this section, did not entitle the defendant to a directed verdict where the defendant in an alienation of affection case neither affirmatively pled, as required by this section, nor tried the case on the theory of fraud. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000), cert denied, 353 N.C. 398, 547 S.E.2d 431 (2001).

IV. EFFECT OF FAILURE TO DENY.

.

Averments in pleadings are admitted when not denied in a responsive pleading, if a responsive pleading is required. Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971).

Because defendant filed no answer in response to plaintiffs' complaint, defendant judicially admitted that the averments in the complaint were true. Bodie Island Beach Club Ass'n v. Wray, 215 N.C. App. 283, 716 S.E.2d 67 (2011).

Answer is a required responsive pleading, and denials are required to fairly meet the substance of the averments denied. In a client's legal malpractice case alleging that the lawyers failed to advise the client of use restrictions on land purchased by the client, the trial court's order dismissing the case as time-barred was affirmed, where the client had failed to specifically deny that he was notified of the land use restrictions approximately two months after closing on the purchase of the land, and over three years before filing the legal malpractice case. Bolton v. Crone, 162 N.C. App. 171, 589 S.E.2d 915 (2004).

Allegations in Complaint Supported Default Judgment. - Pursuant to G.S. 1A-1-8(d), when a contractor failed to answer a complaint by a passenger, seeking a declaratory judgment regarding workers' compensation coverage that was allegedly extended by the contractor to a subcontractor's employees, which included the passenger, the factual allegations stated in the complaint were deemed admitted and were adequate to support the trial court's grant of a default judgment in favor of the passenger. Lowery v. Campbell, 185 N.C. App. 659, 649 S.E.2d 453 (2007), aff'd, 363 N.C. 231, 657 S.E.2d 354 (2008).

Allegations Not Admitted Where Reply Not Required. - Plaintiff 's failure to file a reply to defendant's purported "counterclaim" did not operate as an admission of the facts alleged therein where defendant's pleading did nothing more than raise an affirmative defense to plaintiff 's cause of action, to which a reply was neither required nor permitted by G.S. 1A-1, Rule 7(a). Eubanks v. First Protection Life Ins. Co., 44 N.C. App. 224, 261 S.E.2d 28 (1979), cert. denied, 299 N.C. 735, 267 S.E.2d 661 (1980).

Where plaintiff was not required to plead matters in avoidance of affirmative defenses, he could not as a matter of right file a reply to plead such matters, and he was not required to seek leave to plead such matters. Thus, defendants' affirmative defense of release was deemed avoided or denied by section (d) of this rule and no further pleadings were required. Brown v. Lanier, 60 N.C. App. 575, 299 S.E.2d 279 (1983).

Trial court did not err in determining that the doctor's failure to file a reply to the amended counterclaims did not amount to admissions under G.S. 1A-1, N.C. R. Civ. P. 8(d), where the counterclaims merely reiterated the employer's argument that the doctor's employment agreement was an unenforceable contract due to fraud and material misrepresentation. Harper v. Vohra Wound Physicians of NY, - N.C. App. - , 841 S.E.2d 580 (2020).

Privilege Against Self-incrimination Applies at Pleading Stage. - A defendant may plead his privilege against self-incrimination in a civil action where the plaintiff asks for punitive damages, and the privilege applies to protect a party from self-incrimination at the pleading stage of an action. Byrd v. Hodges, 44 N.C. App. 509, 261 S.E.2d 269 (1980).

Thus, Allegations Not Admitted Where Privilege Asserted. - In an action to recover compensatory and punitive damages for alienation of affections and criminal conversation, where defendant refused to answer the allegations of plaintiff 's complaint, claiming his constitutional privilege against self-incrimination, the trial court erred in deeming the allegations as admitted pursuant to section (d). Byrd v. Hodges, 44 N.C. App. 509, 261 S.E.2d 269 (1980).

Allegations Deemed Denied in Divorce Case. - Despite the fact that the wife did not respond to allegations of marital misconduct and fault contained in the husband's counterclaim in the parties' divorce case, pursuant to G.S. 50-10(a), all of the allegations of the counterclaim were deemed denied. Phillips v. Phillips, 185 N.C. App. 238, 647 S.E.2d 481 (2007), aff'd, 362 N.C. 171, 655 S.E.2d 350 (2008).

Procedure at Trial Where Party Not Permitted to File Responsive Pleading. - A party who is not permitted to file a responsive pleading may meet the allegations at trial in any manner that would have been proper had a reply been allowed. Malloy v. Malloy, 33 N.C. App. 56, 234 S.E.2d 199 (1977).

Reply Not Required. - Where defendant's claim contending that all the property listed was marital property, though denominated a counterclaim, in effect did no more than deny plaintiff's allegations that only the property listed in the complaint was marital property, a reply was not required. Cornelius v. Cornelius, 87 N.C. App. 269, 360 S.E.2d 703 (1987).

Trial court erred in granting a wife's motion to dismiss a husband's alimony claim on the grounds that he failed to reply to the wife's counterclaims because the allegations set forth in the wife's counterclaims, and reiterated in a finding of fact in the trial court's order, were merely denials in affirmative form of the allegations of the complaint, and the trial court erred in deeming admitted the allegations in the wife's counterclaim that the husband was not a dependent spouse and that he was not a supporting spouse; a plaintiff is not required to re-allege those allegations in a complaint that have been "denied in the affirmative" by way of a counterclaim by a defendant. Crowley v. Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (2010), review denied, 364 N.C. 324, 700 S.E.2d 749, 2010 N.C. LEXIS 591 (2010).

Because there was no counterclaim for alimony in a wife's answer to a husband's complaint, but there were three specific counterclaims that incorporated by reference and re-alleged those portions of the answer that related to alimony, the wife did assert counterclaims to which a reply would generally be required; however, a plaintiff's failure to file a reply re-asserting allegations already made in the complaint in response to averments in a defendant's counterclaim, which do no more than present denials in affirmative form of the allegations of the complaint, does not amount to an admission pursuant to G.S. 1A-1, N.C. R. Civ. P. 8(d). Crowley v. Crowley, 203 N.C. App. 299, 691 S.E.2d 727 (2010), review denied, 364 N.C. 324, 700 S.E.2d 749, 2010 N.C. LEXIS 591 (2010).

There was no error in an instruction to the jury that defendant admitted a contract, where a paragraph of the complaint alleged the making of the contract and the terms thereof as contended by the plaintiff, and the answer stated that the paragraph was not denied and did not allege a different contract. Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168 (1972).

Even Though Defendant Admitted Factual Allegations, Plaintiff's Allegations Were Insufficient. - Denial of plaintiff's G.S 1A-1, N.C. R. Civ. P. 52(b) motion was proper as plaintiff was not entitled to specific performance of a separation agreement where: (1) the specific performance clause in the separation agreement did not negate plaintiff's burden of proving the equitable requirements for specific performance; (2) defendant did not offer any evidence at the hearing, and plaintiff had to prove defendant had the ability to perform; (3) even though defendant admitted plaintiff's factual allegations under G.S. 1A-1, N.C. R. Civ. P. 8(d), by not responding to her complaint, the complaint did not allege facts showing defendant's ability to perform; and (4) plaintiff acknowledged that defendant had recently declared bankruptcy. Reeder v. Carter, 226 N.C. App. 270, 740 S.E.2d 913 (2013).

V. ALTERNATIVE, HYPOTHETICAL AND INCONSISTENT STATEMENTS.

.

There is no requirement that all claims be legally consistent. Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986).

A party may allege and prove inconsistent or alternative theories without subjecting the case to directed verdict. Hall v. Mabe, 77 N.C. App. 758, 336 S.E.2d 427 (1985).

Use of disjunctive "or" in corporation's allegations that the corporations' president cashed, or replaced with a certified check, the subject checks either with no endorsement or being endorsed only by the president himself did not cause the complaint to violate subdivision (e)(1) of this rule or G.S. 1A-1, Rule 11(a) as subdivision (e)(1) permitted pleading in the alternative. Castle Worldwide, Inc. v. Southtrust Bank, 157 N.C. App. 518, 579 S.E.2d 478 (2003).

Defendant may plead alternative, inconsistent defenses, and need not make an election between the two defenses prior to trial. Alpar v. Weyerhaeuser Co., 20 N.C. App. 340, 201 S.E.2d 503, cert. denied, 285 N.C. 85, 203 S.E.2d 57 (1974).

Election of Remedies. - Where defendant sought equitable distribution and imposition of a constructive trust upon certain property in her husband's possession, doctrine of election of remedies would ban action for constructive trust only if a distribution had been made in the equitable distribution action and the constructive trust remedy was inconsistent with the equitable distribution remedy. Lamb v. Lamb, 92 N.C. App. 680, 375 S.E.2d 685 (1989).

On appeal from summary judgment, the record did not provide basis for determination of whether defendant's equitable distribution action would allow redress of injury complained of in her constructive trust proceeding, thus barring the constructive trust action under the doctrine of election of remedies; nonetheless, as the equitable distribution action had not been prosecuted to a final judgment, the trial court erred in entering summary judgment for the plaintiff and dismissing defendant's counterclaim for a constructive trust. Lamb v. Lamb, 92 N.C. App. 680, 375 S.E.2d 685 (1989).

Quantum Meruit. - It is not necessary to plead quantum meruit in the alternative unless the claim is based on the same subject matter as the express contract claim, since one cannot recover on both claims. Consequently, it is error to submit an alternative implied contract claim to the jury when an express contract has been proved. Catoe v. Helms Constr. & Concrete Co., 91 N.C. App. 492, 372 S.E.2d 331 (1988).

Where plaintiff, in the event that he could not prove breach of an express contract, sought the same amount in the alternative in quantum meruit, and succeeded in proving the existence of an express contract at trial, he could not then successfully assert on appeal that his implied contract claim should have been considered by the jury simply because his express contract claim yielded only nominal damages. Catoe v. Helms Constr. & Concrete Co., 91 N.C. App. 492, 372 S.E.2d 331 (1988).

In a case in which an agent and his company appealed a trial court's G.S. 1A-1, N.C. R. Civ. P. 12(b)(6), dismissal of their claims for quantum meruit, G.S. 1A-1, N.C. R. Civ. P. 8(a)(2), allowed the agent and his company to plead claims for breach of an express contract and for quantum meruit. Scheerer v. Fisher, 202 N.C. App. 99, 688 S.E.2d 472 (2010).

VI. DECISIONS UNDER PRIOR LAW.

.

Editor's Note. - The cases cited below were decided under former G.S. 1-151 and 1-159.

Common-law rule requiring every pleading to be construed against the pleader was materially modified by former G.S. 1-151. Sexton v. Farrington, 185 N.C. 339, 117 S.E. 172 (1923).

Liberal Construction of Pleadings with View to Substantial Justice. - Pleadings challenged by a demurrer are to be construed liberally with a view to substantial justice between the parties. Stamey v. Rutherfordton Elec. Membership Corp., 247 N.C. 640, 101 S.E.2d 814 (1958); Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968); Clemmons v. Life Ins. Co., 1 N.C. App. 215, 161 S.E.2d 55, aff'd, 274 N.C. 416, 163 S.E.2d 761 (1968).

The allegations of a pleading must be liberally construed for the purpose of determining their effect and with a view to substantial justice between the parties. Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18 (1964); Powell v. Powell, 271 N.C. 420, 156 S.E.2d 691 (1967).

In the construction of a pleading to determine whether or not the allegations meet the requirements laid down by the court, such allegations must be construed with a view to substantial justice between the parties. Kemp v. Funderburk, 224 N.C. 353, 30 S.E.2d 155 (1944).

The pleadings must be liberally construed, with a view to present the case upon its real merits. Lyon v. Atlantic Coast Line R.R., 165 N.C. 143, 81 S.E. 1 (1914).

Construction of Pleadings in Favor of Pleader. - Pleadings must be liberally construed, and every reasonable intendment and presumption must be in favor of the pleader. A pleading must be fatally defective before it will be rejected as insufficient. Corbett v. Hilton Lumber Co., 223 N.C. 704, 28 S.E.2d 250 (1943). See also, Sandlin v. Yancey, 224 N.C. 519, 31 S.E.2d 532 (1944); Ferrell v. Worthington, 226 N.C. 609, 39 S.E.2d 812 (1946); Winston v. Williams & McKeithan Lumber Co., 227 N.C. 339, 42 S.E.2d 218 (1947); McCampbell v. Valdese Bldg. & Loan Ass'n, 231 N.C. 647, 58 S.E.2d 617 (1950); Peoples Oil Co. v. Richardson, 271 N.C. 696, 157 S.E.2d 369 (1967).

The allegations of the complaint are to be liberally construed so as to give the plaintiff the benefit of every reasonable intendment in his favor. Clemmons v. Life Ins. Co., 274 N.C. 416, 163 S.E.2d 761 (1968).

The court is required to construe the complaint liberally with a view to substantial justice between the parties, and every reasonable intendment is to be made in favor of the pleader. Setser v. Cepco Dev. Corp., 3 N.C. App. 163, 164 S.E.2d 407 (1968); Joyner v. Woodard, 201 N.C. 315, 160 S.E. 288 (1931); Bailey v. Roberts, 208 N.C. 532, 181 S.E. 754 (1935); Leach v. Page, 211 N.C. 622, 191 S.E. 349 (1937); Anthony v. Knight, 211 N.C. 637, 191 S.E. 323 (1937); Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560, 11 S.E.2d 550 (1940).

Upon inquiry as to whether a complaint states a cause of action, it will be liberally construed, with every reasonable intendment therefrom in the plaintiff 's favor, however uncertain, defective, and redundant its allegations may be drawn. Elam v. Barnes, 110 N.C. 73, 14 S.E. 621 (1892); Foy v. Stephens, 168 N.C. 438, 84 S.E. 758 (1915); State ex rel. N.C. Corp. Comm'n v. Harnett County Trust Co., 192 N.C. 246, 134 S.E. 656 (1926); North Carolina Corp. Comm'n v. Citizens Bank & Trust Co., 193 N.C. 513, 137 S.E. 587 (1927); Seawell v. Chas. Cole & Co., 194 N.C. 546, 194 N.C. 1450a, 140 S.E. 85 (1927); Enloe v. Ragle, 195 N.C. 38, 141 S.E. 477 (1928); Presnell v. Beshears, 227 N.C. 279, 41 S.E.2d 835 (1947). See Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547 (1951).

A motion for judgment on the pleadings is not favored by the courts; pleadings alleged to state no cause of action or defense will be liberally construed in favor of the pleader. Edwards v. Edwards, 261 N.C. 445, 135 S.E.2d 18 (1964); Powell v. Powell, 271 N.C. 420, 156 S.E.2d 691 (1967).

Complaint Sufficient to State Cause of Action Sustained. - If the facts alleged are sufficient for a cause of action when liberally construed, however inartistically the complaint may have been drawn, it will be sustained. Renn v. Seaboard Air Line R.R., 170 N.C. 128, 86 S.E. 964 (1915), aff 'd, 241 U.S. 290, 36 S. Ct. 567, 60 L. Ed. 1006 (1916); Conrad v. Board of Educ., 190 N.C. 389, 130 S.E. 53 (1925). Same rule applies to an answer. Dixon v. Green, 178 N.C. 205, 100 S.E. 262 (1919); Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419 (1925). See also Farrell v. Thomas & Howard Co., 204 N.C. 631, 169 S.E. 224 (1933).

A complaint cannot be overthrown unless it be wholly insufficient. If in any portion of it, or to any extent, it presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, the pleading will stand, however inartistically it may have been drawn, or however uncertain, defective, or redundant may be its statements, for, contrary to the common-law rule, every reasonable intendment and presumption must be made in favor of the pleader. A complaint must be fatally defective before it will be rejected as insufficient. Fairbanks, Morse & Co. v. J.A. Murdock Co., 207 N.C. 348, 177 S.E. 122 (1934); Ramsey v. Nash Furn. Co., 209 N.C. 165, 183 S.E. 536 (1936); Cummings v. Dunning, 210 N.C. 156, 185 S.E. 653 (1936); State ex rel. Avery County v. Braswell, 215 N.C. 270, 1 S.E.2d 864 (1939); Vincent v. Powell, 215 N.C. 336, 1 S.E.2d 826 (1939); Dickensheets v. Taylor, 223 N.C. 570, 27 S.E.2d 618 (1943), citing Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560, 11 S.E.2d 550 (1940).

If a complaint merely alleges conclusions, it is demurrable. On the other hand, if in any portion of it or to any extent it presents facts sufficient to constitute a cause of action, the pleading will stand. Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968).

A pleading will be upheld if any part presents sufficient facts, or if such facts may be gathered from the whole pleading by a liberal and reasonable construction. Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419 (1925).

When it is apparent from the whole pleading that the complaint alleges a good cause of action, it will be sustained under the rule of liberal construction. Muse v. Ford Motor Co., 175 N.C. 466, 95 S.E. 900 (1918); Dixon v. Green, 178 N.C. 205, 100 S.E. 262 (1919).

There should be at least a substantial accuracy in the averments of pleadings, and a compliance therein with the essential rules of pleading so that the real issues may be evolved from the controversy. New Bern Banking & Trust Co. v. Duffy, 156 N.C. 83, 72 S.E. 96 (1911).

The complaint is construed to aver all the facts that can be implied by fair and reasonable intendment from the facts expressly stated. Steel v. Locke Cotton Mills Co., 231 N.C. 636, 58 S.E.2d 620 (1950).

But the court will not construe into a pleading that which it does not contain. Jones v. Jones Lewis Furn. Co., 222 N.C. 439, 23 S.E.2d 309 (1942).

The rule of liberal construction does not mean that a pleading shall be construed to say what it does not say, but that if it can be seen from its general scope that a party has a cause of action or defense, he will not be deprived thereof merely because he has not stated it with technical accuracy. Chesson v. Lynch, 186 N.C. 625, 120 S.E. 198 (1923).

The rule of liberal construction does not mean that the court shall supply the necessary allegations, nor is it intended thereby to repeal those rules of pleading which are essential to produce certainty of issues. Turner v. McKee, 137 N.C. 251, 49 S.E. 330 (1904). See also, Fairbanks, Morse & Co. v. J.A. Murdock Co., 207 N.C. 348, 177 S.E. 122 (1934).

While the appellate court must construe liberally the allegations of a challenged pleading, the appellate court is not permitted to read into it facts which it does not contain. Lane v. Griswold, 273 N.C. 1, 159 S.E.2d 338 (1968).

Liberal construction does not mean that the court is to read into the complaint allegations which it does not contain. Clemmons v. Life Ins. Co., 274 N.C. 416, 163 S.E.2d 761 (1968).

A complaint must be fatally defective before it will be rejected as insufficient. Givens v. Sellars, 273 N.C. 44, 159 S.E.2d 530 (1968).

Under the liberal construction rule, an answer must be fatally defective before it will be rejected as insufficient, and every reasonable intendment and presumption must be in favor of the pleader. Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369 (1939).

A demurrer will not be sustained unless the complaint is fatally and wholly defective. Clemmons v. Life Ins. Co., 1 N.C. App. 215, 161 S.E.2d 55, aff'd, 274 N.C. 416, 163 S.E.2d 761 (1968).

Construction of Inaccurate Language. - A plea that a cause of action did not "arise" within the time prescribed by the statute for the commencement of an action, while not strictly accurate, would be construed under the liberal system of pleading to mean that it did not "accrue" within that time. Stubbs v. Motz, 113 N.C. 458, 18 S.E. 387 (1893).

It is proper to strike repetitious allegations from the pleadings. Girard Trust Bank v. Easton, 3 N.C. App. 414, 165 S.E.2d 252 (1969).

New matter in the answer not relating to a counterclaim is deemed denied without a reply. Sullivan v. Johnson, 3 N.C. App. 581, 165 S.E.2d 507 (1969).

Conflict of Laws. - The rules of construction of pleadings are governed by the law of the state in which the cause is being litigated. McNinch v. American Trust Co., 183 N.C. 33, 110 S.E. 663 (1922), appeal dismissed, 261 U.S. 606, 43 S. Ct. 363, 67 L. Ed. 823, cert. denied, 261 U.S. 618, 43 S. Ct. 663, 67 L. Ed. 823 (1923); United States Bank Nat'l Ass'n v. Pinkney, 369 N.C. 723, 800 S.E.2d 412 (2017).

I. IN GENERAL.

This rule codifies established North Carolina law. Rodd v. W.H. King Drug Co., 30 N.C. App. 564, 228 S.E.2d 35 (1976).

The pleading with particularity required by section (b) of this rule is complemented by G.S. 1A-1, Rule 15(b). Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203 (1984).

Intent and knowledge may be averred generally. Carver v. Roberts, 78 N.C. App. 511, 337 S.E.2d 126 (1985).

When Complaint Is Sufficient. - Under our modern practice only claims for fraud, duress, libel and slander have to be pleaded with any particularity at all. In all other instances the complaint is sufficient if it gives the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved, showing that the pleader is entitled to relief. Newton v. Whitaker, 83 N.C. App. 112, 349 S.E.2d 333 (1986), aff'd, 319 N.C. 455, 355 S.E.2d 138 (1987).

Pleading of Private or Local Act by Title or Day of Ratification. - As a general rule, a court will not take judicial notice of a private or local act unless it is pleaded by reference to its title or the day of its ratification, even though the act is published among the public laws. But this rule is one of pleading, designed to prevent surprise, and should never be allowed to prevail when a statute which effectually settles the controversy has been formally brought to the attention of the court and all parties. Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971).

Improper Certification and Futile Amendment. - Case law does not stand for the proposition that the inclusion of an affirmative affidavit or date showing that the review took place before the statute of limitations expired will entitle a plaintiff to amend the plaintiff's certification or receive benefit of relation back. Vaughan v. Mashburn, - N.C. App. - , - S.E.2d - (June 21, 2016), review denied, 797 S.E.2d 4, 2017 N.C. LEXIS 139 (2017).

Pre-suit review complied with the rule but the certification language omitted the required assertion that all medical records were reviewed by the expert; given case law, the conclusion that an amendment would have been futile because the proposed amendment did not relate back to the filing date of plaintiff's original complaint, and the statute of limitations ran on May 3, 2015, was correct, and the denial of the motion to amend was proper. Vaughan v. Mashburn, - N.C. App. - , - S.E.2d - (June 21, 2016), review denied, 797 S.E.2d 4, 2017 N.C. LEXIS 139 (2017).

Applied in Beachboard v. Southern Ry., 16 N.C. App. 671, 193 S.E.2d 577 (1972); Brantley v. Dunstan, 17 N.C. App. 19, 193 S.E.2d 423 (1972); Ragsdale v. Kennedy, 286 N.C. 130, 209 S.E.2d 494 (1974); Britt v. Britt, 16 N.C. App. 132, 215 S.E.2d 172 (1975); N.C. Monroe Constr. Co. v. Coan, 30 N.C. App. 731, 228 S.E.2d 497 (1976); F.E. Davis Plumbing Co. v. Ingleside W. Assocs., 37 N.C. App. 149, 245 S.E.2d 555 (1978); Best v. Perry, 41 N.C. App. 107, 254 S.E.2d 281 (1979); Eubanks v. First Protection Life Ins. Co., 44 N.C. App. 224, 261 S.E.2d 28 (1979); Carolina Wire & Cable, Inc. v. Finnican, 46 N.C. App. 87, 264 S.E.2d 138 (1980); Lee v. Regan, 47 N.C. App. 544, 267 S.E.2d 909 (1980); Cone v. Cone, 50 N.C. App. 343, 274 S.E.2d 341 (1981); Bond Park Truck Serv. Inc. v. Hill, 53 N.C. App. 443, 281 S.E.2d 61 (1981); Harris v. Bridges, 59 N.C. App. 195, 296 S.E.2d 299 (1982); Plemmons v. City of Gastonia, 62 N.C. App. 470, 302 S.E.2d 905 (1983); Highlands Tp. Taxpayers Ass'n v. Highlands Tp. Taxpayers Ass'n, 62 N.C. App. 537, 303 S.E.2d 234 (1983); Bishop v. Reinhold, 66 N.C. App. 379, 311 S.E.2d 298 (1984); Dellinger v. Lamb, 79 N.C. App. 404, 339 S.E.2d 480 (1986); Duke Power Co. v. Daniels, 86 N.C. App. 469, 358 S.E.2d 87 (1987); Moore v. Wykle, 107 N.C. App. 120, 419 S.E.2d 164, cert. denied, 332 N.C. 666, 424 S.E.2d 405 (1992); Sharp v. Teague, 113 N.C. App. 589, 439 S.E.2d 792 (1994); Robinson v. Entwistle, 132 N.C. App. 519, 512 S.E.2d 438 (1999); Becker v. Graber Builders, Inc., 149 N.C. App. 787, 561 S.E.2d 905 (2002); Hudgins v. Wagoner, 204 N.C. App. 480, 694 S.E.2d 436 (2010), review denied 706 S.E.2d 250, 2011 N.C. LEXIS 136 (2011); Carlton v. Melvin, 205 N.C. App. 690, 697 S.E.2d 360 (2010); Watson v. Price, 211 N.C. App. 369, 712 S.E.2d 154 (2011), review denied, 718 S.E.2d 398, 2011 N.C. LEXIS 953 (2011); Peter v. Vullo, 234 N.C. App. 150, 758 S.E.2d 431 (2014).

Cited in Seraj v. Duberman, 248 N.C. App. 589, 789 S.E.2d 551 (2016).

Brewer v. Harris, 279 N.C. 288, 182 S.E.2d 345 (1971); Estate of Loftin v. Loftin, 285 N.C. 717, 208 S.E.2d 670 (1974); Smith v. State, 289 N.C. 303, 222 S.E.2d 412 (1976); Wachovia Mtg. Co. v. Autry-Barker-Spurrier Real Estate, Inc., 39 N.C. App. 1, 249 S.E.2d 727 (1978); Mosley v. National Fin. Co., 36 N.C. App. 109, 243 S.E.2d 145 (1978); Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980); Murray v. Allstate Ins. Co., 51 N.C. App. 10, 275 S.E.2d 195 (1981); Briggs v. Mid-State Oil Co., 53 N.C. App. 203, 280 S.E.2d 501 (1981); Gower v. Strout Realty, Inc., 56 N.C. App. 603, 289 S.E.2d 880 (1982); Poore v. Swan Quarter Farms, Inc., 57 N.C. App. 97, 290 S.E.2d 799 (1982); Brown v. Lanier, 60 N.C. App. 575, 299 S.E.2d 279 (1983); African Methodist Episcopal Zion Church v. Union Chapel A.M.E. Zion Church, 64 N.C. App. 391, 308 S.E.2d 73 (1983); George Shinn Sports, Inc. v. Bahakel Sports, Inc., 99 N.C. App. 481, 393 S.E.2d 580 (1990); Fox v. Killian, 102 N.C. App. 819, 403 S.E.2d 546 (1991); Bonestell v. North Topsail Shores Condominiums, Inc., 103 N.C. App. 219, 405 S.E.2d 222 (1991); Brandis v. Lightmotive Fatman, Inc., 115 N.C. App. 59, 443 S.E.2d 887 (1994); Trapp v. Maccioli, 129 N.C. App. 237, 497 S.E.2d 708 (1998); Abe v. Westview Capital, 130 N.C. App. 332, 502 S.E.2d 879 (1998); Howze v. Hughs, 134 N.C. App. 493, 518 S.E.2d 198 (1999); Clark v. Visiting Health Prof'ls, Inc., 136 N.C. App. 505, 524 S.E.2d 605 (2000); Harrold v. Dowd, 149 N.C. App. 777, 561 S.E.2d 914 (2002); Ausley v. Bishop, 150 N.C. App. 56, 564 S.E.2d 252 (2002); Summey v. Barker, 357 N.C. 492, 586 S.E.2d 247 (2003); Hunter v. Guardian Life Ins. Co. of Am., 162 N.C. App. 477, 593 S.E.2d 595 (2004), cert. denied, 358 N.C. 543, 599 S.E.2d 48, 599 S.E.2d 49 (2004); Rauch v. Urgent Care Pharm., Inc., 178 N.C. App. 510, 632 S.E.2d 211 (2006); Wells v. Cumberland County Hosp. Sys., 181 N.C. App. 590, 640 S.E.2d 400 (2007); Higgins v. Spence & Spence, - F. Supp. 2d - (E.D.N.C. Feb. 21, 2008); N.C. State Bar v. Gilbert, 189 N.C. App. 320, 663 S.E.2d 1 (2008), review denied, 362 N.C. 682, 670 S.E.2d 234 (2008); Cornett v. Watauga Surgical Group, P.A., 194 N.C. App. 490, 669 S.E.2d 805 (2008); Barringer v. Wake Forest Univ. Baptist Med. Ctr., 197 N.C. App. 238, 677 S.E.2d 465 (2009); Estate of Tallman v. City of Gastonia, 200 N.C. App. 13, 682 S.E.2d 428 (2009); State v. Haymond, 203 N.C. App. 151, 691 S.E.2d 108 (2010); Blackburn v. Carbone, 208 N.C. App. 519, 703 S.E.2d 788 (2010), dismissed and review denied 365 N.C. 194, 710 S.E.2d 52, 2011 N.C. LEXIS 537 (N.C. 2011); Cousart v. Charlotte-Mecklenburg Hosp. Auth., 209 N.C. App. 299, 704 S.E.2d 540 (2011), review denied 717 S.E.2d 375, 2011 N.C. LEXIS 672 (N.C. 2011); Stinchcomb v. Presbyterian Med. Care Corp., 211 N.C. App. 556, 710 S.E.2d 320 (2011), review denied 717 S.E.2d 376, 2011 N.C. LEXIS 670 (N.C. 2011); Goodman v. Living Centers-Southeast, Inc., 234 N.C. App. 330, 759 S.E.2d 676 (2014); Wheeless v. Maria Parham Med. Ctr., Inc., 237 N.C. App. 584, 768 S.E.2d 119 (2014); Murphy v. Hinton, 242 N.C. App. 95, 773 S.E.2d 355 (2015).

Finks v. Middleton, 251 N.C. App. 401, 795 S.E.2d 789 (2016); Wilson v. Pershing, LLC, 253 N.C. App. 643, 801 S.E.2d 150 (2017); Parmley v. Barrow, 253 N.C. App. 741, 801 S.E.2d 386 (2017);.

II. CAPACITY.

This Rule and G.S. 1A-1, Rule 17(a) Compared. - G.S. 1A-1, Rule 17(a) deals not only with real party in interest questions, but also with questions relating to capacity to sue, which are not solely governed by this rule, while this rule sets out those things which must be specially and specifically pleaded, one of which is the capacity in which plaintiff sues. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Standing. - Trial court properly found that a neighborhood association did not have standing to bring suit in a rezoning matter. While G.S.1-69.1(b) eliminated the pleading requirements set forth in G.S. 1-69.1(a)(3), G.S. 1A-1, N.C. R. Civ. P. 9(a) required the association to affirmatively aver that it was an unincorporated nonprofit association; the association failed to make an affirmative averment showing its legal existence and capacity to sue. N. Iredell Neighbors for Rural Life v. Iredell County, 196 N.C. App. 68, 674 S.E.2d 436 (2009).

Plaintiff in a wrongful death action must allege and prove that he has the capacity to sue. Burcl v. North Carolina Baptist Hosp., 306 N.C. 214, 293 S.E.2d 85 (1982).

Complaint Need Not Allege What Type of Legal Entity Defendant Is. - The defendant in a civil action must be an existing legal entity, either natural or artificial; however, it is not necessary to allege in the complaint what type of legal entity the defendant is. Rollins v. Junior Miller Roofing Co., 55 N.C. App. 158, 284 S.E.2d 697 (1981).

Allegations that a party is a member of and properly represents a class under G.S. 1A-1, Rule 23 suffice as the "affirmative averment" of "capacity and authority to sue" required by subsection (a) of this rule. Crow v. Citicorp Acceptance Co., 319 N.C. 274, 354 S.E.2d 459 (1987).

III. FRAUD, DURESS, MISTAKE, ETC.

.

Allegations establishing fraud must be stated with particularity. von Hagel v. Blue Cross & Blue Shield, 91 N.C. App. 58, 370 S.E.2d 695 (1988).

Allegations of fraud are subject to more exacting pleading requirements than are generally demanded by our liberal rules of notice pleading. Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901 (1988).

Where plaintiff consumers in a proposed class action admitted that the named consumers did not have grounds for any relief against defendant law firm under the North Carolina Racketeer Influenced and Corrupt Organizations Act (NCRICO), G.S. 75D-8(c), because they suffered no injury to their business or property, and instead argued the absent class members would be able to do so, the named consumers, who pleaded mail and wire fraud as predicate acts to show violation of NCRICO, could not provide the required facts to plead fraud as against the class members with particularity, as was required by Fed. R. Civ. P. 9(b) and G.S. 1A-1, Rule 9(b), and thus, is was appropriate to dismiss the NCRICO claim for failure to state a claim. Godfredson v. JBC Legal Group, P.C., 387 F. Supp. 2d 543 (E.D.N.C. 2005).

Town's fraud claim against landowners and a hospital for proposing to close a hospital built on land the town granted failed because, inter alia, the town did not allege fraud with the required particularity. Town of Belhaven v. Pantego Creek, LLC, 250 N.C. App. 459, 793 S.E.2d 711 (2016).

This rule requires that the circumstances constituting the defense of duress be pled with particularity. Stewart v. Stewart, 61 N.C. App. 112, 300 S.E.2d 263 (1983).

The requirement of particularity in section (b) must be reconciled with G.S. 1A-1, Rule 8, which requires a short and concise statement of claims, and with the general notice pleading theory of the Rules of Civil Procedure. Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718 (1981).

Section (b) is in contrast to the notice pleading approach adopted upon the enactment of G.S. 1A-1, Rule 8(a), and is essentially a codification of former case law of this State with respect to pleading fraud. Girard Trust Bank v. Belk, 41 N.C. App. 328, 255 S.E.2d 430, cert. denied, 298 N.C. 293, 259 S.E.2d 299 (1979).

Notice Pleading Not Applicable to Fraud. - The provision of G.S. 1A-1, Rule 8 that pleadings are to be liberally construed under the notice theory of pleadings does not apply to fraud cases. In a fraud case, the plaintiff must allege all material facts and circumstances constituting the fraud with particularity. Rosenthal v. Perkins, 42 N.C. App. 449, 257 S.E.2d 63 (1979).

A claim for relief based on fraud is unique and must be pleaded with particularity even under the liberal rules of notice pleading. Stanford v. Owens, 76 N.C. App. 284, 332 S.E.2d 730, cert. denied, 314 N.C. 670, 336 S.E.2d 402 (1985).

The pleading with particularity required by section (b) of this rule is complemented by G.S. 1A-1, Rule 15(b). Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203 (1984).

The purpose of G.S. 1A-1, Rule 9(b), and its relation to G.S. 1A-1, Rule 15(c), is because fraud embraces such a wide variety of potential conduct that the alleged fraudulent party needs particularity of allegations in order to meet the evidentiary remands of the charges; this is one reason why a claim of fraud must allege all material facts and circumstances constituting fraud with particularity. State Farm Fire & Cas. Co. v. Darsie, 161 N.C. App. 542, 589 S.E.2d 391 (2003), cert. denied, 358 N.C. 241, 594 S.E.2d 194 (2004), cert. dismissed, 358 N.C. 241, 594 S.E.2d 193 (2004).

The purpose of prior case law and present section (b) is to require pleading of the facts upon which the plaintiff relies to establish the essential elements of fraud; the facts alleged must be sufficient to support a finding of the intent to deceive, the specific false representations that were made, and that the defrauded party relied upon the misrepresentations to his detriment. Girard Trust Bank v. Belk, 41 N.C. App. 328, 255 S.E.2d 430, cert. denied, 298 N.C. 293, 259 S.E.2d 299 (1979).

The purpose of this rule is to protect a defendant from unjustified injury to his reputation by requiring more particularity than is normally required by notice pleading, because fraud embraces such a wide variety of potential conduct that the defendant needs particularity of allegation in order to meet the charges. Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981).

What Constitutes Fraud. - The vitals of the creature of fraud are well established: There must be a misrepresentation of material fact, made with knowledge of its falsity and with intent to deceive, which the other party reasonably relies on to his deception and detriment. Terry v. Terry, 46 N.C. App. 583, 265 S.E.2d 463 (1980), rev'd on other grounds, 302 N.C. 77, 273 S.E.2d 674 (1981).

To prevail in a cause of action sounding in fraud, the plaintiff must prove that false representations or concealments were made with knowledge of the truth or with reckless indifference thereto. Watts v. Cumberland County Hosp. Sys., 74 N.C. App. 769, 330 S.E.2d 256 (1985), rev'd in part on other grounds, 317 N.C. 110, 343 S.E.2d 879 (1986).

Fraud, Duress or Mistake Must Be Alleged. - Section (b) of this rule codifies the requirement previously existing that the facts relied upon to establish fraud, duress or mistake must be alleged. Mangum v. Surles, 281 N.C. 91, 187 S.E.2d 697 (1972); In re Estate of Loftin v. Loftin, 21 N.C. App. 627, 205 S.E.2d 574, aff'd, 285 N.C. 717, 208 S.E.2d 670 (1974).

Insufficient Allegation of Fraud Subjects Plaintiff to Summary Judgment. - Plaintiff cannot simply allege fraud and thereby escape summary judgment; therefore, where plaintiff asserted defendant never intended to honor its obligations, dismissal of the issue was appropriate. Strum v. Exxon Co., 15 F.3d 327 (4th Cir. 1994).

Requirements of Pleading or Averring Fraud. - A pleading setting up fraud must allege the facts relied upon to constitute fraud, and that the alleged false representation was made with intent to deceive plaintiff, or must allege facts from which such intent can be legitimately inferred. Moore v. Wachovia Bank & Trust Co., 30 N.C. App. 390, 226 S.E.2d 833 (1976).

In pleading actual fraud the particularity requirement of this rule is met by alleging time, place and content of the fraudulent representation, identity of the person making the representation and what was obtained as a result of the fraudulent acts or representation. Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981); Watts v. Cumberland County Hosp. Sys., 75 N.C. App. 1, 330 S.E.2d 242 (1985), rev'd on other grounds, 317 N.C. 321, 345 S.E.2d 201 (1986); Lackey v. Bressler, 86 N.C. App. 486, 358 S.E.2d 560 (1987); Powell v. Wold, 88 N.C. App. 61, 362 S.E.2d 796 (1987).

The pleader must state with particularity the time, place and content of the false misrepresentation. Coley v. North Carolina Nat'l Bank, 41 N.C. App. 121, 254 S.E.2d 217 (1979).

In pleading actual fraud the particularity requirement of this rule is met by alleging time, place and content of the fraudulent representation and what was obtained as a result of the fraudulent acts or representations. Cunningham v. Brown, 51 N.C. App. 264, 276 S.E.2d 718 (1981).

Without any essential factual basis to support the plaintiff 's allegation that the defendant knowingly made false misrepresentations, a critical element of fraud, his tort claim for fraud could not withstand a motion to dismiss. Beasley v. National Sav. Life Ins. Co., 75 N.C. App. 104, 330 S.E.2d 207, discretionary review improvidently allowed, 316 N.C. 372, 341 S.E.2d 338 (1986); Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901 (1988).

The well-recognized elements of fraud are 1) a false representation or concealment of a material fact, 2) reasonably calculated to deceive, 3) made with intent to deceive, 4) which does in fact deceive, and 5) which results in damage to the injured party. A complaint charging fraud must allege these elements with particularity. Hunter v. Spaulding, 97 N.C. App. 372, 388 S.E.2d 630 (1990).

Plaintiff's pleadings were sufficient to allege the separation and property settlement agreement was procured by fraud and the breach of fiduciary duty, in that she alleged she and the defendant were married at the time the agreement was executed and there was evidence presented, without objection, that defendant failed to disclose the existence of his State Retirement Account. The defendant's admission that he inadvertently failed to disclose the existence of his State Retirement Account, was tantamount to an amendment to the complaint that he failed to disclose a material asset. Sidden v. Mailman, 137 N.C. App. 669, 529 S.E.2d 266 (2000).

It was error to dismiss an insured's fraud and constructive fraud claims for failure to plead with sufficient particularity under G.S. 1A-1, N.C. R. Civ. P. 9(b), since the insured outlined the fiduciary relationship the insured had with an agent, and through the agent, with an insurer, and put forward allegations of forgery and deception that culminated in the denial of the insured's claim for underinsured motorist coverage. Piles v. Allstate Ins. Co., 187 N.C. App. 399, 653 S.E.2d 181 (2007), review denied, 362 N.C. 361, 663 S.E.2d 316 (2008).

Airline group's third-party complaint against an aviation services company adequately alleged claims for fraud in the inducement, with sufficient particularity to satisfy the requirements of N.C. R. Civ. P. 9(b), because the airline group alleged that representatives of the aviation services company made false statements to induce the airline group to enter into lease agreements which resulted in damages to the airline group. Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162 (2012), review denied, 743 S.E.2d 189, 2013 N.C. LEXIS 531 (2013).

Actual fraud and constructive fraud satisfy the particularity requirement in varying ways. Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203 (1984).

The very nature of constructive fraud defies specific and concise allegations. This particularity requirement may be met by alleging facts and circumstances (1) which created the relation of trust and confidence, and (2) which led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff. Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203 (1984).

Less Particularity Required in Alleging Constructive Fraud. - A constructive fraud claim requires less particularity, as it is based on a confidential relationship rather than a specific misrepresentation; the particularity requirement for alleging constructive fraud may be met by alleging facts and circumstances which created the relation of trust and confidence and which led up to and surrounded the consummation of the transaction in which defendant is alleged to have taken advantage of his position of trust to the hurt of plaintiff. Terry v. Terry, 302 N.C. 77, 273 S.E.2d 674 (1981).

Mere generalities and conclusory allegations of fraud will not suffice under section (b). Moore v. Wachovia Bank & Trust Co., 30 N.C. App. 390, 226 S.E.2d 833 (1976).

In order to state a cause of action for fraud, facts must be alleged which, if true, would constitute fraud, it not being sufficient to allege the elements of fraud in general terms. Watts v. Cumberland County Hosp. Sys., 74 N.C. App. 769, 330 S.E.2d 256 (1985), rev'd in part on other grounds, 317 N.C. 110, 343 S.E.2d 879 (1986).

Reliance Must Be Pleaded. - Section (b) of this rule requires allegations as to all of the elements of fraud, including plaintiff's reasonable reliance. Foley v. L & L Int'l, Inc., 88 N.C. App. 710, 364 S.E.2d 733 (1988).

Failure to Allege Intent. - Where plaintiffs failed to allege defendants' intent at the time the alleged fraudulent representations were made, that portion of the trial court's order granting summary judgment for defendants on the fraudulent misrepresentation of recreational facilities claim was not error since this rule requires that fraud be pleaded with particularity. Leake v. Sunbelt Ltd., 93 N.C. App. 199, 377 S.E.2d 285, cert. denied, 324 N.C. 578, 381 S.E.2d 774 (1989).

Failure to Identify Specific Individuals Who Made Statements. - Trial court properly dismissed plaintiffs' claims for fraud and fraud in the inducement for failure to plead fraud with particularity under G.S. 1A-1, N.C. R. Civ. P. 9 where plaintiffs alleged that defendants made fraudulent and false statements, but failed to identify the specific individuals who made the statements. Timothy L. Hardin v. York Mem'l Park, 221 N.C. App. 317, 730 S.E.2d 768 (2012).

Fraud by Group or Association of Persons. - The plaintiff must identify the particular individuals who dealt with him when he alleges that he was defrauded by a group or association of persons. Coley v. North Carolina Nat'l Bank, 41 N.C. App. 121, 254 S.E.2d 217 (1979).

Fraud by Corporation. - It is not sufficient to conclusorily allege that a corporation made fraudulent misrepresentations; the pleader in such a situation must allege specifically the individuals who made the misrepresentations of material fact, the time the alleged misstatements were made, and the place or occasion at which they were made. Coley v. North Carolina Nat'l Bank, 41 N.C. App. 121, 254 S.E.2d 217 (1979).

Plaintiff's claim that corporation fraudulently induced him to purchase property and execute a note did not meet the particularity requirements because there was no allegation that the representations which the corporation's agent made were false or that the agent either knew them to be false or made them with reckless indifference to the truth. Trull v. Central Carolina Bank & Trust Co., 117 N.C. App. 220, 450 S.E.2d 542 (1994), cert. denied, 339 N.C. 611, 454 S.E.2d 267 (1995).

Fraud Claim Arising from Express Representation That Plaintiff 's Interests Would Be Defended Held Not Barred. - The court erroneously dismissed plaintiffs' fraud claim arising from defendant's allegedly express representation that it would defend plaintiffs' interests, since the bar evidenced by G.S. 1-50(6) was inapplicable to this particular fraud claim, plaintiffs having alleged that they were injured by defendant's intentionally deceptive express representation that defendants would provide counsel for them irrespective of barred products liability claims. Brown v. Lumbermens Mut. Cas. Co., 90 N.C. App. 464, 369 S.E.2d 367, aff'd, 326 N.C. 387, 390 S.E.2d 150 (1990).

Burden Where Duress Raised Against Summary Judgment Motion. - A party resisting a summary judgment motion through an alleged defense of duress by threat of legal proceedings, has the burden of forecasting evidence showing with particularity circumstances which tend to indicate that the alleged threats were made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings. Sound policy considerations support this approach. Were the burden otherwise, amorphous allegations and forecasts of evidence of duress, frivolous in nature, could consume valuable court time, delay resolution of disputes, and tend to force settlements less than equitable to the party accused of duress. Stewart v. Stewart, 61 N.C. App. 112, 300 S.E.2d 263 (1983).

Allegations Held Insufficient Under Section (b). - Allegations which amounted to a mere conclusion that an antenuptial contract was fraudulently procured were not sufficient under section (b). In re Estate of Loftin v. Loftin, 21 N.C. App. 627, 205 S.E.2d 574, aff'd, 285 N.C. 717, 208 S.E.2d 670 (1974).

Where defendants alleged the elements of false representation and concealment of material fact in general terms, they pleaded no facts which, if true, would have constituted fraudulent concealment by plaintiff of the financial condition of corporation. Consequently, defendants' allegation about the books and records did not satisfy the particularity requirement of section (b) of this rule, and dismissal of defendants' amended counterclaim under G.S. 1A-1, Rule 12(b)(6) was proper. Chesapeake Microfilm, Inc. v. Eastern Microfilm Sales & Serv., Inc., 91 N.C. App. 539, 372 S.E.2d 901 (1988).

Because a potential property purchaser did not allege the time nor place where an individual's and company's purported fraudulent representations to the purchaser occurred, and the allegations did not state with particularity the content of the purported fraudulent representations, the complaint did not sufficiently set out a fraud claim and had to be dismissed. S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601, 659 S.E.2d 442 (2008).

In buyer's suit alleging fraud with respect to a settlement agreement regarding his purchase of a defective boat, he failed to comply with the pleading requirements of G.S. 1A, N.C. R. Civ. P. 9(b) because he did not identify any specific fraudulent statements regarding agreed-upon repairs to the boat or identify the speakers of the allegedly fraudulent statements. Hardin v. KCS Int'l, Inc., 199 N.C. App. 687, 682 S.E.2d 726 (2009).

Survivors' common law fraud claims against cemetery companies were pled with insufficient particularity because the survivors failed to state (1) the time, place, or content of the alleged misrepresentations; (2) the particular person making the misrepresentation; and (3) whether the survivors relied on these misrepresentations. Birtha v. Stonemor, N.C. LLC, 220 N.C. App. 286, 727 S.E.2d 1 (2012).

LLC members' allegations that an LLC failed to respond to demands for information as to the operations of the LLC and failed to disclose that the LLC had not purchased the property it planned to develop failed to state a claim for fraud because they did not allege reasonable reliance on any omission, or any act precluding their access to public records which would have revealed the true ownership of the property. Island Beyond, LLC v. Prime Capital Group, LLC, (2013).

Trial court properly granted a landscaper summary judgment on property owners' fraud clam because the owners did not detail any content of the landscaper's allegedly fraudulent promises. Rider v. Hodges, 255 N.C. App. 82, 804 S.E.2d 242 (2017).

Trial court properly granted a landscaper summary judgment on property owners' fraud clam because the owners could not claim they were deceived by the invoice if they recognized it was false upon receiving it; since the owners were not induced to pay the landscaper more than the amount they had already given him, they could not claim that they were damaged by the invoice's alleged inaccuracies. Rider v. Hodges, 255 N.C. App. 82, 804 S.E.2d 242 (2017).

Judgment creditor's conspiracy to defraud claim against an insurer failed because (1) conspiracy depended on an adequately pled underlying claim, and (2) the claim was not pled with required particularity, as the claim made only conclusory allegations of the insurer's liability for a judgment against a debtor and fraudulent acts to avoid paying the judgment. USA Trouser, S.A. de C.V. v. Williams, 258 N.C. App. 192, 812 S.E.2d 373 (2018).

IV. CONDITIONS PRECEDENT.

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Section (c) contains the same provisions as Rule 9(c) of the Federal Rules of Civil Procedure. Clary v. Alexander County Bd. of Educ., 286 N.C. 525, 212 S.E.2d 160 (1975).

Failure of Occurrence of Necessary Condition. - Where a party intends to rely upon failure of the occurrence of a necessary condition, such failure should be specially pleaded in the answer. Spencer Oil Co. v. Welborn, 20 N.C. App. 681, 202 S.E.2d 618, cert. denied, 285 N.C. 235, 204 S.E.2d 25 (1974).

Allegations of Conditions Precedent in Action to Condemn Land for Urban Renewal. - A petition to condemn land for urban renewal was sufficient under the Rules of Civil Procedure to state a claim for relief where it gave notice of the nature and basis of the petitioners' claim and the type of case brought and alleged generally occurrence or performance of the conditions precedent statutorily required. Redevelopment Comm'n v. Grimes, 277 N.C. 634, 178 S.E.2d 345 (1971).

The trial court erred in dismissing the plaintiffs' complaint in the context of a Rule 12(b)(6) motion for failure to comply with the statutory requirements of a derivative action where the plaintiffs had complied with G.S. 1A-1-9(c); G.S. 55-7-42 does not require that the complaint in a derivative proceeding state how the demand requirement was met although its predecessor statute (G.S. 55-7-40) required that a plaintiff allege his efforts "with particularity." Norman v. Nash Johnson & Sons' Farms, Inc., 140 N.C. App. 390, 537 S.E.2d 248 (2000).

Statutes of Repose Are Conditions Precedent Which Must Be Specifically Pled. - An action alleging faulty construction of a house was barred by the statute of repose where the case was not filed until more than six years after the house was substantially completed and occupied as a residence, and the homeowners failed to show that the construction company's conduct amounted to more than mere negligence. Moore v. F. Douglas Biddy Constr., Inc., 161 N.C. App. 87, 587 S.E.2d 479 (2003).

V. SPECIAL DAMAGES.

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Facts giving rise to special damages must be alleged so as to fairly inform defendant of the scope of plaintiff 's demand. Stanford v. Owens, 46 N.C. App. 388, 265 S.E.2d 617, cert. denied, 301 N.C. 95, 273 S.E.2d 300 (1980).

Special damages must be specifically pleaded and proved, and the facts giving rise to the special damages must be sufficient to inform the defendant of the scope of plaintiff 's demand. Gillespie v. Draughn, 54 N.C. App. 413, 283 S.E.2d 548 (1981), cert. denied, 304 N.C. 726, 288 S.E.2d 805 (1982); Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378 (1987).

Under this rule, each claimed item of special damage must be averred. Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378 (1987).

Dismissal for Insufficient Allegation of Special Damage. - Where special damage is an integral part of a claim for relief, its insufficient allegation could provide the basis for dismissal under G.S. 1A-1, Rule 12(b)(6). Stanback v. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979).

Special damage, as that term is used in the law of defamation, means pecuniary loss, as distinguished from humiliation. Williams v. Rutherford Freight Lines, 10 N.C. App. 384, 179 S.E.2d 319 (1971).

Pleading Factors in Support of Claim for Punitive Damages. - By setting forth facts to support unfair and deceptive trade practices, conversion, and punitive damages claims, specifically stating that these allegations were "common to all claims," setting forth the fraudulent statements alleged of the lessors regarding their inability to provide the lessees with access to their store, and specifically requesting that the court impose punitive damages against the lessors for their wanton, reckless, and malicious actions, the lessees gave sufficient notice of the events or transactions that produced the claim of punitive damages as required under G.S. 1A-1, N.C. R. Civ. P. 9(k). Zubaidi v. Earl L. Pickett Enters., 164 N.C. App. 107, 595 S.E.2d 190 (2004).

In an action for damages by four police officers against a rapper, a record company, and others, although the complaint did not specifically allege malice as an aggravating factor supporting an award of punitive damages, the complaint sufficiently complied with the requirements of G.S. 1A-1, N.C. R. Civ. P. 9(k) because it included a demand for punitive damages and an allegation of defamation per se, together with an allegation that the defendants made a statement with knowledge that the statement was false. Nguyen v. Taylor, 219 N.C. App. 1, 723 S.E.2d 551 (2012).

It was error to award an employee punitive damages against an employer because the employee did not plead such damages. Wiley v. L3 Communs. Vertex Aero., LLC, 251 N.C. App. 354, 795 S.E.2d 580 (2016).

Operating losses are special damages which must be alleged under section (g) and are consequential damages which are recoverable under G.S. 25-2-715(2) if defendant knew or reasonably could have foreseen that the probable result of a malfunctioning product would be such operating losses. Rodd v. W.H. King Drug Co., 30 N.C. App. 564, 228 S.E.2d 35 (1976).

When Loss of Profits Recoverable as Special Damages in Personal Injury Suits. - In personal injury suits, loss of profits are recoverable as special damages if properly pleaded as such under section (g), if they arise naturally and proximately from the injury, and if they are reasonably definite and certain. Ponder v. Budweiser of Asheville, Inc., 30 N.C. App. 200, 226 S.E.2d 539, cert. denied, 291 N.C. 176, 229 S.E.2d 690 (1976).

Sum Allegedly Spent to Repair Water System as Special Damages. - A sum which plaintiff allegedly spent in its efforts to repair a water system installed by defendant was an item of special damages which should have been specifically pleaded; failure of plaintiff to so plead required that the portion of the judgment awarding the special damages be vacated. Windfield Corp. v. McCallum Inspection Co., 18 N.C. App. 168, 196 S.E.2d 607 (1973).

Remedy Where Pleading for Special Damages Is Vague. - Where plaintiff pleaded business losses as special damages, however vaguely and ambiguously, defendants' proper remedy was a motion for a more definite statement under G.S. 1A-1, Rule 12(e), and not dismissal under G.S. 1A-1, Rule 12(b)(6). Johnson v. Bollinger, 86 N.C. App. 1, 356 S.E.2d 378 (1987).

Plaintiff's alienation of affection complaint which averred both malice and willful and wanton conduct as the relevant aggravating factors under G.S. 1D-15 was not required to state with particularity the circumstances underlying these factors. Ward v. Beaton, 141 N.C. App. 44, 539 S.E.2d 30 (2000), cert denied, 353 N.C. 398, 547 S.E.2d 431 (2001).

Pleading Factors in Support of Claim for Loss of Use of Property. - Plaintiffs pled sufficient facts in their affidavit of complaint to warrant an award for the loss of use of their boat as a result of a conservation officer causing a collision where plaintiffs showed it was possible to repair the damaged boat at a reasonable cost and within a reasonable time; however, the award for loss of use to plaintiffs was increased to include the minimum finance payments per month plaintiffs were required by law to pay while the boat was being repaired. Sprinkle v. N.C. Wildlife Res. Comm'n, 165 N.C. App. 721, 600 S.E.2d 473 (2004).

Damages Were Not Required to be Pleaded as Special Damages. - Damages awarded to an airline group were the natural and logical result of an aviation services company's actions and were not required to be pleaded as special damages under N.C. R. Civ. P. 9(g). Tradewinds Airlines, Inc. v. C-S Aviation Servs., 222 N.C. App. 834, 733 S.E.2d 162 (2012), review denied, 743 S.E.2d 189, 2013 N.C. LEXIS 531 (2013).

VI. LIBEL AND SLANDER.

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Failure to State Defamatory Words Verbatim Not Fatal. - In an action for slander, plaintiff 's failure to state the defamatory words verbatim in the complaint did not render the complaint fatally defective, since the words attributed to defendant must be alleged only substantially or with sufficient particularity to enable the court to determine whether the statement was defamatory. Stutts v. Duke Power Co., 47 N.C. App. 76, 266 S.E.2d 861 (1980).

Right of Defendant to Plead and Prove Truth and Other Mitigating Circumstances. - This rule does not require the defendant in a libel and slander action to reveal whether he intends to prove the defense of truth; the latter portion of this rule allows the defendant to plead and prove truth and/or other mitigating circumstances. Alpar v. Weyerhaeuser Co., 20 N.C. App. 340, 201 S.E.2d 503, cert. denied, 285 N.C. 85, 203 S.E.2d 57 (1974).

VII. MEDICAL MALPRACTICE.

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Constitutionality of Subsection (j) - Ruling of the North Carolina Court of Appeals that G.S. 1A-1, N.C. R. Civ. P. 9(j) was unconstitutional was premature because the medical malpractice case in which the ruling was made was based solely on res ipsa loquitur, and Rule 9(j) did not apply to medical malpractice cases based on res ipsa loquitur. Anderson v. Assimos, 356 N.C. 415, 572 S.E.2d 101 (2002).

Because the patient included a facial challenge to subsection (j), the trial court was required to proceed according to G.S. 1-267.1(a1) and G.S. 1A-1, N.C. R. Civ. P. 42(b)(4); since it did not act in accordance with G.S. 1-267.1(a1), the patient's facial challenge, if it was properly "raised," had not been heard by a three-judge panel and decided. Holdstock v. Duke Univ. Health Sys., - N.C. App. - , 841 S.E.2d 307 (2020).

Patient's stated constitutional challenge presented a "facial" challenge to G.S. 1A-1, N.C. R. Civ. P. 9(j), not an "as-applied" challenge, when the patient alleged that Rule 9(j) was an unconstitutional violation of the Seventh and Fourteenth Amendments of the United States Constitution and the North Carolina Constitution. Holdstock v. Duke Univ. Health Sys., - N.C. App. - , 841 S.E.2d 307 (2020).

Trial court was without jurisdiction to enter an order ruling on the facial constitutionality of subsection (j), and also without authority to enter an order ruling against a patient on the non-constitutional issue, because the ultimate decision of that issue was contingent on the three-judge panel's resolution of the facial challenge; therefore, the patient's appeal was interlocutory, and there was no right of interlocutory appeal provided by G.S. 1-267.1(a1). Holdstock v. Duke Univ. Health Sys., - N.C. App. - , 841 S.E.2d 307 (2020).

A Review of Hypothetical Medical Facts Satisfies Requirements of Section (j). - The plaintiff complied with the requirements of this rule where the plaintiff's counsel presented to the doctor/expert, during a telephone conversation, certain "facts" about the medical care provided decedent by the defendant/doctor and, based on this information, the doctor opined defendant breached the applicable standard of care for an anesthesiologist. Hylton v. Koontz, 138 N.C. App. 511, 530 S.E.2d 108 (2000).

Surgeon's argument was overruled as it related to whether expert testimony was required to establish the side effects of the drugs taken by the surgeon prior to the decedent's operation where the questions regarding the side effects were asked to confirm the inference that the surgeon was negligent while performing the surgery by leaving a sponge in the decedent's intestine, and thus, the standard of care was established pursuant to the doctrine of res ipsa loquitur. Nicholson v. Thom, 236 N.C. App. 308, 763 S.E.2d 772 (2014).

Expert Witness Experience Requirements. - G.S. 1A-1, N.C. R. Civ. P. 9(j) only requires that an expert witness have experience performing the procedure that is the subject of the complaint and treats similar patients, as in this case, not that both the defendant and the testifying witness have the exact same professional qualifications. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

Plaintiff's expectation that the expert would qualify to testify was reasonable; a cardiologist who annually interprets hundreds of treadmill tests can testify about the standards of care relevant to treadmill tests in a case where the treadmill test results were not properly handled by a nuclear cardiologist. The expert was also board-certified in internal medicine and cardiovascular disease and for over 40 years, he had practiced as a cardiologist, engaged in active clinical practice treating patients like the decedent. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

Expert Testimony Insufficient on Issue of Causation of Injury. - Patient's medical malpractice claim against a surgeon and anesthesiologist that he had suffered an ulnar nerve injury due to improper padding and positioning of his arm during surgery was subject to summary judgment under N.C. R. Civ. P. 9(j) because his expert could only speculate as to the cause of the ulnar nerve injury. Campbell v. Duke Univ. Health Sys., 203 N.C. App. 37, 691 S.E.2d 31 (2010), review denied 364 N.C. 434, 702 S.E.2d 220, 2010 N.C. LEXIS 782 (2010).

Plaintiffs were not required to obtain a separate Rule 9(j) extension in each county in which any named defendant was alleged to have committed negligence; therefore, the trial court erred in dismissing the plaintiffs' complaint with prejudice for their alleged failure to comply with this rule, where the complaint properly joined all defendants and was properly filed, where the Rule 9(j) extension was obtained in the proper county insofar as it applied to some of the defendants, where the appellees were properly joined in the action as additional defendants inasmuch as they were alleged to be joint tortfeasors, and where defendants failed to show how, if at all, they would be prejudiced by an interpretation of Rule 9(j) requiring a single, rather than multiple extensions. Stewart v. Southeastern Reg'l Med. Ctr., 142 N.C. App. 456, 543 S.E.2d 517 (2001), review denied, 353 N.C. 733, 552 S.E.2d 169 (2001).

Claim for Medical Malpractice Under Subsection (j) Not Appropriate. - Because the observance and supervision of plaintiff patient when she smoked in the designated smoking area did not constitute an occupation involving specialized knowledge or skill, and because preventing the patient from dropping a match or a lighted cigarette upon herself while in a designated smoking room did not involve matters of medical science, ordinary negligence were properly applied to such behaviors, and the requirements of section (j) of this rule, concerning a complaint for medical malpractice, did not apply. Taylor v. Vencor, Inc., 136 N.C. App. 528, 525 S.E.2d 201 (2000).

Certification by an expert witness was not necessary for the patient's ordinary negligence claims, despite the fact that the hospital was a health care provider, since the hospital's independent duties owed to the patient could be judged by a reasonable person standard which did not require expert testimony at trial. Sharpe v. Worland, 147 N.C. App. 782, 557 S.E.2d 110 (2001).

Certification Requirements for Medical Malpractice - Certification requirements of G.S. 1A-1, N.C. R. Civ. P. 9(j) apply only to medical malpractice cases where a plaintiff seeks to prove that a defendant's conduct breached the requisite standard of care and not to res ipsa loquitur claims. Anderson v. Assimos, 356 N.C. 415, 572 S.E.2d 101 (2002).

Complaint's allegations that a doctor improperly allowed access to and exposure of a patient's medical records by third parties stated a claim based on the doctor's administrative act, not one involving direct patient care, and therefore the plaintiff did not need certification before filing suit. Acosta v. Byrum, 180 N.C. App. 562, 638 S.E.2d 246 (2006).

Summary judgment in favor of a doctor in an executrix's refiled malpractice case was proper because, although the original complaint contained the required G.S. 1A-1-9(j) expert certification, the executrix admitted in discovery that she had not consulted with her expert until nearly seven months after the filing of her complaint, and thus the allegation in her original complaint was ineffective to meet the requirements of G.S. 1A-1-9(j); therefore, voluntary dismissal of the original complaint did not toll the statute of limitations and the refiled complaint was untimely. Winebarger v. Peterson, 182 N.C. App. 510, 642 S.E.2d 544 (2007).

Summary judgment for a doctor in a patient's medical malpractice action was proper because the patient did not allege that her complaint had been reviewed by an expert before filing suit as required by G.S. 1A-1, N.C. R. Civ. P. 9(j), and the complaint failed to set forth sufficient facts for application of res ipsa loquitor; the patient neither pled that there was no direct proof of her injury nor did she make such an argument in her brief. The patient's own testimony focused on the skin incisions made to the left knee as the source of her pain, which was sufficient to identify the cause of her injury, and which rendered res ipsa loquitor inapplicable. Rowell v. Bowling, 197 N.C. App. 691, 678 S.E.2d 748 (2009).

Patient complied with the certification requirements of G.S. 1A-1, N.C. R. Civ. P. 9(j) for a medical malpractice claim because when she filed her complaint, the patient knew that a certain doctor had reviewed her care and was willing to testify that this care fell below the applicable standard of care, and a reasonable person would have believed that this doctor was qualified to testify as an expert. Morris v. Southeastern Orthopedics Sports Med. & Shoulder Ctr., P.A., 199 N.C. App. 425, 681 S.E.2d 840 (2009), review denied, 363 N.C. 745, 688 S.E.2d 456 (2009).

Motion to dismiss was granted because the prisoner sought to hold the United States liable for the alleged negligence of its employees or staff in rendering or failing to render appropriate medical services requiring special skills. Under North Carolina law, the prisoner had to comply with N.C. R. Civ. P. 9(j), which he failed to do. Alfaro v. United States, - F. Supp. 2d - (E.D.N.C. Feb. 8, 2011).

There is a difference between whether a plaintiff could "reasonably expect" an expert to qualify as such under G.S. 1A-1, N.C. R. Civ. P. 9(j)(1) and whether the expert does in fact qualify as an expert; whether the proposed expert is reasonably expected to qualify is resolved at the time the complaint is filed, and whether the proposed expert does in fact qualify as such is resolved after discovery is completed. Moore v. Proper, 215 N.C. App. 202, 715 S.E.2d 586 (2011), aff'd in part 366 N.C. 25, 726 S.E.2d 812, 2012 N.C. LEXIS 411 (N.C. 2012).

Where an inmate was prescribed Lotrisone for tinea cruris and experienced skin thinning, loss of tissue, and bodily disfigurement, the inmate's state law claim for medical malpractice failed because the complaint did not allege that the inmate obtained certification from an expert willing to testify that the treating medical personnel did not comply with the applicable standard of care. Gardner v. Land, - F. Supp. 2d - (E.D.N.C. Jan. 31, 2011).

Language of G.S. 1A-1, N.C. R. Civ. P. 9(j) does not require a "standard" workweek or give the courts any measure for the length of time a professional must work in order to compute the majority of an expert's "professional time;" the statutory language relies on a case by case analysis of the term, and thus, a professional workweek is a factual question which the trial court must determine in making its decision. Moore v. Proper, 215 N.C. App. 202, 715 S.E.2d 586 (2011), aff'd in part 366 N.C. 25, 726 S.E.2d 812, 2012 N.C. LEXIS 411 (N.C. 2012).

Plaintiff's medical malpractice claim did not meet the requirements of N.C. R. Civ. P. 9(j) because the doctrine of res ipsa loquitur did not apply and plaintiff did not obtain certification from an expert willing to testify that plaintiff's treating medical personnel did not comply with the applicable standard of care. Shipley v. DOJ Bureau of Prisons, - F. Supp. 2d - (E.D.N.C. Sept. 13, 2011).

Where the doctrine of res ipsa loquitur was inapplicable to an estate administrator's medical malpractice action because defendants provided direct proof of the cause of a decedent's injuries, and there was no certification under G.S. 1A-1, N.C. R. Civ. P. 9(j), dismissal was warranted. Alston v. Granville Health Sys., 221 N.C. App. 416, 727 S.E.2d 877 (2012).

When a trial court based a dismissal, under G.S. 1A-1, N.C. R. Civ. P. 9(j), of a patient's dental malpractice complaint on a finding that no reasonable person could find the patient's proffered expert would qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b)(2), the court's analysis was erroneous because whether the expert would ultimately qualify under G.S. 8C-1, N.C. R. Evid. 702(b)(2) was a separate question from whether, under G.S. 1A-1, N.C. R. Civ. P. 9(j), the patient, based on what the patient reasonably knew or should have known at the time of filing the patient's complaint, reasonably expected that the expert would so qualify. Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812 (2012).

It was error for a trial court to grant summary judgment dismissing a patient's dental malpractice complaint based on a finding, under G.S. 1A-1, N.C. R. Civ. P. 9(j), that no reasonable person could find the patient's proffered expert would qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b)(2), because, when the patient filed the complaint, the patient knew or should have known (1) the proffered expert was a licensed dentist with over 35 years of full-time experience, (2) after retiring, the expert participated in continuing education and practiced dentistry on a fill-in basis, (3) it could be inferred that the expert engaged in fairly regular practice for enough hours to amount to active clinical practice, and (4) all the expert's time in the profession was spent in clinical practice, so the patient reasonably expected the expert devoted most professional time to active clinical practice during the relevant time, satisfying G.S. 1A-1, N.C. R. Civ. P. 9(j)(1), and reasonably expected the expert to qualify as an expert under G.S. 8C-1, N.C. R. Evid. 702(b)(2). Moore v. Proper, 366 N.C. 25, 726 S.E.2d 812 (2012).

Trial court erred by dismissing a medical malpractice complaint, which contained a certification under G.S. 1A-1, N.C. R. Civ. P. 9(j), because the administratrix of the decedent's estate, when the administratrix filed the complaint, could reasonably have had an expectation that a doctor would qualify as an expert, under G.S. 8C-1, N.C. R. Evid. 702. Braden v. Lowe, 223 N.C. App. 213, 734 S.E.2d 591 (2012).

Given that plaintiff's medical malpractice complaint was not certified as required by G.S. 1A-1, N.C. R. Civ. P. 9(j) the trial court correctly dismissed the complaint. Wright v. WakeMed, 238 N.C. App. 603, 767 S.E.2d 408 (2014).

Expert who provided the patient's certification testified that he was not aware of the patient's intention to assert an informed consent claim until the issue came up during depositions, and he did not review that theory before the complaint was filed and his opinion did not address that standard of care; thus, the trial court did not err in concluding that the complaint did not include the consent issue, and thus the trial court did not abuse its discretion in granting the motion excluding the patient's informed consent evidence from trial. Kearney v. Bolling, 242 N.C. App. 67, 774 S.E.2d 841 (2015).

In a medical malpractice case, the wording of a complaint did not sufficiently allege that medical records were reviewed by a person reasonably expected to qualify as an expert under this rule where the only information was "Board Certified." It was unclear whether the person was a doctor, nurse, or some other health care professional. Alston v. Hueske, 244 N.C. App. 546, 781 S.E.2d 305 (2016).

In a medical malpractice case where a complaint was dismissed as insufficient, there was no opportunity to amend the complaint, the complaint could not have been voluntarily dismissed and refiled because it was not filed with the proper certification before the running of the statute of limitation, and the appellate court had no jurisdiction to rule on a motion to correct a technical error since the motion was not made at the trial court level. Alston v. Hueske, 244 N.C. App. 546, 781 S.E.2d 305 (2016).

Where a plaintiff voluntarily dismisses a medical malpractice complaint which was timely filed in good faith but which lacked a certification, said plaintiff may re-file after the expiration of the statute of limitations provided (1) he or she files the second action within the time allowed under G.S. 1A-1, N.C. R. Civ. P. R. 41, and (2) the new complaint asserts that the expert review of the medical history and medical care occurred prior to the filing of the original complaint. Boyd v. Rekuc, 246 N.C. App. 227, 782 S.E.2d 916 (2016), review denied, 792 S.E.2d 517, 2016 N.C. LEXIS 718 (2016).

Plaintiffs' claims against hospital two pertained to alleged actions by hospitals one and two after the patient's death and did not involve the provision of medical care; a medical expert's certification was not required to validate plaintiffs' intentional infliction of emotional distress claim against hospital two, after the patient was deceased and the allegations pertained to the autopsy and removal of organs. Norton v. Scot. Mem. Hosp., Inc., 250 N.C. App. 392, 793 S.E.2d 703 (2016).

Just as subsection (j) does not expressly preclude such complainant's right to utilize a voluntary dismissal, subsection (j) does not preclude a plaintiff's right to utilize a G.S. 1A-1, N.C. R. Civ. P. 15(a), amended complaint or his or her right to have the amended complaint relate back to the date of the original filing under Rule 15(c). Vaughan v. Mashburn, 371 N.C. 428, 817 S.E.2d 370 (2018).

Plaintiff in a medical malpractice action may file an amended complaint to cure a defect in a certification when the expert review and certification occurred before the filing of the original complaint, and such an amended complaint may relate back. Vaughan v. Mashburn, 371 N.C. 428, 817 S.E.2d 370 (2018).

Court of appeals erred in affirming the dismissal of a medical malpractice action because the trial court's denial of a patient's motion to amend as being futile was based on a misapprehension of law; because the patient's amended complaint corrected a technical pleading error and made clear that the expert review required occurred before the filing of the original complaint, the amended complaint complied with subsection (j) and could properly relate back to the date of the original complaint. Vaughan v. Mashburn, 371 N.C. 428, 817 S.E.2d 370 (2018).

Trial court properly determined that a medical malpractice complaint failed to comply with G.S. 1A-1, N.C. R. Civ. P. 9(j), where the use of the word certain, instead of all, with regard to those medical records actually reviewed by an anticipated expert witness constituted a failure to comply with Rule 9(j)'s specific requirements. Fairfield v. WakeMed, 261 N.C. App. 569, 821 S.E.2d 277 (2018).

Record supported a reasonable inference that at the time of filing the second complaint, the expert was willing to testify that defendant failed to comply with a cardiologist's standard of care; while the expert was unwilling to testify against defendant purely on the basis of a report, he was willing to testify that defendant's failure to submit the report or communicate the results to the hospitalist was a breach of the standard of care. Any ambiguity in the evidence was not so unreasonable such that it was to be resolved against plaintiff. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

Patient's experts could not reasonably have been expected to testify to the applicable standard of care in a malpractice action against a dentist because the dentist was a general dentist and the malpractice claims related to the practice of general dentistry, while the experts which the patient identified were a periodontist and an oral surgeon, neither of whom regularly practiced in the field of general dentistry. The trial court on remand was to make the required findings to permit the appellate court to engage in a meaningful review. Kennedy v. Deangelo, 264 N.C. App. 65, 825 S.E.2d 15 (2019).

Certification Not Required. - Plaintiffs' claims for intentional infliction of emotional distress against hospital one did not seek damages arising from allegations of the patient's personal injury or death; rather, plaintiffs claimed they sustained emotional damage by hearing the patient call out to them prior to his death, and from being prevented from seeing him, coupled with the unconsented to removal of the ventilator, and these unique and specific factual allegations do not fall under the plain language of the rule to require a medical expert's certification. Norton v. Scot. Mem. Hosp., Inc., 250 N.C. App. 392, 793 S.E.2d 703 (2016).

It was error to dismiss a complaint against health care providers for failure to comply with G.S. 1A-1, N.C. R. Civ. P. 9(j), because the complaint alleging a patient was allowed to fall off an operating table sounded in ordinary negligence, rather than medical malpractice. Locklear v. Cummings, 253 N.C. App. 457, 801 S.E.2d 346 (2017).

Order allowing estates to amend their complaint in a medical malpractice suit was not immediately appealable where the issues of a hospital's claim that, without immediate review, it lost the right to avoid trial altogether by (1) raising the statute of limitations, (2) raising "estoppel by laches" as an affirmative defense, or (3) having the amended complaint dismissed for failure to comply with G.S. 1A-1, N.C. R. Civ. P. 9(j), were not brought before the trial court, and no substantial right was lost by the failure to allow immediate review; the estates were also entitled to sanctions against the hospital. Estate of Spell v. Ghanem, 175 N.C. App. 191, 622 S.E.2d 725 (2005).

Summary Judgment on Pleading Requirement Improper After Pleading Previously Deemed Proper. - As one judge had denied medical defendants' dismissal motion on the issue of whether a patient and her husband complied with the pleading requirements for their medical malpractice claim, a second judge's grant of summary judgment to the medical defendants on that same issue could not stand. Robinson v. Duke Univ. Health Sys., 229 N.C. App. 215, 747 S.E.2d 321 (2013), review denied, 755 S.E.2d 618, 2014 N.C. LEXIS 215 (2014).

Corporate Negligence of Hospital. - Only those claims which assert negligence on the part of a hospital which arise out of the provision of clinical patient care constitute medical malpractice actions and require Rule 9(j) certification; thus, where a corporate negligence claim arises out of policy, management, or administrative decisions, such as granting or continuing hospital privileges, failing to monitor or oversee performance of physicians, credentialing, and failing to follow hospital policies, the claim is instead derived from ordinary negligence principles and certification is not required. Estate of Waters v. Jarman, 144 N.C. App. 98, 547 S.E.2d 142, cert. denied, 354 N.C. 68, 553 S.E.2d 213 (2001).

Trial court was correct in denying defendants' motion to dismiss based on G.S. 1A-1, N.C. R. Civ. P. 9(j)(1), because Rule 9(j) certification was not required for corporate negligence claims; the claim was rooted in ordinary negligence principles, and the "reasonably prudent person" standard had to be applied. Estate of Ray v. Forgy, 227 N.C. App. 24, 744 S.E.2d 468 (2013), review denied 367 N.C. 271, 752 S.E.2d 475, 2013 N.C. LEXIS 1392 (2013), review dismissed, as moot, 752 S.E.2d 475, 2013 N.C. LEXIS 1511 (2013).

Effect of Tolling the Statute of Limitations in a Medical Malpractice Case. - A Rule 9(j) order extending the time to file a medical malpractice action tolls the statute of limitations as to defendants who are not named in the motion requesting the extension of time, as well as all defendants who are not served with notice of the extension. Webb v. Nash Hosps., Inc., 133 N.C. App. 636, 516 S.E.2d 191 (1999), cert. denied, 351 N.C. 122, 541 S.E.2d 471 (1999).

A Rule 9(j) extension by defendant to file her medical malpractice claim also tolls the statute of limitations as to her husband's loss of consortium. Webb v. Nash Hosps., Inc., 133 N.C. App. 636, 516 S.E.2d 191 (1999), cert. denied, 351 N.C. 122, 541 S.E.2d 471 (1999).

Rule Allows For Partial Dismissal. - Each of the procedural mechanisms through which G.S. 1A-1, N.C. R. Civ. P. 9(j), is raised permits judgment on less than the entire complaint; accordingly Rule 9(j) allows for partial dismissal of a complaint alleging medical malpractice. Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 731 S.E.2d 500 (2012).

Procedure Upon Motion to Dismiss. - Where a defendant challenges a plaintiff's facially valid certification that the expert was willing to testify at the time of filing, the trial court must examine the facts known or should have been known to the pleader at filing and should draw inferences in favor of the nonmoving party; when the trial court determines that reliance on disputed forecasted evidence was not reasonable, the court must make written findings to allow a reviewing court to determine whether the findings are supported by competent evidence. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

Res Ipsa Loquitur Available Where Proper Inferences Could be Drawn. - Medical defendants' argument that res ipsa loquitur was inapplicable in a patient's medical malpractice case for purposes of pleading compliance because it did not involve either a foreign object left in the body following surgery or an injury to an area far away from and completely unrelated to the zone of surgery lacked merit, as the doctrine was available in other types of medical malpractice cases as long as proper inferences could be drawn by ordinary people from proved facts which gave rise to the doctrine. Robinson v. Duke Univ. Health Sys., 229 N.C. App. 215, 747 S.E.2d 321 (2013), review denied, 755 S.E.2d 618, 2014 N.C. LEXIS 215 (2014).

Medical defendants' argument that res ipsa loquitur was inapplicable in a patient's medical malpractice case for purposes of pleading compliance lacked merit, as there was no need for expert testimony where the facts involving reattachment of the small intestine to the wrong part of the body could easily be evaluated based on common experience and knowledge. Robinson v. Duke Univ. Health Sys., 229 N.C. App. 215, 747 S.E.2d 321 (2013), review denied, 755 S.E.2d 618, 2014 N.C. LEXIS 215 (2014).

Res Ipsa Loquitur Available Where No Direct Evidence of Negligence. - Medical defendants' argument that res ipsa loquitur was inapplicable in a patient's medical malpractice case for purposes of pleading compliance lacked merit, as her assertions of defendants' negligence were only a theory of the attendant circumstances that resulted in her injury during her surgical procedure, but there was no direct evidence offered as to the precise human cause of her injury. Robinson v. Duke Univ. Health Sys., 229 N.C. App. 215, 747 S.E.2d 321 (2013), review denied, 755 S.E.2d 618, 2014 N.C. LEXIS 215 (2014).

Res Ipsa Loquitur Not Available. - Plaintiff's negligence claim sounded in medical malpractice because patient's transfer from operating room table to transport table resulted from professional health care services, as he was attached to medical lines and managing them required specific skill; res ipsa loquitur was inapplicable because layperson would need more than common knowledge to infer negligence, and as claim could proceed only as medical malpractice claim, for which there was no expert certification, this count was dismissed without prejudice. Wood v. United States, - F. Supp. 2d - (M.D.N.C. July 21, 2016).

Standard of Review. - Trial court did not err in its understanding of the rule in this medical malpractice case, and its rulings involved discretionary decisions subject to the abuse of discretion standard, not the de novo standard as one party argued. Kearney v. Bolling, 242 N.C. App. 67, 774 S.E.2d 841 (2015).

Trial Court Erred in Dismissing Claim. - G.S. 1A-1, N.C. R. Civ. P. 60(b) did not apply to an interlocutory order denying a motion to dismiss a medical malpractice case, and a trial court lacked the authority to grant relief from that denial and to dismiss the case; in any event, a decision ruling that G.S 1A-1, N.C. R. Civ. P. 9(j) was constitutional did not affect rights acquired in an earlier holding that the rule was invalid, and the trial court erred in dismissing the malpractice on the basis of G.S. 1A-1, N.C. R. Civ. P. 9(j). Rupe v. Hucks-Follis, 170 N.C. App. 188, 611 S.E.2d 867 (2005).

Trial court erred in granting summary judgment in favor of defendants and in dismissing plaintiff's medical malpractice complaint because it misapplied G.S. 1A-1, N.C. R. Civ. P. 9(j)(1) when it decided that plaintiff's tendered expert witness could not reasonably be expected to qualify since the witness would not meet the requirements for expert qualification under N.C. R. Evid. 702(b); the trial court failed to make any findings of fact, and whether the witness met the "professional time" standard of Rule 702 appeared to be a highly disputed fact, which had to be reviewed in the light most favorable to the nonmoving party. Moore v. Proper, 215 N.C. App. 202, 715 S.E.2d 586 (2011), aff'd in part 366 N.C. 25, 726 S.E.2d 812, 2012 N.C. LEXIS 411 (N.C. 2012).

Where a patient in a medical center fell due to the failure of the nurses to provide her with a cane, such a decision was one of ordinary care and did not require the exercise of clinical judgment; accordingly, an action thereon sounded in gross negligence rather than malpractice, and a certification under N.C. R. Civ. P. 9(j) was not required. Horsley v. Halifax Reg'l Med. Ctr., 220 N.C. App. 411, 725 S.E.2d 420 (2012).

Trial court erred in dismissing an executrix's medical malpractice action because the trial court neglected to enter findings of fact and conclusions of law with respect to whether the complaint presented claims against physicians and other non-nursing healthcare professionals who fell outside the purview of an expert's expertise; even if the complaint presented claims against non-nursing healthcare professionals, that fact alone would not necessarily justify the trial court's dismissal of the entire complaint. Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 731 S.E.2d 500 (2012).

It was error to dismiss a patient's second medical malpractice complaint because the patient filed his original complaint within the applicable statute of limitations; although the original complaint was filed without the required certification, the patient voluntarily dismissed his original complaint, refiled his complaint within the one year time period allowed, and asserted that the expert review of his medical care and history was conducted prior to the filing of the original complaint. Boyd v. Rekuc, 246 N.C. App. 227, 782 S.E.2d 916 (2016), review denied, 792 S.E.2d 517, 2016 N.C. LEXIS 718 (2016).

It was error to dismiss a daughter's claims arising from the daughter's mother's death which arose after the mother's death, including negligent handling of the mother's body and failure to provide bereavement services, for failure to comply with G.S. 1A-1, N.C. R. Civ. P. 9(j), because Rule 9(j) did not apply, as the claims did not involve the provision of medical care. Bennett v. Hospice & Palliative Care Ctr. of Alamance-Caswell, 246 N.C. App. 191, 783 S.E.2d 260 (2016).

Trial court erred by dismissing the patient's medical malpractice action against the physicians because at the time of the filing of the complaint, the patient had complied with this rule, as his medical expert reviewed all of the medical records pertaining to the alleged negligence available to the patient after reasonable inquiry. The production by the physicians' employer of additional records regarding the patient's medical care four years after the filing of the complaint did not defeat the complaint. Leonard v. Bell, - N.C. App. - , - S.E.2d - (Aug. 4, 2020).

Medical malpractice complaint, etc. that failed to include the certification requirement of section (j) of this rule could not be subsequently amended pursuant to G.S. 1A-1 Rule 15(a), by adding the certification and having that amendment relate back, pursuant to G.S. 1A-1, Rule 15(c). Keith v. Northern Hosp. Dist., 129 N.C. App. 402, 499 S.E.2d 200 (1998), cert. denied, 348 N.C. 693, 511 S.E.2d 646 (1998).

A patient was not required to assert in his complaint that his medical care had been reviewed by an expert, where he sued his doctor for negligently breaking his hip while moving him from an examination table to his wheelchair, because moving the patient was predominantly a manual activity not requiring specialized knowledge or skill. Lewis v. Setty, 130 N.C. App. 606, 503 S.E.2d 673 (1998).

The plaintiffs' voluntary dismissal pursuant to Rule 41(a)(1) effectively extended the statute of limitations by allowing plaintiffs to refile their medical malpractice complaint against defendants within one year, even though the original complaint lacked a Rule 9(j) certification. Brisson v. Kathy A. Santoriello, M.D., P.A., 351 N.C. 589, 528 S.E.2d 568 (2000).

Trial court properly dismissed decedent's wife's medical malpractice action with prejudice on the basis that she failed to comply with this section, by tendering as a witness a general surgeon whom she could not have reasonably expected to qualify as an expert witness against general practitioner under G.S. 8C-1, Rule 702. Allen v. Carolina Permanente Med. Group, P.A., 139 N.C. App. 342, 533 S.E.2d 812 (2000).

Once a party receives and exhausts the 120-day extension of time in order to comply with G.S. 1A-1, Rule 9(j)'s expert certification requirement, the party cannot amend a medical malpractice complaint to include expert certification. Expert review of a medical malpractice claim under G.S. 1A-1, Rule 9(j) must take place before the filing of the complaint. Thigpen v. Ngo, 355 N.C. 198, 558 S.E.2d 162 (2002).

Medical center and the doctors' motion to dismiss the inmate's malpractice claim pursuant to Fed. R. Civ. P. 12(b)(6) was granted because the inmate's complaint failed to assert that the medical care had been reviewed by a person who was reasonably expected to qualify as an expert witness as required by the North Carolina Rules of Civil Procedure for medical malpractice actions, G.S. 1A-1, N.C. R. Civ. P. 9, and the inmate's claim of negligent hiring against the medical center, which was based on the failure of an emergency room physician to provide adequate care, was actually a medical malpractice case which required a certification. Frazier v. Angel Med. Ctr., 308 F. Supp. 2d 671 (W.D.N.C. 2004).

Trial court properly dismissed an estate's medical malpractice suit against the hospital defendants, the medical practice defendants, and a doctor where a first complaint that was voluntarily dismissed did not contain a G.S. 1A-1, N.C. R. Civ. P. 9(j) certification, and the re-filed complaint was filed after the statute of limitations expired and the 120-day extension, if it had been sought, would have expired; there was no expert review prior to the commencement of the original action, which was contrary to the North Carolina legislature's intent in enacting Rule 9(j). Estate of Barksdale v. Duke Univ. Med. Ctr., 175 N.C. App. 102, 623 S.E.2d 51 (2005).

Estate's claim that at the time its original complaint was filed, it was G.S. 1A-1, N.C. R. Civ. P. 9(j) under Anderson v. Assimos, 553 S.E.2d 63 (2001), was rejected because: (1) the North Carolina Supreme Court vacated the ruling in Anderson to the extent that it concluded that Rule 9(j) was unconstitutional before the estate voluntarily dismissed its complaint, (2) once the North Carolina Supreme Court's decision became controlling, the estate was required to comply with Rule 9(j), and (3) the estate had the opportunity to amend its complaint to include the Rule 9(j) certification and to have the amendment relate back to the original filing date, but it did not do so. Estate of Barksdale v. Duke Univ. Med. Ctr., 175 N.C. App. 102, 623 S.E.2d 51 (2005).

Patient did not comply with G.S. 1A-1-9(j) since expert patient identified had orthopedic surgery specialty, and not physical medicine and rehabilitation specialty that the doctor had; even if the expert was familiar with the standard of care, that familiarity did not satisfy G.S. 8C-1-702(b)(2)a. Smith v. Serro, 185 N.C. App. 524, 648 S.E.2d 566 (2007).

Where an estate administratrix sued a hospital, asserting claims based on a decedent's fall from a hospital bed, the hospital was properly granted summary judgment because the complaint did not include certification under N.C. R. Civ. P. 9(j), which was required because the original complaint was for medical malpractice since the administratrix chose to base the complaint on the lack of restraints on decedent and the decision to apply restraints was a professional service. Sturgill v. Ashe Mem'l Hosp., Inc., 186 N.C. App. 624, 652 S.E.2d 302 (2007), review denied, 362 N.C. 180, 658 S.E.2d 662 (2008).

Expert could not reasonably be expected to qualify as an expert witness as required by G.S. 1A-1, N.C. R. Civ. P. 9(j), and did not qualify as an expert witness under G.S. 8C-1, N.C. R. Evid. 702(b) or (c) as: (1) the expert was a board certified obstetrician, (2) doctor one was a board certified emergency room physician and doctor two was a board certified trauma surgeon, (3) both doctors were acting within their capacities as specialists in treating a decedent as a trauma patient, (4) both doctor one and doctor two were properly deemed as specialists under Rule 702, and (5) the expert was not certified as either an emergency room physician or a trauma surgeon, nor did the expert practice in either of these areas. Knox v. Univ. Health Sys. of E. Carolina, Inc., 187 N.C. App. 279, 652 S.E.2d 722 (2007).

In a medical malpractice suit against an oral surgeon, the trial court erred by striking the patient's standard of care witness because (1) the expert fulfilled the "performance of the procedure" and "prior experience" requirements since the expert was licensed to perform oral surgery and performed the surgical extraction of molars, (2) the expert was a general dentist who specialized in the practice of oral surgery, and (3) the expert possessed sufficient familiarity with the city of Charlotte and the practice of dentistry therein. Roush v. Kennon, 188 N.C. App. 570, 656 S.E.2d 603 (2008), review denied, 362 N.C. 361, 664 S.E.2d 309 (2008), review dismissed, as moot, 362 N.C. 361, 664 S.E.2d 310 (2008).

Dismissal of an administratrix's second medical malpractice complaint filed after her earlier malpractice complaint was voluntarily dismissed was error because there was no evidence that the initial complaint's N.C. R. Civ. P. 9(j) certification was insufficient; the administratrix had an absolute right under N.C. R. Civ. P. 41(a)(1) to dismiss the original action and re-file her claim, regardless of whether there had been a ruling on her G.S. 8C-1, N.C. R. Evid. 702(e) motion to qualify the witness she used for the certification of her original complaint as an expert. The fact that the second complaint relied on Rule 9(j)(1) instead of Rule 9(j)(2) did not give rise to an inference that the administratrix did not reasonably expect her expert for the first certification to qualify. Ford v. McCain, 192 N.C. App. 667, 666 S.E.2d 153 (2008).

Estate administrator failed to follow the special pleading requirements for medical malpractice claims under G.S. 1A-1, N.C. R. Civ. P. 9(j) and was not entitled to an extension of the applicable two-year statute of limitations of G.S. 1-53(4) because the plain language of Rule 9(j) allowed an extension for filing a complaint, not for the purposes of locating a certifying expert, adding new defendants, or amending a defective pleading. Brown v. Kindred Nursing Ctrs. East, L.L.C., 364 N.C. 76, 692 S.E.2d 87 (Apr. 15, 2010).

Trial court erred in granting a physician and a hospital summary judgment in a child's action alleging medical negligence and breach of contract because the child's proposed experts, a doctor and a registered nurse, satisfied the elements of G.S. 8C-1, N.C. R. Evid. 702, thereby satisfying the pleading requirements of G.S. 1A-1, N.C. R. Civ. P. 9(j)(1), since the doctor was a licensed physician, and in the year prior to the incident, she spent a majority of her time in either clinical practice or teaching; the nurse had been certified as a nurse-midwife in North Carolina, she and the nurses in the case all specialized in obstetrics, and in the year prior to the incident, she spent the majority of her time actively practicing obstetrical nursing at a hospital. Grantham v. Crawford, 204 N.C. App. 115, 693 S.E.2d 245, review denied, 364 N.C. 325, 700 S.E.2d 752, 2010 N.C. LEXIS 621 (2010).

Former inmate's negligence claim against a prison doctor failed to state a claim upon which relief could be granted because the inmate did not assert that the claim had been reviewed by a an expert willing to testify that the doctor failed to comply with the applicable standard of care, and due to the nature of the inmate's medical condition, a bulla on the lung, the doctrine of res ipsa loquitur did not apply. Clark v. Keller, - F. Supp. 2d - (E.D.N.C. Aug. 17, 2011).

Because there were no findings or record evidence, it could not be presumed that the trial court intended to void an order entered by another superior court judge to afford an executrix sufficient time to comply with the extension requirements of G.S. 1A-1, N.C. R. Civ. P. 9(j). Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 731 S.E.2d 500 (2012).

Trial court did not abuse its discretion in allowing defendants to amend their answers because defendants learned through plaintiff's responses to their G.S. 1A-1, N.C. R. Civ. P. 9(j) interrogatories that an expert rendered an opinion prior to plaintiff's request for an extension of the statute of limitations; in light of that new information, defendants moved to amend their answers to assert the statute of limitations as a defense. Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 731 S.E.2d 500 (2012).

Trial court did not err dismissing a patient's medical malpractice complaint because the patient failed to file a complaint including a valid certification within the statute of limitations, and thus, granting her motion to amend her second complaint would have been futile; the complaint failed to allege that a person reasonably expected to qualify as an expert had reviewed all available medical records pertaining to the alleged negligence. Fintchre v. Duke Univ., 241 N.C. App. 232, 773 S.E.2d 318 (2015).

Trial court properly dismissed an administrator's complaint for failure to comply with the substantive and pleading requirements because the complaint sounded in medical malpractice since it contained allegations related to the professional services of one or more "health care providers"; the complaint alleged that a nursing home's staff was seeking advice and treatment options and taking directives from the on-call nurse and a certified physician's assistant with regard to a decedent's care. Estate of Baldwin v. RHA Health Servs., 246 N.C. App. 58, 782 S.E.2d 554 (2016).

In a medical malpractice action, the trial court erred in granting summary judgment in favor of defendants because it was error for the trial court to make "undisputed findings of fact" at summary judgment when the trial court's findings actually resolved a genuine issue of material fact as to whether the patient's expert reviewed the patient's medical records prior to the filing of the complaint, as required by G.S. 1A-1, Rule 9. Mangan v. Hunter, - N.C. App. - , 835 S.E.2d 878 (2019).

Claim Properly Dismissed. - Dismissal of an executrix's wrongful death action with prejudice was proper as: (1) the suit was filed more than two years after the decedent's death, and was untimely under G.S. 1-53(4); (2) the executrix had to rely on the complaint filed in the previous action, which was dismissed without prejudice, in order to have timely filed her wrongful death action; and (3) the original complaint did not comply with G.S. 1A-1, N.C. R. Civ. P. 9(j) and was defective. McKoy v. Beasley, 213 N.C. App. 258, 712 S.E.2d 712 (2011).

Trial court properly dismissed a patient's medical malpractice claim for failing to comply with the pleading requirements of G.S. 1A-1, N.C. R. Civ. P. 9(j), because the patient failed to include the expert witness certification, Rule 9(j)(1) and (2), and did not allege facts establishing negligence under the doctrine of res ipsa loquitur, Rule 9(j)(3). Smith v. Axelbank, 222 N.C. App. 555, 730 S.E.2d 840 (2012).

Motion to dismiss was granted because plaintiff's status as a former prisoner did not excuse his failure to comply with G.S. 1A-1, N.C. R. Civ. P. 9(j)'s pre-filing certification requirements with respect to his medical malpractice claim. Also plaintiff had not plausibly alleged circumstances that support the application of the res ipsa loquitur exception to Rule 9(j). Baker v. United States, - F. Supp. 2d - (E.D.N.C. Jan. 18, 2013).

Trial court correctly dismissed an administrator's complaint against a nursing home for failure to state a claim for ordinary negligence because each of the factual allegations asserted in the complaint described some kind of health care-related service, which was provided to the decedent under the direction of a "health care provider"; the complaint failed to allege what, if any, delay occurred in the decedent's medical treatment. Estate of Baldwin v. RHA Health Servs., 246 N.C. App. 58, 782 S.E.2d 554 (2016).

Some of a daughter's claims due to the daughter's mother's death were properly dismissed for non-compliance with G.S. 1A-1, N.C. R. Civ. P. 9(j) because (1) each defendant was a health care provider, as they were licensed or registered to practice medicine, hospitals, nursing homes, or adult care homes, and those legally responsible for the providers' negligence, or acting at the providers' direction or under the providers' supervision, and (2) each claim for acts occurring before the death was a "medical malpractice action," as the acts concerned providing (or not) health care. Bennett v. Hospice & Palliative Care Ctr. of Alamance-Caswell, 246 N.C. App. 191, 783 S.E.2d 260 (2016).

Plaintiffs' loss of consortium claim was derivative of and relied upon the validity of the widow's claim for injury or wrongful death and plaintiffs failed to show how their claims for wrongful death and loss of consortium did not arise from medical malpractice under the statute, which required a medical expert's certification under the rule; the trial court properly dismissed the wrongful death and loss of consortium claims due to failure to comply with the rule. Norton v. Scot. Mem. Hosp., Inc., 250 N.C. App. 392, 793 S.E.2d 703 (2016).

When a hospital patient who was injured in a fall during an x-ray examination brought a claim for ordinary negligence, the claim sounded in medical malpractice and was subject to dismissal, in that the complaint did not contain a certification of compliance, because pre-trial discovery revealed that the fall occurred when an x-ray technician was rending services requiring specialized skill and clinical judgment. Gause v. New Hanover Reg'l Med. Ctr., 251 N.C. App. 413, 795 S.E.2d 411 (2016).

Trial court properly granted defendants' motion to dismiss for failure to comply with this rule because, in a medical malpractice action premised on the assertion that defendants negligently burned plaintiff's back while performing a cardiac ablation, plaintiff's complaint failed to allege facts establishing negligence under the doctrine of res ipsa loquitur as the procedures involved in a cardiac ablation were outside of common knowledge, experience, and sense of a layperson; and, without expert testimony, a layperson would lack a basis upon which to make a determination as to whether plaintiff's back injury was an injury that would not normally occur in the absence of negligence, or was an inherent risk of a cardiac ablation. Bluitt v. Wake Forest Univ. Baptist Med. Ctr., 259 N.C. App. 1, 814 S.E.2d 477 (2018).

Nursing care claim was properly dismissed because (1) a patient's proposed expert testified in a deposition that the expert did not believe the standard of care was breached, and (2) allegedly contrary experts were not properly identified. Ingram v. Henderson Cty. Hosp. Corp., 259 N.C. App. 266, 815 S.E.2d 719 (2018).

Appellate Review. - North Carolina Supreme Court does not view the legislature's enactment of G.S. 1A-1, N.C. R. Civ. P. 9(j) as intending for the trial court to engage in credibility determinations and weigh competent evidence at this preliminary stage of the proceedings; thus, it is erroneous to conclude that a Rule 9(j) finding supported by competent evidence is binding on the appellate courts even if the evidence would support a contrary finding. Preston v. Movahed, 374 N.C. 177, 840 S.E.2d 174 (2020).

VIII. PLEADING AND PRACTICE.

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A motion for a more definite statement is the most purely dilatory of all the motions available under the Rules of Civil Procedure, and should not be granted so long as the pleading meets the requirements of G.S. 1A-1, Rule 8 and/or Rule 9 and fairly notifies the opposing party of the nature of the claim. Fisher v. Lamm, 66 N.C. App. 249, 311 S.E.2d 61 (1984).

Where the opposing party does not object to evidence outside the issues raised by the pleadings, the issue is tried with his implied consent. Benfield v. Costner, 67 N.C. App. 444, 313 S.E.2d 203 (1984).

Heightened Pleading Requirements for Fraud - Subsection (b) of this rule requires that, in all averments of fraud, the circumstances constituting the alleged fraud must be stated with particularity; i.e., the plaintiff must, at a minimum, allege time, place, and content of the fraudulent representation, the identity of the person making the representation, and what was obtained as a result of the fraud. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 580 S.E.2d 1 (2003).

Wrongful Death Complaint. - Because there was a question of fact as to whether defendant rehabilitation center and its chief operating officer followed the applicable standard of care, they were not entitled to qualified immunity under G.S. 122C-210.1 on plaintiff's wrongful death claims as a matter of law; plaintiff alleged facts that defendants had violated accepted professional judgment, practice and standards, an investigative report from the North Carolina Division of Facility Services found that the facility had failed to adequately supervise plaintiff's brother, and plaintiff's complaint was certified by an expert under N.C. R. Civ. P. 9(j) that the medical care outlined in the complaint did not comply with the applicable standard of care. Snyder v. Learning Servs. Corp., 187 N.C. App. 480, 653 S.E.2d 548 (2007).

Trial court erred in dismissing plaintiffs' wrongful death claims against the doctors based on a failure to comply with this section, because plaintiffs' complaint complied with this section and there has been no discovery conclusively establishing that plaintiffs were not reasonable in expecting their expert would qualify as an expert under G.S.8C-1, N.C. R. Evid. 702 at the time they filed their complaint. Robinson v. Halifax Reg'l Med. Ctr., - N.C. App. - , 843 S.E.2d 265 (2020).

Extension of Statute of Limitations - Wrongful death complaint was improperly dismissed under G.S. 1A-1, N.C. R. Civ. P. 12(b)(6), where visiting superior court judge had the authority to grant an extension of the statute of limitations, pursuant to G.S. 1A-1, N.C. R. Civ. P. 9(j), and administratrix filed her action within the extended time frame. Howard v. Vaughn, 155 N.C. App. 200, 573 S.E.2d 253 (2002), cert. denied, 357 N.C. 62, 579 S.E.2d 389 (2003).

In a medical malpractice case, the trial court erred in granting the doctor and hospital's motions for judgment on the pleadings pursuant to G.S. 1A-1, Rule 12(c) and denying the injured party's motion to set aside the dismissal pursuant to G.S. 1A-1, Rule 60(b), where the injured party filed the case on the last day of a 120-day extension filed an amended complaint containing certification of expert testimony, dismissed the action and then refiled the complaint; the statute of limitations for malpractice actions under G.S. 1-15(c) had not run, because the original complaint was timely filed, and the first action was properly dismissed without prejudice and properly re-filed within a year. Bass v. Durham County Hosp. Corp., 158 N.C. App. 217, 580 S.E.2d 738 (2003), cert. denied, 357 N.C. 457, 585 S.E.2d 382 (2003).

Notice of 120-Day Extension to Other Party. - A patient who was granted a 120-day extension under this rule for filing her medical malpractice complaint against a hospital was not required to serve notice on the hospital that she had been granted the extension. Timour v. Pitt County Mem. Hosp., 131 N.C. App. 548, 508 S.E.2d 329 (1998).

No Contradiction in Expert Witness Testimony - Appellate court reversed the dismissal of the patient's medical malpractice claim pursuant to G.S. 1A-1, N.C. R. Civ. P. 9(j)(1), because there was no clear contradiction by an expert witness, a non-party, in his deposition and later filed affidavit. Phillips v. A Triangle Women's Health Clinic, 155 N.C. App. 372, 573 S.E.2d 600 (2002).

Rule 9(j) Does Not Apply to Legal Malpractice Complaints. - G.S. 1A-1-9(j) applies solely to medical malpractice actions, not to legal malpractice actions. Accordingly, in a legal malpractice suit based on an attorney's actions in a medical malpractice case, it was error to dismiss the complaint because plaintiffs had not complied with the pleading requirements of Rule 9(j). Formyduval v. Britt, 177 N.C. App. 654, 630 S.E.2d 192 (2006), aff'd by an equally divided court as law of case but without precedential value, 361 N.C. 215, 639 S.E.2d 443 (2007).

Medical Malpractice Plaintiff Permitted to Amend. - Plaintiff inadvertently used N.C. R. Civ. P. 9(j) certification language from a prior version of the rule, and the trial court erred in dismissing plaintiff's complaint and denying her motion to amend; while defendants presented several arguments in support of affirming the trial court's orders that would have been persuasive under prior case law, these arguments were based on technicalities, and agreeing with defendant would violate current case law. Locklear v. Cummings, 262 N.C. App. 588, 822 S.E.2d 587 (2018).

Damages Sufficiently Pled. - Plaintiff sufficiently pleaded damages in a suit on which a default was entered, alleging damages in excess of $10,000, and while defendant may have been entitled to be heard in the hearing on damages to contest this recovery in the event he requested such an opportunity, the appellate court was not able to properly review this claim because defendant failed to include a transcript of the hearing in the record, leaving the appellate court unable to determine whether and why such a denial occurred. Lewis v. Hope, 224 N.C. App. 322, 736 S.E.2d 214 (2012).

IX. TIME AND PLACE.

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Reasonable Time to File Complaint After Statute Authorizing Extension to File Declared Unconstitutional. - Administratrix in a wrongful death action must be afforded a reasonable time to file her complaint after the statute (G.S. 1A-1, Rule 9(j)) which granted her an extension of time to obtain a certification and file her complaint was declared unconstitutional (in Anderson v. Assimos, - N.C. App. - , 553 S.E.2d 63 (2001)). Best v. Wayne Mem'l Hosp., Inc., 147 N.C. App. 628, 556 S.E.2d 629 (2001).

For the purposes of testing the timeliness of a complaint, averments of time and place are material. This allows early consideration of statute of limitations defenses, which are appropriately raised by motions to dismiss. Smith v. City of Charlotte, 79 N.C. App. 517, 339 S.E.2d 844 (1986).

X. DECISIONS UNDER PRIOR LAW.

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Editor's Note. - The cases cited below were decided under former G.S. 1-155 and 1-158.

Averment of Conditions Precedent. - Under former G.S. 1-155, in an action upon an insurance policy, the truth of the representations in the application as conditions precedent could be averred generally by stating that the party duly performed all the conditions on his part. Britt v. Mutual Benefit Life Ins. Co., 105 N.C. 175, 10 S.E. 896 (1890).

Sufficient Averment of Libel and Slander. - It is material only to aver in the complaint that the slanderous words were spoken of the plaintiff. The facts which point to them and convey to the hearer the sense in which they are used are matters of proof before the jury. Wozelka v. Hettrick, 93 N.C. 10 (1885).

Insufficient Allegation of Publication. - Where the complaint in an action for libel alleged that the defendant sent the plaintiff, through the mails, an open postcard containing libelous matter, without alleging that such matter was read by some third person, the allegation of publication was insufficient. McKeel v. Latham, 202 N.C. 318, 162 S.E. 747 (1932).

I. IN GENERAL.

Lack of Signature Did Not Deprive Court of Jurisdiction Where Petition Was Verified. - Trial court did not lack subject matter jurisdiction over the juvenile petition that the caseworker filed in the termination of parental rights case regarding the father even though the caseworker did not sign the juvenile petition; the caseworker verified the petition, which was sufficient to confer jurisdiction, and in any event, would have been allowed to amend the petition by signing it if not signing it was a problem. In re D.D.F., 187 N.C. App. 388, 654 S.E.2d 1 (2007).

Amendment of Complaint to Correct Failure to Sign Complaint. - Forty-two days after the original complaint was filed, the plaintiff's counsel realized that the complaint was unsigned, undated, and unverified and filed an amendment to the complaint, under G.S. 1A-1, N.C. R. Civ. P. 15(a), which corrected the error before any responsive pleading was filed. The plaintiff's prompt remedial measures of filing an amended, signed complaint once the plaintiff discovered the mistake conferred subject matter jurisdiction on the trial court to enable it to deal with the substantive issues raised in the pleadings and were sufficient under G.S. 1A-1, N.C. R. Civ. P. 11 and 15 to prevent the original pleading from being stricken and the action from being dismissed. Estate of Livesay v. Livesay, 219 N.C. App. 183, 723 S.E.2d 772 (2012).

Sufficiency of Verification to Confer Jurisdiction. - Representative of a local department of social services, which was acting as a state agent, was acquainted with the facts of a termination of parental rights case. Therefore, the representative's verification of the petitions alleging neglect and dependency was effective to grant jurisdiction to the trial court. In re N.X.A., 254 N.C. App. 670, 803 S.E.2d 244 (2017), review denied, 807 S.E.2d 148, 2017 N.C. LEXIS 957 (N.C. 2017).

No Lack of Credibility Implied by Absence of Verification. - Since section (a) of this rule provides that generally pleadings need not be verified, no lack of credibility is implied by the absence of a verification. Hankins v. Somers, 39 N.C. App. 617, 251 S.E.2d 640, cert. denied, 297 N.C. 300, 254 S.E.2d 920 (1979).

Verified Pleading May Be Considered as Affidavit. - There is nothing in the rules which precludes the judge from considering a verified answer as an affidavit in the cause. Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972).

To the extent that a verified pleading meets the requirements of G.S. 1A-1, Rule 56(e), then it may properly be considered as equivalent to a supporting or opposing affidavit, as the case may be. Schoolfield v. Collins, 281 N.C. 604, 189 S.E.2d 208 (1972).

Verification of Instrument for Payment of Money by Agent or Attorney Not Specifically Required. - Section (c) of this rule sets forth the circumstances and the manner in which pleadings may be verified by an agent or attorney of a party when the action or defense is founded upon a written instrument for the payment of money only, but it does not specifically require verification. Hill v. Hill, 11 N.C. App. 1, 180 S.E.2d 424, cert. denied, 279 N.C. 348, 182 S.E.2d 580 (1971).

Verification Despite Illegible Signature. - Juvenile petition contained a verification that appeared facially valid, as it was signed by an authorized representative of the director of the human services department, but the signature was illegible, and the space reserved for that person's title was blank; respondent had the burden of showing that the petition was not verified before a person authorized to administer oaths, and considering the presumption of regularity that attached to the trial court's decision to exercise jurisdiction, the appellate court had no basis to conclude that the petition was not properly verified. In re N.T., 368 N.C. 705, 782 S.E.2d 502 (2016).

As to insufficient basis to impeach verification, see Skinner v. Skinner, 28 N.C. App. 412, 222 S.E.2d 258, cert. denied, 289 N.C. 726, 224 S.E.2d 674 (1976).

In analyzing whether the complaint meets the factual certification requirement, the court must determine: whether the plaintiff (1) undertook a reasonable inquiry into the facts and (2) after reviewing the results of his inquiry, reasonably believed that his position was well grounded in fact. McClerin v. R-M Indus., Inc., 118 N.C. App. 640, 456 S.E.2d 352 (1995).

Letters to Court Within Scope of Rule. - Because an attorney's letters to the trial court were sent with the improper purpose of persuading the judge not to enter opposing counsel's proposed consent order, to revisit settled issues, and to cause unnecessary delay, the letters fell within the scope of G.S. 1A-1, N.C. R. Civ. P. 11. Once the court found that the letters met the improper purpose prong of G.S. 1A-1, N.C. R. Civ. P. 11, it was entitled to impose sanctions. Dunn v. Canoy, 180 N.C. App. 30, 636 S.E.2d 243 (2006), appeal dismissed, cert. denied, 361 N.C. 351, 645 S.E.2d 766 (2007).

Reference to "other papers" in G.S. 1A-1-11(a), should, at least, encompass letters forwarded to a court that seek to influence the court to take particular action. Dunn v. Canoy, 180 N.C. App. 30, 636 S.E.2d 243 (2006), appeal dismissed, cert. denied, 361 N.C. 351, 645 S.E.2d 766 (2007).

Plaintiff May Not File Solely to Toll Statute. - A plaintiff may not file a complaint within the time permitted by the statute of limitations for the sole purpose of tolling the statute of limitations, but with no intention of pursuing the prosecution of the action, then voluntarily dismiss the complaint and thereby gain an additional year pursuant to G.S. 1A-1, Rule 41(a)(1). Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986).

Pleading in Violation of Section (a) May Not Be Voluntarily Dismissed. - G.S. 1A-1, Rule 41(a)(1) and section (a) of this rule must be construed in pari materia to require that, in order for a timely filed complaint to toll the statute of limitations and provide the basis for a one-year "extension" by way of a G.S. 1A-1, Rule 41(a)(1) voluntary dismissal without prejudice, the complaint must conform in all respects to the rules of pleading, including section (a) of this rule. A pleading filed in violation of section (a) should be stricken as "sham and false" and may not be voluntarily dismissed without prejudice in order to give the pleader the benefit of the "saving" provision of G.S. 1A-1, Rule 41(a)(1). Estrada v. Burnham, 316 N.C. 318, 341 S.E.2d 538 (1986).

Defendant partner's verification of original answer where he was sued in his partnership capacity did not subject him to individual liability. Stevens v. Nimocks, 82 N.C. App. 350, 346 S.E.2d 180, cert. denied, 83 N.C. App. 511, 349 S.E.2d 873 (1986), reconsideration denied, 318 N.C. 702, 351 S.E.2d 760 (1987).

Petition to Review Zoning Board Decision Need Not Be Verified. - No civil procedure rule or statute requires a petition to review a zoning board decision to be verified. Little v. City of Locust, 83 N.C. App. 224, 349 S.E.2d 627 (1986), cert. denied, 319 N.C. 105, 353 S.E.2d 111 (1987).

Trial courts cannot abdicate their duties and responsibilities under G.S. 1A-1, N.C. R. Civ. P. 11 to a private attorney. Dalenko v. Collier, 191 N.C. App. 713, 664 S.E.2d 425 (2008).

Lack of Verification. - Petition for a contested case hearing, containing signatures of petitioner and his attorney, but which failed to include either an affidavit executed by petitioner or an affidavit executed by his attorney, was timely filed but was not verified under sections (b) and (c) of this rule when it was filed. Gaskill v. State ex rel. Cobey, 109 N.C. App. 656, 428 S.E.2d 474 (1993), pet. disc. rev. denied, 334 N.C. 163, 432 S.E.2d 359 (1993).

While a petition in a child neglect proceeding was notarized, the notarization reading "sworn and subscribed to before me," the petition was neither signed nor verified by the director of a county department for social services or an authorized representative of the director; thus, the petition requesting that a juvenile be adjudicated neglected was not in compliance with the statute requiring that all petitions be verified pursuant to G.S. 7B-403, and the trial court therefore lacked subject matter jurisdiction to adjudicate the matter. In re T.R.P., 173 N.C. App. 541, 619 S.E.2d 525 (2005).

Trial court lacked subject matter jurisdiction over complaints filed by plaintiffs, a former brother-in-law and his current wife, seeking entry of no-contact orders requiring defendant former brother-in-law to refrain from stalking and harassing plaintiffs, because there was no indication that either of the complaints had been properly verified as required by G.S. 50C-2 and G.S. 1A-1, N.C. R. Civ. P. 11(b). Fansler v. Honeycutt, 221 N.C. App. 226, 728 S.E.2d 6 (2012).

Lack of Evidence. - Under G.S. 57C-3-30, it was improper to name an individual member of a limited liability company as a party defendant without any evidence to support it; thus, the naming of member as an individual defendant was not well-grounded in law and therefore a violation of this section. Page v. Roscoe, 128 N.C. App. 678, 497 S.E.2d 422 (1998).

Trial court's award of sanctions was appropriate where plaintiff's verified complaint was not well grounded in fact, or based upon a reasonable inquiry; the complaint alleged then-existing direct competition, and ongoing misappropriation and disclosure of trade secrets, both of which were directly contradicted by deposition testimony. Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 568 S.E.2d 305 (2002).

Sanction Provision Not Applicable to Claims Filed Before Amendment of This Rule. - Court could not award attorneys' fees pursuant to this rule, recently amended to permit such awards, because the amendment was not effective until after the filing of the claim for declaratory relief on which the award was based. Clark v. Williamson, 91 N.C. App. 668, 373 S.E.2d 317 (1988).

Although plaintiffs and their attorney could be liable for sanctions under this Rule for signing and filing certain "other papers" for an improper purpose after January 1, 1987, the complaint in the case at bar was filed in December of 1986, and therefore could not be a basis for the imposition of sanctions. Brooks v. Giesey, 334 N.C. 303, 432 S.E.2d 339 (1993).

Dismissal does not deprive the court of jurisdiction to consider collateral issues such as sanctions that require consideration after the action has been terminated. Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992).

Neither the dismissal of a case nor the filing of an appeal deprives the trial court of jurisdiction to hear Rule 11 motions. Dodd v. Steele, 114 N.C. App. 632, 442 S.E.2d 363, cert. denied, 337 N.C. 691, 448 S.E.2d 521 (1994).

There are three separate and distinct issues to Rule 11 including: (1) legal sufficiency; (2) factual sufficiency; and (3) improper purpose. Williams v. Hinton, 127 N.C. App. 421, 490 S.E.2d 239 (1997).

There are three parts to a Rule 11 analysis: (1) factual sufficiency; (2) legal sufficiency; and (3) improper purpose; a violation of any one of these requirements mandates the imposition of sanctions under Rule 11. Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 568 S.E.2d 305 (2002).

There are three parts to a Rule 11 analysis: (1) factual sufficiency, (2) legal sufficiency, and (3) improper purpose; a violation of any one of these requirements mandates the imposition of sanctions. Dodd v. Steele, 114 N.C. App. 632, 442 S.E.2d 363, cert. denied, 337 N.C. 691, 448 S.E.2d 521 (1994); Page v. Roscoe, 128 N.C. App. 678, 497 S.E.2d 422 (1998).

Evidence at Rule 11 Hearing. - G.S. 1A-1, N.C. R. Civ. P. 11 hearing did not have to be deferred to allow other evidence as a law firm did not show what oral testimony or other evidence was necessary. Johns v. Johns, 195 N.C. App. 201, 672 S.E.2d 34 (2009).

The Improper Purpose Prong. - The improper purpose prong of this Rule is separate and distinct from the factual and legal sufficiency requirements. Certification under the rule includes three things: That the subject person has read the document, that he or she believes it to be well-grounded in fact and law, and that it is not interposed for any improper purpose. Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992).

Even if the complaint is well grounded in fact and in law, it may nonetheless violate the improper purpose prong of this rule. McClerin v. R-M Indus., Inc., 118 N.C. App. 640, 456 S.E.2d 352 (1995).

A claim, while well grounded in law, can nevertheless violate the improper purpose prong of this Rule. Taylor v. Taylor Prods. Inc., 105 N.C. App. 620, 414 S.E.2d 568 (1992), overruled on other grounds, 334 N.C. 303, 432 S.E.2d 347 (1993).

While attorney's filing of the notice of lien against former client after having withdrawn from the case violated the legal sufficiency prong of this rule, that itself did not support a strong inference of improper purpose. However, the totality of the circumstances did. Mack v. Moore, 107 N.C. App. 87, 418 S.E.2d 685 (1992).

Even if a complaint is well-grounded in fact and in law, it may nonetheless violate the improper purpose of Rule 11. Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996).

Objective Standard Used to Determine Improper Purpose. - An objective standard is used to determine the existence of an improper purpose, with the burden on the movant to prove such improper purpose. Brown v. Hurley, 124 N.C. App. 377, 477 S.E.2d 234 (1996).

Inference of Improper Purpose Inferred from Objective Behavior. - Under this rule, an objective standard is used to determine whether a paper has been interposed for an improper purpose, with the burden on the movant to prove such improper purpose. In this regard, the relevant inquiry is whether the existence of an improper purpose may be inferred from the alleged offender's objective behavior. Mack v. Moore, 107 N.C. App. 87, 418 S.E.2d 685 (1992).

Reasonableness of Belief That Claim Is Warranted. - The reasonableness of the belief that a complaint is warranted by existing law must be judged as of the time the document was signed. Taylor v. Taylor Prods. Inc., 105 N.C. App. 620, 414 S.E.2d 568 (1992), overruled on other grounds, 334 N.C. 303, 432 S.E.2d 347 (1993).

Complaint Was Filed for An Improper Purpose. - Trial court did not err in concluding that the complaint was filed for the improper purpose of harassing defendant; plaintiff's chief executive officer admitted that defendant had not violated the non-competition agreement, as was alleged in the complaint, and that there was no evidence that defendant was unwilling to abide by the non-competition agreement. Static Control Components, Inc. v. Vogler, 152 N.C. App. 599, 568 S.E.2d 305 (2002).

Trial court did not err in concluding that deputy area director for a substance abuse area authority filed an action against the authority for an improper purpose when the director instituted the action in retaliation for the authority's failure to appoint her to a position with the authority and for leverage in obtaining a settlement from the authority for her other personnel actions against the authority; furthermore, the director failed to inform, as was her duty, the board of the authority that she did not believe that the board was properly conducting closed meetings in its search to fill the position, the basis upon which the director filed her complaint when she was not selected to the position. Davis v. Durham Mental Health/Development Disabilities/Substance Abuse Area Auth., 165 N.C. App. 100, 598 S.E.2d 237 (2004).

Harassment of Former Client. - In light of the obviously strained relationship between former attorney and client, and because it is utterly unreasonable for an attorney, particularly one who has withdrawn from the case, to file an attorney's charging lien seeking recovery of fees based on both quantum meruit and a percentage of the judgment, there exists a strong inference of improper purpose, i.e., harassment, in filing the notice of lien. Accordingly, the trial court's imposition of Rule 11 sanctions based on alleged improper purpose in filing the notice of lien must be upheld. Mack v. Moore, 107 N.C. App. 87, 418 S.E.2d 685 (1992).

Subjective Beliefs and Actual Effect of Conduct Not Relevant. - Just as the Rule 11 movant's subjective belief that a paper had been filed for an improper purpose was immaterial in determining whether an alleged offender's conduct was sanctionable, whether the conduct did in fact harass was also not relevant to the issue. Rather, the dispositive question was whether the filing of the notice of lien supported a strong inference of improper purpose. Mack v. Moore, 107 N.C. App. 87, 418 S.E.2d 685 (1992).

Features of Certification. - The central feature of this rule is a certification established by the signature of the person signing the pleadings, motions, or other papers. This certification includes: (1) that the signer has conducted a reasonable inquiry into the facts that support the pleading, motion or other paper; (2) that the signer has conducted a reasonable inquiry into the law such that the paper embodies existing legal principles or a good faith argument for the extension, modification, or reversal of existing legal principles; and (3) that the paper is not interposed for any improper purpose. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Under this rule, in addition to certifying that the pleading or paper is well grounded in fact and not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, the signer also certifies that the pleading or paper is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. Mack v. Moore, 107 N.C. App. 87, 418 S.E.2d 685 (1992).

The signature of an attorney under this rule simply certifies upon reasonable inquiry that the complaint is well grounded in fact and warranted by existing law; this signature does not demonstrate that there is genuine issue of material fact, in light of evidence gathered after the complaint is filed, as to whether a plaintiff would actually have prevailed on the underlying claim. Byrd v. Arrowood, 118 N.C. App. 418, 455 S.E.2d 672 (1995).

Two-Part Analysis. - An award of sanctions under this rule on the ground that a pleading is not warranted by existing law requires a two-part analysis. First, the court must determine whether the pleading, when read in conjunction with the responsive pleadings, is facially plausible. If it is facially plausible, then the inquiry is complete, and sanctions are not proper. If the pleading is not facially plausible, then the second issue is whether to the best of the signer's knowledge, information, and belief formed after reasonable inquiry, the complaint was warranted by the existing law. dePasquale v. O'Rahilly, 102 N.C. App. 240, 401 S.E.2d 827 (1991).

In determining whether sanctions are warranted under the legal sufficiency prong of the rule, the court must first determine the facial plausibility of the paper. If the paper is facially plausible, then the inquiry is complete, and sanctions are not proper. If the paper is not facially plausible, then the second issue is (1) whether the alleged offender undertook a reasonable inquiry into the law, and (2) whether, based upon the results of the inquiry, formed a reasonable belief that the paper was warranted by existing law, judged as of the time the paper was signed. If the court answers either prong of this second issue negatively, then sanctions under this rule are appropriate. Mack v. Moore, 107 N.C. App. 87, 418 S.E.2d 685 (1992).

Involuntary Dismissal Not Required for Failure to Prosecute - The trial court did not abuse its discretion by dismissing the plaintiff's action without prejudice, under G.S. 1A-1-41, while imposing costs on the plaintiff where it found that the plaintiff had intentionally delayed prosecution in violation of this rule. Melton v. Stamm, 138 N.C. App. 314, 530 S.E.2d 622 (2000).

Reliance on Counsel by Nonlawyers as to Issues of Law. - Reliance on counsel by nonlawyers as to issues of law, is relevant, but not conclusive evidence on the issue of "reasonable inquiry." The reasonableness of the reliance would depend upon the surrounding circumstances including the extent of knowledge possessed by the lawyer about the facts of the controversy, the history and duration of the relationship between the attorney and client, and the relative expertise of the attorney relating to the legal issues involved. It is appropriate, however, to consider in evaluating the reasonableness of the inquiry that nonlawyers are not expected to appreciate the nuances of subtle legal issues. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Determining Compliance with Rule. - In determining compliance with this rule, courts should avoid hindsight and resolve all doubts in favor of the signer. Furthermore, whether the certification requirements have been met requires an objective determination. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Signature of Party Unnecessary for Sanctions. - Defendants were entitled to request sanctions against the attorney, as signer of complaint, and against plaintiffs as represented parties, regardless of whether the plaintiffs signed the complaint. Higgins v. Patton, 102 N.C. App. 301, 401 S.E.2d 854 (1991), overruled on other grounds, Bryson v. Sullivan, 330 N.C. 644, 412 S.E.2d 327 (1992).

Plaintiff's affidavits did not support the court's finding that judgment was entered as a result of mistake, inadvertence or excusable neglect, as the inadvertence, mistake, or neglect that they showed were of a kind that the law does not excuse. All the affidavits showed, when sifted down, was that in signing the court papers which enabled default judgment to be entered plaintiff's treasurer and counsel were unaware that they had sued for future rents - a matter that they could have known through the exercise of due diligence and reasonable care, and that they were required to know by G.S. 1A-1, Rule 11 of our civil procedure rules. Kimzay Winston-Salem, Inc. v. Jester, 103 N.C. App. 77, 404 S.E.2d 176, cert. denied, 329 N.C. 497, 407 S.E.2d 534 (1991).

Applied in Carolina Freight Carriers Corp. v. Local 61, 11 N.C. App. 159, 180 S.E.2d 461 (1971); Boyd v. Boyd, 61 N.C. App. 334, 300 S.E.2d 569 (1983); Bush v. BASF Wyandotte Corp., 64 N.C. App. 41, 306 S.E.2d 562 (1983); Harris v. Harris, 93 N.C. App. 67, 376 S.E.2d 502 (1989); Lowry v. Lowry, 99 N.C. App. 246, 393 S.E.2d 141 (1990); First Am. Bank v. Carley Capital Group, 99 N.C. App. 667, 394 S.E.2d 237 (1990); Oglesby v. S.E. Nichols, Inc., 101 N.C. App. 676, 401 S.E.2d 92 (1991); Boone Lumber, Inc. v. Sigmon, 103 N.C. App. 798, 407 S.E.2d 291 (1991); Harwell v. Harwell, 106 N.C. App. 389, 416 S.E.2d 595 (1992); Brooks v. Giesey, 106 N.C. App. 586, 418 S.E.2d 236 (1992); Jerry Bayne, Inc. v. Skyland Indus., Inc., 108 N.C. App. 209, 423 S.E.2d 521 (1992); Able Outdoor, Inc. v. Harrelson, 113 N.C. App. 483, 439 S.E.2d 245 (1994); Benton v. Thomerson, 339 N.C. 598, 453 S.E.2d 161 (1995); Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12 (2007), review denied, 362 N.C. 361, 661 S.E.2d 737 (2008); Fayetteville Publ. Co. v. Advanced Internet Techs., Inc., 192 N.C. App. 419, 665 S.E.2d 518 (2008); Perry v. GRP Fin. Servs. Corp., 196 N.C. App. 41, 674 S.E.2d 780 (2009); Harbin Yinhai Tech. v. Greentree Fin. Group, Inc., 196 N.C. App. 615, 677 S.E.2d 854 (2009); Lovendahl v. Wicker, 208 N.C. App. 193, 702 S.E.2d 529 (2010); Barris v. Town of Long Beach, 208 N.C. App. 718, 704 S.E.2d 285 (2010); Peters v. Pennington, 210 N.C. App. 1, 707 S.E.2d 724 (2011); Estate of Wooden v. Hillcrest Convalescent Ctr., Inc., 222 N.C. App. 396, 731 S.E.2d 500 (2012); Hennessey v. Duckworth, 231 N.C. App. 17, 752 S.E.2d 194 (2013).

Cited in Young v. Marshburn, 10 N.C. App. 729, 180 S.E.2d 43 (1971); Smith v. Starnes, 317 N.C. 613, 346 S.E.2d 424 (1986); WXQR Marine Broadcasting Corp. v. JAI, Inc., 83 N.C. App. 520, 350 S.E.2d 912 (1986); Smith v. Quinn, 91 N.C. App. 112, 370 S.E.2d 438 (1988); Smith v. Quinn, 324 N.C. 316, 378 S.E.2d 28 (1989); Coman v. Thomas Mfg. Co., 325 N.C. 172, 381 S.E.2d 445 (1989); Thorneburg Hosiery Co. v. G.L. Wilson Bldg. Co., 94 N.C. App. 769, 381 S.E.2d 718 (1989); McKinney v. Avery Journal, Inc., 99 N.C. App. 529, 393 S.E.2d 295 (1990); Alford v. Shaw, 327 N.C. 526, 398 S.E.2d 445 (1990); Battle v. Nash Technical College, 103 N.C. App. 120, 404 S.E.2d 703 (1991); Parsons v. Jefferson-Pilot Corp., 106 N.C. App. 307, 416 S.E.2d 914 (1992); In re Triscari Children, 109 N.C. App. 285, 426 S.E.2d 435 (1993); T.H. Blake Contracting Co. v. Sorrells, 109 N.C. App. 119, 426 S.E.2d 85 (1993); Pearsall v. Phillips, 839 F. Supp. 11 (E.D.N.C. 1993); Williams v. Liggett, 113 N.C. App. 812, 440 S.E.2d 331 (1994); Logan v. Logan, 116 N.C. App. 344, 447 S.E.2d 485 (1994); Wachovia Bank v. Bob Dunn Jaguar, Inc., 117 N.C. App. 165, 450 S.E.2d 527 (1994); Enzor v. North Carolina Farm Bureau Mut. Ins. Co., 123 N.C. App. 544, 473 S.E.2d 638 (1996); Robinson v. Parker, 124 N.C. App. 164, 476 S.E.2d 406 (1996), decided prior to 2001 amendment to subsection (c); Carter v. Stanly County, 125 N.C. App. 628, 482 S.E.2d 9, cert. denied, 346 N.C. 276, 487 S.E.2d 540 (1997); Mohamad v. Simmons, 139 N.C. App. 610, 534 S.E.2d 616 (2000); Harleysville Mut. Ins. Co. v. Narron, 155 N.C. App. 362, 574 S.E.2d 490 (2002); Ayers v. Patz, - N.C. App. - , - S.E.2d - (Aug. 20, 2002); Lemon v. Combs, 164 N.C. App. 615, 596 S.E.2d 344 (2004); N.C. State Bar v. Rogers, 164 N.C. App. 648, 596 S.E.2d 337 (2004); May v. Down East Homes of Beulaville, Inc., 175 N.C. App. 416, 623 S.E.2d 345 (2006), cert. denied, - N.C. - , 632 S.E.2d 176 (2006); Megremis v. Megremis, 179 N.C. App. 174, 633 S.E.2d 117 (2006); Richardson v. Bank of Am., N.A., 182 N.C. App. 531, 643 S.E.2d 410 (2007); Morris v. Moore, 186 N.C. App. 431, 651 S.E.2d 594 (2007); Willow Bend Homeowners Ass'n v. Robinson, 192 N.C. App. 405, 665 S.E.2d 570 (2008); Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008); State v. Bare, 197 N.C. App. 461, 677 S.E.2d 518 (2009); State ex rel. Johnson v. Eason, 198 N.C. App. 138, 679 S.E.2d 151 (2009); Woodard v. N.C. DOT, 201 N.C. App. 124, 684 S.E.2d 906 (2009); In re Small, 201 N.C. App. 390, 689 S.E.2d 482 (2009), review denied 2010 N.C. LEXIS 530 (2010); Schwarz Props., LLC v. Town of Franklinville, 204 N.C. App. 344, 693 S.E.2d 271 (2010); Kornegay v. Aspen Asset Group, LLC, 204 N.C. App. 213, 693 S.E.2d 723 (2010); Kelley v. Agnoli, 205 N.C. App. 84, 695 S.E.2d 137 (2010); Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1 (2010); Otto v. Certo, 210 N.C. App. 468, 708 S.E.2d 183 (2011); Stewart v. Hodge, 211 N.C. App. 605, 711 S.E.2d 175 (2011); Harrington v. Wall, 212 N.C. App. 25, 710 S.E.2d 364 (2011); Point Intrepid, LLC v. Farley, 215 N.C. App. 82, 714 S.E.2d 797 (2011); Smith v. Axelbank, 222 N.C. App. 555, 730 S.E.2d 840 (2012); Bissette v. Harrod, 226 N.C. App. 1, 738 S.E.2d 792 (2013), review denied, 747 S.E.2d 251,
2013 N.C. LEXIS 762 (2013); Woodring v. Woodring, - N.C. App. - , 742 S.E.2d 295 (2013); Woodring v. Woodring, 227 N.C. App. 638, 745 S.E.2d 13 (2013); Mancuso v. Burton Farm Dev. Co. LLC, 229 N.C. App. 531, 748 S.E.2d 738 (2013), review denied 367 N.C. 279, 752 S.E.2d 149, 2013 N.C. LEXIS 1410 (2013); Clark v. Dyer, 236 N.C. App. 9, 762 S.E.2d 838 (2014); Brown's Builders Supply, Inc. v. Johnson, 240 N.C. App. 8, 769 S.E.2d 653 (2015); Murphy v. Hinton, 242 N.C. App. 95, 773 S.E.2d 355 (2015); Comstock v. Comstock, 244 N.C. App. 20, 780 S.E.2d 183 (2015); Cushman v. Cushman, 244 N.C. App. 555, 781 S.E.2d 499 (2016); Fuhs v. Fuhs, 245 N.C. App. 367, 782 S.E.2d 385 (2016); Glover v. Dailey, 254 N.C. App. 46, 802 S.E.2d 136 (2017).

II. SANCTIONS.

Improper Purpose. - Fact that the company did not specifically ask for sanctions based on the improper purpose prong was immaterial, given the rule's explicit provision that sanctions could be imposed upon motion or the court's own initiative. ACC Constr. v. SunTrust Mortg., Inc., 239 N.C. App. 252, 769 S.E.2d 200 (2015).

Imposition of sanctions was sufficiently supported by extensive findings of fact, including that the business's claims were barred by res judicata, which was a proper basis for inferring that the present action was brought for an improper purpose, and the trial court did not err in imposing sanctions. ACC Constr. v. SunTrust Mortg., Inc., 239 N.C. App. 252, 769 S.E.2d 200 (2015).

A. IN GENERAL.

.

Courts should not impose sanctions under this rule when relief is available under another provision which more specifically addresses the situation. Overcash v. Blue Cross & Blue Shield, 94 N.C. App. 602, 381 S.E.2d 330 (1989).

Denial of Sanctions Not Insulation from Future Sanctions. - The denial of sanctions does not insulate a party or an attorney from the future imposition of sanctions under the improper purpose prong of this rule if the litigation is continued after subsequent developments in the case render it meritless. Taylor v. Taylor Prods. Inc., 105 N.C. App. 620, 414 S.E.2d 568 (1992), overruled on other grounds, 334 N.C. 303, 432 S.E.2d 347 (1993).

Considerations for Court. - This rule raises three interconnected interpretive issues for the court: (1) When has sanctionable conduct occurred? (2) Who should be sanctioned, attorney, client, or both? (3) What sanction is appropriate? Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Inadequate Researching and Filing of Pleadings by Attorney. - Prior to imposing sanctions against an attorney under this rule on the ground that the nonmovant's pleadings are not warranted by the existing law, the movant must show that the attorney's conduct in researching and filing the pleadings was not objectively reasonable. dePasquale v. O'Rahilly, 102 N.C. App. 240, 401 S.E.2d 827 (1991).

Failure of Attorney to Confirm Facts. - The attorney should be sanctioned for failure to take minimal steps to confirm the client's facts, when these facts could be verified easily by reference to the public record or to accessible documents. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Sanctions Against Attorney and Client. - Generally, since the lawyer exercises primary control over the litigation, the responsibility for improper purpose violations should rest with the lawyer. However, "the sanction may fall in equal or greater proportion upon the client as well" as this allocation serves punitive and deterrent purposes. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Sanctions Against Client. - Whether the violation of this rule is one of law, fact, or improper purpose, if the prejudice caused by the violation can only be remedied by entry of sanctions against the client, such sanctions are appropriate. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Where a party misleads an attorney as to facts or the purpose of the lawsuit, but the attorney nevertheless had an objectively reasonable basis to sign the papers in question, then sanctions on the party alone are appropriate. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

No Sanctions Against Client. - Clients should not be sanctioned when the attorney fails to ask the right questions to elicit legally relevant facts. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Allocation of Sanctions. - Sanctions should be allocated among the persons responsible for the offending pleading, motion or other paper, based upon their relative culpability. Bryson v. Sullivan, 102 N.C. App. 1, 401 S.E.2d 645 (1991), modified on other grounds, 330 N.C. 644, 412 S.E.2d 327 (1992).

Sanctions Against State. - Even though this rule does not provide for sanctions against the State, that does not mean that judge did not have jurisdiction to decide this question; when he decided it, he could not be overruled by another superior court judge. Able Outdoor, Inc. v. Harrelson, 341 N.C. 167, 459 S.E.2d 626 (1995).

Sanction Held Not Nondischargeable in Bankruptcy. - The debt owed by the defendant attorney as a result of Rule 11 sanctions imposed in a State court proceeding against him was not nondischargeable pursuant to 11 U.S.C. § 523(a)(6); although his headstrong and stubborn zealous pursuit of his client's claim may have clouded his professional judgment, his actions were neither willful nor malicious. Bryant v. Rogers, 239 Bankr. 318 (E.D.N.C. 1999).

B. GROUNDS.

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When Sanctions May Be Imposed. - To impose sanctions against a party for filing a complaint for an improper purpose, the complaint must fail either the legal or factual certification requirements of this rule. In re Finnican, 104 N.C. App. 157, 408 S.E.2d 742 (1991), cert. denied, 330 N.C. 612, 413 S.E.2d 800 (1992).

The trial court was applauded for assessing $400 in sanctions against defendants' counsel for violations of this section where he essentially attempted to refile the same counterclaims against plaintiff's counsel that had just been dismissed. Davis Lake Community Ass'n v. Feldmann, 138 N.C. App. 322, 530 S.E.2d 870 (2000).

Sanctions imposed under G.S. 1A-1-11 were not an abuse of discretion because the trial court found that there was absolutely no basis in the law for any negligence claim against a backseat passenger where it was not alleged that the passenger had any legal right or duty to control the operation of the motor vehicle driven by an underaged driver who was unlicensed under G.S. 20-11; further, there were insufficient allegations to establish a legal basis for liability for any vicarious liability, and plaintiffs' counsel had signed and certified the complaint as having merit. Harris v. DaimlerChrysler Corp., 180 N.C. App. 551, 638 S.E.2d 260 (2006).

Dismissal pursuant to G.S. 1A-1-11 was proper even though a doctor made the dismissal motion 14 months after the doctor received notice of suit as: (1) the doctor filed a first Rule 11 motion about a month after becoming aware of the alleged violations; (2) there was no requirement of prejudice before granting Rule 11 sanctions; (3) upon a finding of a Rule 11(a) violation, a sanction was mandatory; (4) the doctor was not estopped from seeking sanctions. Stocum v. Oakley, 185 N.C. App. 56, 648 S.E.2d 227 (2007), review denied, 362 N.C. 372, 662 S.E.2d 394 (2008).

When Sanctions May Not Be Imposed. - The denial of the defendants' motion for sanctions pursuant to this rule was proper where the complaint was not legally and factually deficient or filed with an improper purpose. Golds v. Cent. Express, Inc., 142 N.C. App. 664, 544 S.E.2d 23 (2001), cert. denied, 353 N.C. 725, 550 S.E.2d 775 (2001).

Sanctions against an employer were properly denied under G.S. 1A-1, N.C. R. Civ. P. 11(a) in an action for breach of a non-competition contract because all certification requirements were met; the former employee did not show that the employer knew its misstatements to the trial court were incorrect, the complaint was facially plausible, and the action was not filed for an improper purpose since the employer voluntarily dismissed it when the employee stopped working for a competitor. Kohler Co. v. McIvor, 177 N.C. App. 396, 628 S.E.2d 817 (2006).

Failure to Participate in Arbitration in Good Faith. - Failure of defendant in auto accident case to appear at arbitration hearing, and lack of evidence regarding attorney's authority, resulted in conclusion that defendant failed t